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Part 11. Communications and Liaison

Chapter 3. Disclosure of Official Information

Section 28. Disclosure to Federal Agencies for Administration of Nontax Criminal Laws

11.3.28  Disclosure to Federal Agencies for Administration of Nontax Criminal Laws

11.3.28.1  (08-01-2005)
Authority for Disclosure

  1. IRC 6103(i) primarily permits disclosure of returns and return information to officers and employees of Federal agencies for the administration of Federal nontax criminal and terrorist-related laws subject to the restrictions imposed by IRC 6103(i)(1) through IRC 6103(i)(7). Refer to Delegation Order 11-2 for those authorized to disclose information under these sections. See IRM Exhibit 1.2.49-2 for the Delegation Order 11-2 Reference Chart.

  2. IRC 6103(i) is the only section where it may be necessary to distinguish between taxpayer return information and return information (other than taxpayer return information). See IRM 11.3.28.2 for the meaning of terms pertinent to IRC 6103(i).

  3. IRC 6103(i)(1) provides that the Attorney General, Deputy Attorney General, the Associate Attorney General, any Assistant Attorney General, any U.S. Attorney, any special prosecutor (independent counsel) appointed under 28 USC 593 and any attorney in charge of an organized crime strike force (although strike forces no longer exist) may authorize an application for an ex parte order from a Federal district court judge or magistrate allowing officers and employees of a Federal agency access to returns and return information, or portions thereof. This information shall be disclosed only to officers and employees who are personally and directly engaged in:

    1. preparation for an administrative or judicial proceeding relating to the enforcement of a specifically designated Federal nontax criminal statute to which the U.S. or such agency is or may be a party;

    2. an investigation which may result in such a proceeding; or

    3. any Federal grand jury proceeding pertaining to enforcement of a nontax criminal statute to which the U.S. or a Federal agency is or may be a party.

    Note:

    This information shall be disclosed to such officers and employees solely for their use in such preparation, investigation, or grand jury proceeding.

  4. IRC 6103(i)(2) provides for a written request from the head of a Federal agency, or the Inspector General thereof, or, in the case of the Department of Justice, the Attorney General, Deputy Attorney General, the Associate Attorney General, any Assistant Attorney General, the Director of the Federal Bureau of Investigation, the Administrator of the Drug Enforcement Administration, any U.S. Attorney, any special prosecutor (independent counsel) appointed under 28 USC 593 or any attorney in charge of an organized crime strike force to request the disclosure of return information (other than taxpayer return information) to certain officers and employees of such agency. Taxpayer identity information for this purpose is not considered taxpayer return information. See IRM 11.3.28.6(4) for further discussion. This provision limits the disclosure to officers and employees who are personally and directly engaged in:

    1. preparation for any administrative or judicial proceeding relating to the enforcement of a specifically designated Federal nontax criminal statute to which the U.S. or a Federal agency is or may be a party;

    2. an investigation which may result in such a proceeding; or

    3. any Federal grand jury proceeding pertaining to the enforcement of a nontax criminal statute to which the U.S. or Federal agency is or may be a party.

    Note:

    This information shall be disclosed to such officers and employees solely for their use in such preparation, investigation, or grand jury proceeding.

    Note:

    IRC 6103(i)(2) does not permit disclosure of returns.

  5. IRC 6103(i)(3)(A) permits the Commissioner or his/her delegate to disclose in writing, return information (other than taxpayer return information) which may constitute evidence of a violation of a Federal nontax criminal statute to the extent necessary to apprise the head of the appropriate Federal agency charged with enforcement responsibility. The head of the requesting agency may redisclose such information to officers and employees of such agencies to the extent necessary to enforce such law.

  6. IRC 6103(i)(3)(B)(i) permits the Commissioner and his/her delegate to disclose return information (including taxpayer return information) to the extent necessary to apprise the appropriate officers or employees of any Federal or State law enforcement agency of the circumstances involving an imminent danger of death or physical injury to any individual. See IRM 11.3.28.9.2 regarding disclosures of tax information in terrorism and national security investigations.

  7. IRC 6103(i)(3)(B)(ii) permits the Commissioner and his/her delegate to disclose return information (including taxpayer return information) to the extent necessary to apprise appropriate officers or employees of any Federal law enforcement agency in circumstances involving the imminent flight of any individual from Federal prosecution. This provision is intended to cover individuals who could be prosecuted for flight from prosecution, as a separate Federal offense, and circumstances where an individual has attempted to change identity or intends to flee from the country.

    Note:

    See IRM 11.3.28.1(10), for information concerning IRS initiated disclosures absent emergency circumstances in terrorism and national security investigations (IRC 6103(i)(3)(C)).

  8. IRC 6103(i)(4) provides for information obtained under IRC 6103(i)(1), IRC 6103(i)(2), IRC 6103(i)(3)(A) or IRC 6103(i)(3)(C), and IRC 6103(i)(7) to be entered into evidence in an administrative or judicial proceeding subject to certain tests. See IRM 11.3.28.10 and IRM 11.3.35, Requests and Demands for Testimony and Production of Documents, for additional information. IRM Exhibit 11.3.28-5 contains sample language pertaining to IRC 6103(i)(4). The use of such return information as evidence in such proceedings is contingent upon a determination by the IRS that disclosure of the information will not seriously impair a civil or criminal tax investigation.

  9. IRC 6103(i)(5) permits disclosure of returns and return information of a fugitive pursuant to an ex parte court order by a Federal district court judge or magistrate to officers and employees of any Federal agency exclusively for their use in locating the fugitive. The same officials permitted to authorize applications for court orders under IRC 6103(i)(1) may authorize applications under IRC 6103(i)(5). These orders will be processed in the same manner as IRC 6103(i)(1) orders.

  10. The Victims of Terrorism Tax Relief Act, enacted 1/2002, set out detailed rules for disclosures in terrorism and national security investigations. These provisions were extended to 12-31-2005 by the Working Families Tax Relief Act of 2004. Disclosures must be approved by individuals having Delegation Order 11-2 authority. The provisions are:

    1. IRC 6103(i)(3)(C)(i) allows IRS on its own volition to disclose in writing return information (other than taxpayer return information) that may be related to a terrorist incident, threat, or activity to the extent necessary to apprise the head of the appropriate investigating/responding Federal law enforcement agency. This authority is exercised by officials with Delegation Order 11-2 authority. Taxpayer identity information for this purpose is not considered taxpayer return information. The head of the agency may redisclose such information to officers and employees of such agency to the extent necessary to investigate or respond to the terrorist incident, threat, or activity.

    2. IRC 6103(i)(3)(C)(ii) permits the disclosure of returns and return information to the Attorney General to the extent necessary for purposes of preparing an application under IRC 6103(i)(7)(D).

    3. IRC 6103(i)(7)(A) allows IRS to disclose return information (other than taxpayer return information) to officers and employees of any Federal law enforcement agency who are personally and directly engaged in responding to or investigating any terrorist incident, threat, or activity. A written request signed by the head of the Federal law enforcement agency or his/her delegate is required. Such written request must set forth the specific reason(s) why such disclosure may be relevant to a terrorist incident, threat, or activity. Taxpayer identity information for this purpose is not considered taxpayer return information. Limited redisclosure is allowed to State or local law enforcement employees personally and directly engaged as a part of a team with the Federal law enforcement agency in such response/investigation.

    4. IRC 6103(i)(7)(B) allows IRS to disclose return information (other than taxpayer return information) upon the written request of an officer or employee of DOJ or Treasury who is appointed by the President with the advice and consent of the Senate or who is the Director of the U.S. Secret Service, if such individual is responsible for the collection and analysis of intelligence and counterintelligence concerning any terrorist incident, threat, or activity. Taxpayer identity information for this purpose is not considered taxpayer return information. Such written request must set forth the specific reason(s) why such disclosure may be relevant to a terrorist incident, threat, or activity. Disclosures under IRC 6103(i)(7)(B) may be made to those officers and employees of DOJ, Treasury, and other Federal intelligence agencies who are personally and directly engaged in the collection or analysis of intelligence and counterintelligence information or investigation concerning any terrorist incident, threat, or activity. Such disclosures may be made solely for the use of such officers and employees in such investigation, collection, or analysis.

    5. IRC 6103(i)(7)(C) sets up an ex parte court order process similar to IRC 6103(i)(1). It provides that, upon grant of an ex parte order by a Federal district court judge or magistrate, returns and return information with respect to a specified period(s), shall be disclosed to officers and employees of any Federal law enforcement or Federal intelligence agency who are personally and directly engaged in any investigation, response to, or analysis of intelligence and counterintelligence information concerning any terrorist incident, threat, or activity. Such disclosures may be made solely for the use of such officers and employees in the investigation, response, or analysis, and, subject to IRC 6103(i)(4), in any judicial or administrative proceeding pertaining to the terrorist incident, threat, or activity.

      Note:

      The application for the order must be approved by the Attorney General, Deputy Attorney General, Associate Attorney General, any Assistant Attorney General, or any U.S. Attorney. In granting the order, the judge/magistrate must determine that there is a reasonable cause to believe, based on information believed to be reliable, that the return or return information may be relevant to a matter relating to such terrorist incident, threat, or activity. In addition, the judge/magistrate must determine that the return or return information is sought exclusively for use in a Federal investigation, analysis, or proceeding concerning any terrorist incident, threat, or activity.

    6. IRC 6103(i)(7)(D) allows the Commissioner of Internal Revenue to authorize an application for an ex parte order described in IRC 6103(i)(7)(C). In granting the order, the U.S. District Court judge/magistrate must determine that, on the basis of the facts submitted by the applicant, there is a reasonable cause to believe the return or return information may be relevant to a matter relating to such terrorist incident, threat, or activity. The facts submitted by the applicant must be based upon information believed to be reliable. Information may be disclosed pursuant to IRC 6103(i)(7)(D) only to the extent necessary to apprise the head of the appropriate Federal law enforcement agency responsible for investigating or responding to a terrorist incident, threat, or activity. Information so disclosed shall be solely for use in a Federal investigation, analysis, or proceeding concerning a terrorist incident, threat, or activity. The head of the agency may redisclose such information to officers and employees of such agency to the extent necessary to investigate or respond to such terrorist incident, threat, or activity. The IRS disclosures to DOJ necessary to make an application for the ex parte order described in IRC 6103(i)(7)(D) are authorized under IRC 6103(i)(3)(C)(ii). The IRC 6103(i)(7)(D) process is coordinated by HQ Disclosure.

    7. Disclosure of other than taxpayer return information obtained under IRC 6103(i)(3)(C) or IRC 6103(i)(7) can be made in judicial or administrative proceedings consistent with IRC 6103(i)(4)(B). Returns and taxpayer return information obtained under IRC 6103(i)(7)(C) can be used in judicial or administrative proceedings consistent with the requirements of IRC 6103(i)(4)(A). The requirements of IRC 6103(i)(4) are discussed in IRM 11.3.28.10.

    8. Disclosures under the authority of IRC 6103(i)(3)(C) and IRC 6103(i)(7) are subject to a determination by the IRS that they will not identify a confidential informant or seriously impair a civil or criminal tax investigation.

    9. The term terrorist incident, threat, or activity means an incident, threat, or activity involving an act of domestic terrorism (as defined in 18 USC 2331(5)) or international terrorism (as defined in 18 USC 2331(1)).

    10. Generally, processing of IRC 6103(i)(7)(A), IRC 6103(i)(7)(B), and IRC 6103(i)(7)(C) requests are handled by HQ Disclosure and will parallel processing of IRC 6103(i)(1), IRC 6103(i)(2), and IRC 6103(i)(5) requests.

      Note:

      The provisions enacted by the Victims of Terrorism Tax Relief Act, and extended by the Working Families Tax Relief Act, expire 12/31/2005.

11.3.28.2  (08-01-2005)
Definitions

  1. A return is any tax return or information return, declaration of estimated tax, or claim for refund required by, or provided for or permitted under, the provisions of the Internal Revenue Code which is filed with the IRS by, on behalf of, or with respect to any person, and any amendment or supplement to such return, including supporting schedules, attachments, or lists which are supplemental to, or part of, such a return.

  2. Taxpayer identity information is:

    1. the name of a person with respect to whom a return is filed;

    2. his/her mailing address;

    3. his/her taxpayer identification number;

    4. or a combination thereof (i.e., of a, b, and c).

  3. Return information is:

    1. a taxpayer's identity;

    2. the nature, source, or amount of his/her income, payments, receipts, deductions, exemptions, credits, assets, liabilities, net worth, tax liability, tax withheld, deficiencies, over assessments, or tax payments;

    3. whether the taxpayer's return was, is being or will be examined or subject to other investigation or processing; or

    4. any other data, received by, recorded by, prepared by, furnished to, or collected by the IRS with respect to a return or with respect to the determination of the existence, or possible existence, of liability (or the amount of liability) of any person under the Internal Revenue Code for any tax, penalty, interest, fine, forfeiture, or other imposition, or offense;

    5. any part of any written determination or background file document relating to a written determination which is not open to public inspection under IRC 6110;

    6. any advance pricing agreement entered into by a taxpayer and the IRS and any background information related to such agreement or any application for an advance pricing agreement; and

    7. IRC 7121 agreements and background documents as defined in IRC 6103(b)(2).

  4. Return information does not include data in a form which does not identify, directly or indirectly, a particular taxpayer, such as an amalgamation of returns or return information of a number of taxpayers. Merely removing taxpayer identity information from a document which is return information does not change its status as return information. See Church of Scientology of California v. IRS, 484 U.S. 9 (1987)

    Example:

    A third party witness statement, identifying the taxpayer who is the target of the investigation, is return information. Deleting the taxpayer identifiers does not change its status as return information.

  5. Taxpayer return information is return information filed with or furnished to the IRS by or on behalf of the taxpayer to whom such information relates.

    1. All books, records and the contents of oral statements received by the IRS from, or on behalf of, the taxpayer to whom such data relates are taxpayer return information. This includes information obtained as a result of a summons served on the taxpayer or his/her representative. In addition, any data, in written form or otherwise, obtained by any officer or employee of the IRS from such books, records, and oral statements are also taxpayer return information. Any data which has been secured from third parties or other sources as a result of leads that were identified from such taxpayer return information generally will not be classified as taxpayer return information.

    2. A third party is deemed to be acting on behalf of a taxpayer, and the data presented by such third party is considered taxpayer return information, if the third party, at the time of the IRS's request for the information was acting as an authorized representative or agent for the taxpayer. An example is a bookkeeper, return preparer, employee or relative of the taxpayer acting for the taxpayer in connection with the preparation of a return or as custodian of the taxpayer's records. The information presented by the third party must be the taxpayer's own data, which the taxpayer provided to such third party as a representative or agent for the taxpayer, or which such third party derived from information so furnished. See IRM 11.3.28.2.1 for examples of taxpayer return information.

  6. Return information (other than taxpayer return information) is return information which is not provided to the IRS by or on behalf of the taxpayer. This term is sometimes shortened to "other than taxpayer return information." For examples, see IRM 11.3.28.2.2.

    Note:

    Generally, information obtained from the taxpayer is considered taxpayer return information. See examples (9) and (10) under IRM 11.3.28.2.2 for exceptions. If the source of the information cannot be determined, the information must be considered to be taxpayer return information.

  7. A Federal agency is a generally independent authority of the Federal government, whether or not within another agency, which has legal authority to take binding action. The title of the body (such as "office," "bureau," "board," "agency," or "department " ) is not relevant in determining its status.

  8. A head of a Federal agency is the executive with the final review and control over the agency.

  9. A liaison office is the Disclosure office assigned the responsibility for coordinating requests with the local United States Attorney or other component of the Department of Justice, or other Federal agency, for disclosure under IRC 6103(i)(1), IRC 6103(i)(2), IRC 6103(i)(5), or IRC 6103(i)(7) regardless of where the requested information is located.

  10. A non-liaison office is any Disclosure office that is responsible for assisting a liaison office in obtaining clearances, screening and segregating files, and obtaining information which is needed to satisfy an IRC 6103(i)(1), IRC 6103(i)(2), IRC 6103(i)(5), or IRC 6103(i)(7) request.

11.3.28.2.1  (08-01-2005)
Examples of Taxpayer Return Information

  1. A special agent obtains information from a former wife concerning actions taken by her former husband that affect their previously filed joint income tax return. The information she provides is to be used against her former husband in criminal proceedings resulting from the special agent's investigation. Although the former wife will not be charged as a principal in the criminal case, she would be jointly and severally liable for any resulting civil tax deficiency on the return at issue. In this example, the information obtained from the former wife is taxpayer return information because it relates to their joint return.

  2. A special agent is investigating allegations of evasion of corporate income taxes by the president of Corporation X. The special agent interviews Y (the treasurer, who signed the corporate income tax return) and obtains information which supports the allegations. This is taxpayer return information because Y was representing the corporation when interviewed by the special agent.

  3. A special agent questions the tax practitioner who prepared the return for the taxpayer who is being investigated. The information the practitioner gives the special agent was obtained from the taxpayer (the taxpayer's records and statements) so the return could be prepared. The information is taxpayer return information because the taxpayer was the source and the practitioner was representing the taxpayer.

  4. Revenue agent reports, special agent reports, workpapers, and other administrative documents such as Individual Master File (IMF) transcripts may contain a combination of other than taxpayer return information and taxpayer return information. A determination of the source of each piece of information in IRS files is necessary in the event a disclosure under IRC 6103(i)(2), IRC 6103(i)(3)(A), IRC 6103(i)(3)(C), IRC 6103(i)(7)(A), or IRC 6103(i)(7)(B) is to be made. If the source cannot be determined, the information must be treated as taxpayer return information and cannot be released under these sections except to the extent it constitutes identity information.

  5. An Information Returns Master File (IRMF) transcript, usually obtained via the IRPTR command code, is taxpayer return information. The information comes from returns filed by the payor/information return filer and is the payor's and payee's taxpayer return information.

  6. When a summons is served on the taxpayer and data is received from the taxpayer, or someone acting on his/her behalf, the information is taxpayer return information. This is also true for information received from the taxpayer as a result of a summons enforcement hearing.

11.3.28.2.2  (08-01-2005)
Examples of Other than Taxpayer Return Information

  1. The fact that IRS records indicate a specific taxpayer filed or failed to file a return is other than taxpayer return information.

  2. Local police seize the books and records of a taxpayer during a raid. The police subsequently turn over the books and records to the IRS. The source of this information is the police, who were not acting on behalf of the taxpayer. In this example, the books and records are other than taxpayer return information.

  3. A special agent interviews H. who provides information to the IRS concerning G, the subject of the investigation. Thereafter, the special agent confirms the information in a discussion with G. The information originally obtained from H does not become taxpayer return information as a result of being confirmed by the taxpayer. The source of the information is the determining factor. In this example, the original information is other than taxpayer return information, and the confirming information is taxpayer return information.

  4. If the special agent who was investigating G initially obtained information from G and subsequently received confirming information in the course of a discussion with H, the confirming information received from witness H would be other than taxpayer return information. This is so even if the information is the same as the information previously obtained from G, which is taxpayer return information.

  5. A transcript is made of a conversation between an informant who consented to being monitored and the taxpayer who is the subject of the investigation. The transcript of both the informant's and the taxpayer's remarks is other than taxpayer return information. The source of the information in this instance is the informant.

  6. A Revenue Agent examines a bank's records of the taxpayer's bank account. The bank is considered the owner of the records and is not acting on behalf of the taxpayer in producing them for inspection. Therefore, information obtained from the bank's records is other than taxpayer return information.

  7. A special agent interviews J, who provides information to the IRS concerning I, the subject of the investigation. J provides information about I which also implicates J in possible tax and nontax violations. Based upon this information, the IRS subsequently opens an investigation of J. The information J initially provided is other than taxpayer return information since J was not the target of the investigation with respect to which the information was furnished. The fact that the same information is used in a later investigation of J does not change the character of the information at the time it was received.

  8. A special agent interviews L, who provides information to the IRS concerning K, the subject of the investigation. At the time, an unrelated investigation of L is also in open status. The information provided by L about K's tax matters also implicated L in possible tax violations. Since the information was not obtained with respect to the unrelated investigation of L, it is other than taxpayer return information, not taxpayer return information. (If the existing investigation of L is a related case, however, the information is regarded as having been gathered with respect to both investigations and characterized as taxpayer return information of L.)

  9. Substitute for Return (SFR) information not taken from information returns is considered to be "other than taxpayer return information."

  10. Information seized at the taxpayer's residence pursuant to a search warrant is "other than taxpayer return information" because it was not voluntarily provided by the taxpayer. Information observed or seized that does not actually relate to tax liability as potential tax liability is not considered tax information even if the search itself was tax motivated.

  11. In accordance with the Agreement on Coordination of Tax Administration (Basic Agreement), IRS has agreed to treat information provided by a state tax agency as taxpayer return information.

  12. When a summons is served on a third party (e.g., bank) and data is received from the third party, the information is "other than taxpayer return information." This is also true for information received from the third party as a result of a summons enforcement hearing.

11.3.28.3  (08-01-2005)
Disclosure of Returns and Return Information Pursuant to IRC 6103(i)(1), IRC 6103(i)(2) and IRC 6103(i)(5)

  1. Disclosure Officers have been delegated the authority to approve IRC 6103(i)(1), IRC 6103(i)(2) and IRC 6103(i)(5) disclosures. After initial approval, the Disclosure staff may transmit the information.

  2. The liaison Disclosure Office will contact the requesting official and acknowledge receipt of an ex parte court order, or written IRC 6103(i)(2), IRC 6103(i)(7)(A), or IRC 6103(i)(7)(B) request. Initial acknowledgment of receipt and clarification of what is needed in response to the court order or written request should occur within seven working days. Such contact must be recorded in the case history on E-DIMS.

  3. After receipt of a court order or written request, and until requests have been satisfied, the liaison office is responsible for maintaining contact, personally or telephonically, with the requesting official regarding the status of the request and the estimated date all actions will be completed. Such contact must be recorded in the case history on E-DIMS.

    Note:

    Contacts with the requesting official will not include any discussion of fact of filing or other return information until such disclosures are approved by the Disclosure Officer.

  4. Internal IRM procedures do not require the IRS to review applications as part of responding to the orders themselves. When applications are provided, or references in the order to the application indicate the proper official did not approve the application, Disclosure personnel have a responsibility to ensure that the applications meet statutory requirements. Applications should not be solicited simply to check for adherence with the statute.

  5. During the initial contact with the requesting agency, the liaison office will ascertain the date the requester requires the information if a date is not provided in the ex parte court order or written request. This date will be used to determine if alternative methods will be used to locate the requested documents, such as using special messengers to obtain documents from the Federal Records Center.

  6. During the initial contact, the liaison office should also determine if the requester desires certified copies of returns and documents.

    Note:

    More often than not, with IRC 6103(i)(1) orders, the requester needs only the tax return. It may not be necessary to spend resources by providing other documents such as audit workpapers, etc. If computer transcripts are acceptable/desired that option should be explored as well.

  7. Where agreements with requesting officials are in effect regarding contacts, timeframe expectations, etc., the agreements must be documented and maintained in a permanent administrative file.

  8. The liaison Disclosure Officer is responsible for ensuring that all request case files contain complete written audit trails including, but not limited to, information on communications with requesters and the extent/result of search efforts.

  9. All releases of documents pursuant to IRC 6103(i)(1), IRC 6103(i)(2) or IRC 6103(i)(5) will be reviewed by the liaison Disclosure Office to ensure only covered documents and information are released.

  10. Liaison Disclosure Offices are responsible for coordination with other field offices and campuses to ensure that IRC 6103(i)(1), IRC 6103(i)(2) and IRC 6103(i)(5) disclosures are processed without delay.

  11. Ex parte court orders and written requests for disclosure which contain imperfections will be processed as if the request met the conditions of the statute. In these cases, the liaison office will immediately contact the requester and obtain an amended order or request while taking the necessary steps to obtain clearances and screen the requested files or returns. Requests that cannot be honored because they do not fall within the scope of the IRC 6103(i) process will also be discussed with the requester and the reason(s) for non-processing will be clearly communicated. The E-DIMS case history must also contain notes concerning problems with requests and actions taken to correct the problems.

    Note:

    While information disclosed under IRC 6103(i) can be used in the sentencing phase (see IRM 11.3.28.10) no disclosure can be made relative to requests that are to be used for sentencing purposes only. A predicate for use in sentencing is that the information was obtained during the investigation stage (which can still be ongoing while court action is in progress). If a "sentencing only" request is received, guidance can be obtained by contacting the Director, Disclosure, GLD.

  12. Processing of requests will not be delayed pending the receipt of a perfected order or written request. No disclosure will be made, however, until the required written request or ex parte order meeting all statutory requirements has been received.

  13. IRM Exhibit 11.3.28-1 and IRM Exhibit 11.3.28-2 contain guides for processing IRC 6103(i)(1), IRC 6103(i)(2) and IRC 6103(i)(5) requests.

  14. An amended order or written request will not be required if the taxpayer's identification number (TIN) is not provided since IRC 6103(i)(1) and IRC 6103(i)(2) do not require the TIN. The Disclosure Office should attempt to secure the TIN from the U.S. Attorney or other requesting official, and should disclose the returns and/or return information only if he/she is certain that they pertain to the taxpayer named in the order or request. In some cases, the order may indicate that the name of the taxpayer is unknown and substitute a dummy name such as "John Doe." As long as sufficient other information (TIN, date of birth, address, etc.) is provided, the order can be honored. In such a case, it is still necessary for Disclosure personnel to be sure that the tax information being released is encompassed by the order.

  15. Ex parte court orders pursuant to IRC 6103(i)(1) should be as detailed as possible. If an ex parte order requests information concerning classes or groups of individuals (e.g., all investors in X Corporation located in the State of X without identifying each individual by name), a copy of the ex parte order should be transmitted immediately via facsimile transmission to Headquarters for the attention of the Director, Office of Governmental Liaison and Disclosure. The request will be coordinated with the appropriate Headquarters officials to determine if the circumstances outlined in the order warrant release of the information without requiring specific identification of each individual or other entity covered by the order. No further processing steps should be taken by the field Disclosure Officer until instructions are issued by the Office of Governmental Liaison and Disclosure.

  16. If an IRC 6103(i)(1) order (after coordination with the requesting agency under (5) above) is determined to encompass tax documents (e.g., wage histories, letters to employers regarding incorrect SSNs submitted on Forms W-2) in the possession of the Social Security Administration (SSA), the IRS liaison Disclosure Office should contact SSA to secure the necessary documents. SSA has no statutory authority to provide tax documents pursuant to an IRC 6103(i) request; only IRS can release tax documents in such cases. SSA will direct requesters who contact them to the appropriate IRS Disclosure Office. If complications arise, GLD’s Director, Disclosure, should be consulted for guidance.

  17. Recipients who have inspected or gained access to returns and return information pursuant to IRC 6103(i)(1), IRC 6103(i)(2) and IRC 6103(i)(5) are subject to the penalty provisions of IRC 7213, IRC 7213A, IRC 7431, and 18 USC 1905.

11.3.28.3.1  (08-01-2005)
Disclosures to Special Prosecutors Appointed Under 28 USC 593

  1. IRC 6103(i)(1) and IRC 6103(i)(2) requests for disclosure to special prosecutors appointed by the court under 28 USC 593 will be directed to the IRS liaison office where the majority of the tax data requested is expected to reside.

  2. The liaison office will coordinate with the appropriate field offices and campuses to compile the information and documents requested and to secure appropriate clearance for their release.

  3. The requests are high priority and will be processed expeditiously.

    Note:

    28 USC 593 expired June 30, 1999 (Ref. 28 USC 599).

11.3.28.3.2  (08-01-2005)
Disclosures Based on a Mutual Legal Assistance Treaty (MLAT) Request in Criminal Matters

  1. A summary of the procedures for processing the requests for assistance (e.g., providing tax returns and return information) under the various treaties on Mutual Legal Assistance in Criminal Matters (MLATS) are as follows:

    1. The Department of Justice Office of International Affairs, Criminal Division (DOJ OIA) is authorized to act as the "Central Authority" under all MLATS. The DOJ OIA forwards all requests under MLATS for assistance pertaining to tax information to Director, International Section, Criminal Investigation (CI).

    2. CI staff will review the request and determine if return/return information is requested or if the request is solely for financial investigative assistance. Only requests for returns/return information will be sent to the Director, International (DI). Financial investigative assistance will be processed by CI.

    3. CI forwards the request package to DI. DI forwards a copy of the request package to Associate Chief Counsel (International) (ACCI) for a legal opinion on whether compliance with the request for tax information is authorized by the respective MLAT and the Internal Revenue Code.

      Example:

      ACCI determines whether the MLAT is a convention relating to the exchange of tax information within the meaning of IRC 6103(k)(4).

  2. DI also forwards a copy of the request package to the Baltimore Disclosure Officer. In a brief email message or memo, ACCI conveys to DI, CI, and the Baltimore Disclosure Officer, the conclusions of its evaluation of the MLAT, but not the legal analysis. The conclusion is limited to the following:

    1. whether compliance with the request for tax information is authorized by the respective MLAT and the Internal Revenue Code; and

    2. the conditions which must be met before the information may be disclosed (such as an ex parte order from the District Court under IRC 6103(i)(1), or a letter under IRC 6103(i)(2) from the appropriate Department of Justice official. A copy of ACC’s file memo, which contains the legal analysis, may be attached to the communications to DI and CI, but not to the Baltimore Disclosure Officer.

  3. Where necessary, based on the message from ACCI, the Baltimore Disclosure Officer requests OIA to provide additional information, documents such as an ex parte court order from the District Court under IRC 6103(i)(1), or a letter under IRC 6103(i)(2) from the appropriate Department of Justice Official. Upon receipt of an ex parte court order or a letter under 6103(i)(2), a copy will be sent via fax to DI. On fulfillment of the conditions stated in the ACCI's memo, the Baltimore Disclosure Officer forwards the relevant documents to DI.

  4. DI complies with the MLAT request by forwarding to DOJ OIA, under the signature of the IRS Competent Authority and in a sealed envelope, the documents received from the Baltimore Disclosure Officer. Instructions to transmit the envelope to the Central Authority of the requesting State under the MLAT will also be included in the cover letter. DI may include in the cover letter to DOJ OIA appropriate instructions regarding confidentiality of the documents and limitations on their use, if any. A copy of the cover letter will be forwarded by DI to CI.

  5. While these disclosures are made to DOJ (to be passed on to the treaty partner), they are considered to be IRC 6103(k)(4) disclosures and must be accounted for under that section.

11.3.28.3.3  (08-01-2005)
Disclosures to Main Department of Justice (DOJ)

  1. Requests from Main DOJ frequently are sent to the Baltimore Disclosure Office primarily due to their geographical proximity. This is not to imply that this office has sole responsibility for working these requests.

  2. Such requests should generally be handled by the Disclosure Office having jurisdiction over the area where the taxpayer's address is located or where the majority of the responsive records reside, in the case of multiple entities.

  3. Occasionally, coordination may be necessary between and among Disclosure Offices. The office having the majority of the responsive records should accept responsibility for preparing the coordinated response to Main DOJ.

11.3.28.3.3.1  (03-31-2003)
Military Judge Requests and Ex Parte Court Orders

  1. IRC 6103 (i)(1), IRC 6103(i)(5), and IRC 6103(i)(7)(C) and IRC 6103(i)(7)(D) specify that an ex parte court order must be granted by a Federal district court judge or magistrate. The Uniform Code of Military Justice (UCMJ) is a Federal statute and investigations/actions involving criminal violations of the UCMJ meet the requirements of the 6103(i). If a military branch needs information under IRC 6103(i)(1), IRC 6103(i)(5) or IRC 6103(i)(7)(C), it should apply for the order through one of the Department of Justice employees listed in IRC 6103(i)(1)(B) or IRC 6103(i)(7)(C)(ii), as appropriate. The application must be authorized by one of the listed individuals and the order granted by a Federal district court judge or magistrate. A military court judge cannot grant an IRC 6103(i)(1), IRC 6103(i)(5), or IRC 6103(i)(7)(C) or IRC 6103(i)(7)(D).

11.3.28.3.3.2  (08-01-2005)
FISA Courts and Ex Parte Court Orders

  1. The Foreign Intelligence Surveillance Act (FISA) established courts which can authorize the gathering of data for intelligence purposes. These courts are known as FISA courts.

  2. FISA courts issue letters, called National Security Letters (NSL) to gather data. NSLs do not meet the requirements of IRC 6103(i) and cannot be used to obtain returns or return information.

  3. In establishing the FISA courts Congress did not give these courts the authority to issue ex parte court orders. Therefore, even though a FISA court judge is a Federal district court judge, an ex parte court order pursuant to IRC 6103(i)(1) or IRC 6103(i)(7)(A) cannot be issued by a FISA court.

11.3.28.3.4  (03-31-2003)
Special Requests for Returns, Taxpayer Return Information, and Return Information (Other than Taxpayer Return Information)

  1. When circumstances require an expeditious approval for disclosure of returns, taxpayer return information or return information (other than taxpayer return information), all affected IRS functions will cooperate fully with the Disclosure Office.

  2. Managers will consider, among other measures to expedite processing of such requests, special trips to Federal Records Centers, campuses, or posts of duty to retrieve returns or related files.

  3. When the files need to be screened, the Disclosure Office will be assisted by division/functional disclosure coordinators or other designated personnel.

11.3.28.4  (08-01-2005)
Procedures for Access to Returns and Return Information

  1. Access to returns and return information under an IRC 6103(i)(1), IRC 6103(i)(5), or IRC 6103(i)(7)(C) court order is accomplished in five stages.

    1. Approval of an application to a Federal district court judge or magistrate for an ex parte court order by the Attorney General, the Deputy Attorney General, any Assistant Attorney General, any U.S. Attorney, any special prosecutor appointed under 28 USC 593, or any attorney in charge of an organized crime strike force.

      Note:

      Only the officials named above or someone officially "acting in their absence" may approve the application. If the application is invalid, because it was not approved by the correct official, the procedures of IRM 11.3.28.3(11) should be followed. An ex parte court order predicated on an invalid application is also considered invalid. The requirement of this Code section is that one of the named officials personally authorize (approve) the application for order. It is not necessary that the official actually sign the application. See IRM 11.3.28.3(4).

      1. Applications should not be solicited simply to check for adherence with the statute.

      2. In the case of U.S. Attorneys, documentation should be secured to indicate that any application not signed by the U.S. Attorney was, in fact, personally reviewed and approved by the U.S. Attorney (or someone officially acting for the U. S. Attorney in his/her absence).

      3. This should be implemented by U.S. Attorneys retaining written documentation (for safeguard purposes) in their files indicating that the U.S. Attorney has "personally reviewed and authorized" the application, having the U.S. Attorney send a letter to the Disclosure Officer documenting his/her practice of reviewing and approving each application before it is submitted, or having the order itself indicate U.S. Attorney approval.

      4. Such documentation must be maintained in a general administrative file.

    2. Issuance of the ex parte court order.

    3. Clearance by the IRS (i.e., determination that disclosure of the information would not identify a confidential informant or seriously impair a civil or criminal tax investigation).

    4. Disclosure authorized by official designated in Delegation Order 11-2.

    5. Disclosure of the requested documents and information in conformity with the ex parte court order. See IRM Exhibit 11.3.28-1.

11.3.28.4.1  (08-01-2005)
Notifying the IRS of Intent to Apply for an Ex Parte Court Order

  1. The appropriate official shall notify the designated IRS liaison Disclosure Office in advance when a determination is made to apply for an ex parte court order. This will allow the IRS to expedite efforts to obtain and review returns and return information prior to receipt of the court order. Liaison Disclosure Offices will start processing procedures upon receipt of advance notice that application for an ex parte court order is being made. If advance notice is received, action must immediately be taken to research for and order responsive documents. The possibility that an application may be rejected by the U. S. District Court is not a reason for non-action. It is imperative that action be taken upon receipt of the advance notice instead of waiting for the actual court order. This also applies to non-liaison/assisting offices that receive requests from liaison offices to obtain documents. It is not necessary for the non-liaison/assisting office to have a copy of the court order before taking action.

  2. Whenever advance notice is not received, the authorization letter should contain a statement reminding the requester that future requests will be more efficiently and effectively processed by the IRS if advance notice is given before the application for the ex parte court order is submitted to the Federal district court judge or magistrate.

  3. The application for an ex parte court order must be authorized by the United States Attorney (or other authorized individual) or an individual acting in such capacity. See IRM 11.3.28.4(1)a) and subsequent note for additional information.

11.3.28.4.2  (08-01-2005)
Information Required in an Application for an Ex Parte Court Order

  1. To obtain an ex parte court order under IRC 6103(i)(1), the requester must show the district court judge or magistrate that:

    1. there is reasonable cause to believe, based on information believed to be reliable, that a specific Federal nontax criminal act has been committed;

    2. there is reason to believe that the return or return information is or may be relevant to a matter relating to the commission of such nontax criminal act; and

    3. the return or return information is sought exclusively for use in a Federal nontax criminal investigation or proceeding concerning such act, and cannot reasonably be obtained, under the circumstances, from any other source.

  2. An ex parte order cannot be obtained solely for purposes of a civil forfeiture matter. If information is appropriately requested pursuant to IRC 6103(i)(1), it may subsequently be used in a civil forfeiture matter (see IRC 6103(i)(4)(B)).

  3. To obtain an ex parte court order under IRC 6103(i)(5), the requester must show the judge or magistrate that:

    1. a Federal arrest warrant relating to a Federal felony offense has been issued for an individual who is a fugitive from justice;

    2. the return of the individual or return information relating to the individual is sought exclusively for use in locating the individual; and

    3. there is reasonable cause to believe that the return or return information is or may be relevant in determining the location of the individual.

  4. Disclosure may not be extended beyond the scope of the ex parte court order so it is essential that the applicant carefully word the proposed order.

  5. Normally, the application will conform precisely to the statute. It is within the discretion of the judge or magistrate, however, to accept oral testimony from the applicant in support of information contained in the application.

  6. A valid court order pursuant to IRC 6103(i)(1), IRC 6103(i)(5), or IRC 6103(i)(7)(C) need not repeat the information provided in the application and/or oral testimony of the prosecuting attorney.

  7. In considering the application for the ex parte order, the judge or magistrate may wish to view the IRS's records in camera. If in camera inspection is requested, the liaison Disclosure Office will obtain copies of the requested documents and have them hand delivered to the judge or magistrate for his/her inspection. In such cases, the disclosure is not considered to be made unless the judge/magistrate approves the disclosure.

11.3.28.4.3  (08-01-2005)
Information Required in an Ex Parte Court Order

  1. An ex parte court order issued pursuant to IRC 6103(i)(1) or IRC 6103(i)(5) must:

    1. be signed by a Federal district court judge or magistrate;

    2. include sufficient identifying information (for example, name, TIN, address and/or date of birth) of the taxpayer to whom the return or return information relates (see IRM 11.3.28.3(14) and IRM 11.3.28.3(15)) so that the proper records can be secured;

    3. specify the tax years involved.

  2. An ex parte order which does not conform to these requirements will be processed as set forth in IRM 11.3.28.3(11).

11.3.28.5  (08-01-2005)
Disclosures in Conformity with an Ex Parte Court Order

  1. The liaison Disclosure Office will conduct a search of the Master File (MF) to identify the taxpayer’s account(s) for the tax period(s) requested and order the necessary returns.

    Note:

    For those requests containing numerous taxpayers, caseworkers may want to use a spreadsheet to document and track research, request and receipt of returns, and the provision of documents or other information to the requester.

    Note:

    SSA's Numident file should not be accessed to compile information for the order. However, if Numident information is already in a tax case file for a covered taxpayer, it is considered IRC 6103 information.

    Note:

    The Currency and Banking Retrieval System should not be accessed to compile information as the system mainly contains Title 31 information (including most Forms 8300, Report of Cash Payments Over $10,000 Received in a Trade or Business, filed after 12/31/01). The IRMF should be used for Form 8300 information since all Forms 8300 in the IRMF are Title 26 returns.