11.3.5  Fees

11.3.5.1  (12-28-2007)
Background

  1. This section contains instructions for collecting authorized fees for providing copies of documents and for related services, such as search, review and certification.

  2. These instructions are applicable to services or copies provided by Disclosure personnel or by other personnel acting pursuant to provisions of chapter 11.3, Disclosure of Official Information.

11.3.5.2  (05-24-2005)
Authority

  1. 31 USC 9701 states that each service or item of value provided by an agency to a person is to be self-sustaining to the extent possible. Each charge is to be fair and based upon the costs to the Government, the value of the service or item to the recipient, the public policy or interest served and other relevant facts.

  2. Statutory provisions which specifically relate to charges for the disclosure of records by the Internal Revenue Service include:

    1. 5 USC 552(a)(4)(A)

    2. 5 USC 552a(f)(5)

    3. IRC 6110(k)(1)

    4. IRC 6103(p)(2)

  3. The Freedom of Information Act provides that some categories of requesters are to receive a basic level of services without fees or at reduced fees.

  4. The Department of the Treasury issued regulations establishing fees for specific services in connection with the disclosure of records at 31 CFR Part 1, Section 1.7. The IRS has issued regulations at 26 CFR 601.702 to implement and enhance the Treasury regulations. The IRS FOIA regulations are available at:
    http://a257.g.akamaitech.net/7/257/2422/14mar20010800/edocket.access.gpo.gov/2002/02-29077.htm

11.3.5.3  (05-24-2005)
Categories of Users

  1. Generally, requesters other than a requester in the "All Other Requester" category must attest, under penalty of perjury, as to the category of user they believe themselves to be. Where it is apparent that no fees will be charged, or where Disclosure Personnel can readily determine the category of user, the request should not be treated as imperfect merely because the requester does not make this statement.

11.3.5.3.1  (05-24-2005)
Commercial Use

  1. A commercial use request is a request that furthers the commercial, trade or profit interests of the requester or person on whose behalf the request is made.

  2. Factors which may identify commercial use are:

    • The intended use of the information

    • The identity of the requester in the absence of any acceptable explanation to the contrary

    • The nature of the records requested or

    • Any previous experience with the requester or type of request

  3. Commercial use may include the resale of the information or any other purpose that is related to commerce, trade or profit. Care must be taken in differentiating commercial users intending to offer general information for resale (including those who represent trade journals of limited circulation) from news media serving the general public who would not be considered commercial users. Certain requesters who seek access to information for the purpose of resale, but by so doing, facilitate the Internal Revenue Service's dissemination of information to a significant public (e.g., taxpayers, tax practitioners, legislators), may be considered either media requesters or " all other requesters." Advice may be sought from Media Relations if an apparent commercial user claims to represent the news media.

  4. Some types of records can, by their nature, be considered as primarily of interest to commercial users unless unusual circumstances are indicated by the requester. You may infer that requests from a competitor, or a competitor's representative, for records relating to software or other technical data or the acquisition of equipment, facilities, supplies, or services is, by its nature, from a commercial use requester.

  5. Although identity as a commercial user may be indicated by the use of a business letterhead, the use of a business title by the requester, the presence of an address known to be business premises or other evidence contained within the request, the presumption of commercial use should not be automatically made on these criteria alone. Requests made by attorneys, accountants or other representatives may be commercial use requests whenever such requesters are known to represent principals who would be considered commercial users. Requesters are not treated as commercial use requesters simply because they generate a large volume of FOIA/Privacy Act cases on behalf of their clients.

  6. Any requester who is described as an " other requester" but whom you deem to be a commercial use requester should be given an opportunity to submit evidence refuting that determination. Since you will have to contact the requester to ascertain whether the requester will agree to pay review fees, that opportunity should be taken to permit the requester to submit additional information which may alter your determination as to the category of the requester.

  7. A request made by a commercial enterprise for its own returns or return information relating to corporate income, excise or employment taxes does not constitute a "commercial use" request. These requests fall into the "all other requesters" category.

11.3.5.3.2  (05-24-2005)
Educational or Noncommercial Scientific Institutions

  1. These categories refer to institutions whose purpose is to carry on scholarly or scientific research.

  2. Educational institution refers to:

    • Preschool

    • Public or private elementary school

    • Public or private secondary school

    • Institution of graduate higher education

    • Institution of undergraduate higher education or

    • Institution of vocational education, which operates a program or programs of scholarly research

  3. It is rare that a preschool or elementary, secondary or vocational school would be able to qualify for treatment as an " educational" institution since few of these schools could be said to conduct programs of scholarly research. However, they may qualify as local government and be eligible for a fee waiver as a governmental component. See 26 CFR 601.702(f)(2)(F)(iv) and See IRM 11.3.5.6.5 (2) below.

  4. Evaluate requests on an individual basis when requesters demonstrate that the request is from an institution that has a program of scholarly research, and that documents sought are in furtherance of that research and not for a commercial use.

  5. Ensure that the nature of the request serves a scholarly research goal of the institution, rather than an individual goal. This "institution " versus "individual" test also applies to student requests.

  6. Generally, a requester seeking access to records for a student research project would be an "all other requester."

  7. Noncommercial scientific institution refers to an independent nonprofit institution whose purpose is to conduct noncommercial scientific research, and whose results are not intended to promote any particular product or industry.

  8. In some cases, educational or noncommercial scientific institutions may be performing work under contract for the specific benefit of commercial entities and would warrant treatment as commercial users.

11.3.5.3.3  (05-24-2005)
News Media

  1. Representatives of the news media include persons on the staff of established news media outlets, such as, but not limited to, radio or television stations, wire services, or periodicals of general circulation.

  2. Freelance journalists may be regarded as working for the news media, even though not actually employed by the media, if they can demonstrate a solid basis for expecting publication, such as a publication contract or by demonstrating a past publication.

  3. Representatives of narrowly focused publications such as house journals, trade journals or organizational newsletters which are not designed for ordinary circulation to the general public are not considered news media for this purpose. However, if available by public subscription or news stands such representatives would be considered news media.

11.3.5.3.4  (12-31-2001)
All Other Requesters

  1. Any person who does not fit into the three categories shown above will be considered as part of the "All Other Requester " category.

11.3.5.4  (12-31-2001)
Categories of Services

  1. Services for which some categories of users may be charged include search, duplication and review.

  2. Not all categories of users are charged for all services.

11.3.5.4.1  (12-31-2001)
Commercial Users

  1. Commercial Users are charged fees for search, duplication and review.

  2. Commercial Users are not entitled to make requests for the reduction or waiver of fees and no consideration need be given to such requests.

11.3.5.4.2  (05-24-2005)
Educational, Noncommercial Scientific Institution or the News Media

  1. When the request is made by an educational or noncommercial scientific institution whose purpose is scholarly or noncommercial scientific research, or the request is made by a representative of the news media, fees will be limited to duplication. However, there will be no fee for the first one hundred pages of duplication. These users do not pay search or review fees.

  2. In addition to the fee limitations stated above, educational institutions, noncommercial scientific institutions and news media may be considered for further reductions in fees or for the waiver of all remaining fees.

  3. Prior to performing extensive computer or manual research in response to a request from an educational or noncommercial scientific institution or a representative of the news media, confirmation should be obtained that the request is actually under the auspices of the qualifying institution or the employing news media, rather than simply representing the interests of the requesting staff member.

11.3.5.4.3  (05-24-2005)
All Other Requesters

  1. "All Other Requesters" are subject to fees for search and duplication. However, these requesters are entitled to two hours of free search time and one hundred pages of duplication without charge.

  2. First party requests, where the information would otherwise be available under the Privacy Act, are charged fees under the Privacy Act instead of FOIA. See IRM 11.3.5.9.1 below, for additional information on fees relating to Privacy Act requests.

11.3.5.5  (08-01-2003)
Manner of Payment

  1. In order to provide the public with efficient services at minimal expense, to avoid costly billing, accounting and collection procedures and to ensure that fees are promptly paid by the responsible requester, any fees determined to be applicable may be collected prior to providing copies or permitting inspection of records.

11.3.5.5.1  (05-24-2005)
Requests Involving Extensive Efforts

  1. If a request for access to records is anticipated to generate fees of $250.00 or more due to the need for extensive search, review or duplication, payment of the estimated fees should be obtained prior to performing such work.

  2. The estimate of anticipated fees must be reliable and must be based upon a realistic and factual appraisal of cost.

    1. The request itself must make it apparent that an extensive search or voluminous records are involved or preliminary efforts to comply with the request must make its extent apparent.

    2. In the case of a taxpayer requesting records pertaining to himself or herself, a preliminary search utilizing appropriate technology, such as CFOL, IDRS or AIMS, must be made to ensure that records warranting an estimate of $250.00 in fees are likely to exist.

    3. The basis for estimating fees of $250.00 or more is to be documented in the case history.

  3. The estimate of $250.00 should represent the amount due after the requester has been allowed any free search time or free copies to which he or she may be entitled.

  4. Unless the requester has indicated in advance a willingness to pay fees as high as those anticipated, the requester must, in accordance with 26 CFR 601.702(f)(4)(ii), be informed of:

    1. The extent to which the estimate represents search, review or duplication fees and what the estimate is.

    2. That additional fees may become due if the actual search, review time or number of copies exceed the estimate.

    3. That a refund may be made if the actual search or number of copies are less than the estimate; however, search fees are not refundable if a search is performed but does not result in the location or release of records, and review fees are not refundable if review is performed but does not result in the release of records.

    4. That the Disclosure Manager is available to discuss reformulating the request in order to reduce fees.

  5. If the requested payment has been made and actual fees upon completion of the request exceed the payment amount, additional fees will be requested only if they are $10.00 or more.

  6. If the requested payment has been made and actual fees upon completion of the request are at least $2.00 less than the payment amount, an appropriate refund will be authorized and the requester advised of the amount of refund forthcoming. Refunds of less than $2.00 will be refunded upon request.

  7. Disclosure personnel are expected to develop sufficient expertise at estimating fees in a realistic manner so that refunds are seldom necessary. A conservative estimate resulting in additional fees or waiving an additional fee under $10.00 is preferable to creating the potential expense of processing a refund.

11.3.5.5.2  (05-24-2005)
Requests Involving Prior Nonpayment

  1. Payment of estimated fees may be requested prior to performing any services beyond the minimal effort necessary to reasonably estimate fees, whenever:

    1. The requester has a history of lateness (more than 30 days) in paying after the agency's request for payment

    2. The requester has a history of failure to pay prior fees incurred in connection with requests for records or

    3. The requester is a minor, an incompetent or other person not capable of making the required commitment to pay fees

  2. For purposes of nonpayment, a requester is the individual in whose name a request is made. Where a request is made on behalf of another individual and previous fees have not been paid within the designated time period by either the requester or the individual on whose behalf the request is made, the IRS shall require payment in full of all outstanding fees and all estimated fees before processing a new request.

    Note:

    A requester could include an entity (e.g. partnership or corporation). If a FOIA request is submitted by a partnership and is signed by an authorized member of a partnership, then the partnership, jointly, and all of the partners, severally, are responsible for the payment of FOIA fees, including outstanding FOIA fees owed by the partnership or their client(s) on whose behalf a FOIA request was submitted. For a corporation, a requester clearly holding himself or herself out to be a representative of the business (e.g., a CPA of an accountancy corporation using corporate letterhead) obligates himself or herself as well as the corporation to the fees. In the case of a franchise, only the local franchise would be held responsible.

  3. Failure to pay prior fees means the failure to pay fees in a case in which the Service actually worked the case and requested payment in connection with a response that was actually made or which the Service was prepared to make. There is no failure to pay fees if the Service merely made an estimate which the requester was not obligated to accept. There is no failure to pay fees if the requester merely fails to respond to a request for prepayment because extensive efforts were anticipated. Nor do subsequent requests create additional failures to pay when the Service has refused to work a case because of a prior failure to pay. However, unpaid fees to any IRS office will prohibit processing in all other offices.

  4. Disclosure personnel should maintain records adequate to permit them to recognize persons having a history of lateness or nonpayment. Such records may consist of entries on correspondence controls, case logs or other records as may be considered practical and convenient under local circumstances. The FOIA/PA nonpayment report is available on E-DIMS. Notations of nonpayment need not be maintained beyond the retention period of the case to which they pertain.

  5. Under previous procedures, payment was often requested prior to the release of records responsive to the request. In these instances, prior unpaid or late fees should only be requested when the Service is prepared to make available the records which would have been released had the fee been promptly paid. Fees cannot be requested if the records are no longer available; nor may a second fee be added because records once obtained have been returned to the files and now have to be retrieved.

    Note:

    After being informed that a current request will not be processed until previously billed fees are paid, a requester may indicate that the previously requested documents are no longer needed. This does not negate the fact that services were performed based on the requester's commitment to pay fees. The fees are still due and payable.

  6. Disclosure personnel as approved by the Disclosure Manager may use their discretion in not requesting payment of prior fees when it is anticipated that such a request would necessitate providing records which would be burdensome to the Service and in which the requester has expressed no current interest.

  7. A decision not to request a prior fee does not preclude the use of that incident of nonpayment or an incident of late payment as bases for demanding advanced payment of current fees.

  8. Responses under this subsection are also subject to instructions appearing at subsections 5.4.1, Remittance Processing, 5.4.2, Adjustments, Payment Tracer and Credit Transfers, and 5.4.3, Clerical Procedures.

  9. The reasons for requesting payment prior to performing services must be documented in case histories.

  10. In applying these guidelines for demanding advance payment you must remember that a history of late payment is not the same as non-payment. See IRM 11.3.5.3.2(1) above. A history of late payment does not permit the Service to refuse to provide services which under current law would be entirely free; it merely permits a demand for advance payment when an actual fee is anticipated. Only unpaid fees will prohibit processing of subsequent requests.

11.3.5.5.3  (05-24-2005)
Commitment to Pay

  1. Requests for records should generally include a commitment to pay fees. Such a commitment may be a simple statement expressing a willingness to pay appropriate or reasonable fees. See IRM 11.3.5.6.1(4) below, if the request contains both a firm commitment to pay and a request for a fee waiver. See IRM 11.3.5.5.1 above, when the fee will exceed the commitment to pay.

  2. A commitment to pay is required unless it can readily be determined that the request will not result in any fees because the threshold $10.00 amount is not met; or the operation of the free search and duplication provisions of the Freedom of Information Act will result in no charges being due. Some examples might be:

    • A request for a specific publication

    • A media requester

    • A valid fee waiver or

    • No search fee and less than 100 pages by an "All Other Requester"

  3. The Service should assure that a requester is aware of the general level of fees to which the requester is committing to pay. For instance, an attorney making a request on behalf of a client could be reasonably assumed to anticipate a fee which might be entirely unexpected by a student engaged in a research project.

  4. Freedom of Information Act requests are generally rejected as imperfect in the absence of a commitment to pay fees unless it can readily be determined that there will be no fees. Requests citing other disclosure authorization may similarly be rejected in the absence of a commitment to pay fees.

  5. Requests lacking a commitment to pay may also be recognized as involving fees of $250.00 or more or as being originated by requesters having a record of prior nonpayment or late payment. Responses should deal with all aspects necessary to produce a processable request, in order to avoid having to sequentially deal with commitment, payment or other matters necessary to perfect a request.

  6. Where the requester is seeking an " all other requester" classification, and you determine that it is a "commercial use" requester, or, the requester is seeking treatment as an "educational or noncommercial scientific institution" or as a member of the "news media," and you determine that it is an "all other requester," you must get a commitment to pay at the less advantageous rate from the requester.

11.3.5.5.4  (05-24-2005)
Processed Requests

  1. All requests for access to records which are not anticipated to involve any fees or which do not lack a commitment to pay fees will be processed unless they:

    1. Have been determined to require prior payment. See subsections 11.3.5.5.1 or 11.3.5.5.2, above.

    2. Have been determined to be otherwise imperfect.

  2. Processing will consist of performing appropriate searches, securing the requested records, analyzing the releasability of the records, photocopying, reviewing and sanitizing all records, and identifying any applicable exemptions in accordance with relevant instructions. A final response letter must be prepared to transmit the responsive documents and advise the requester of any fees due.

    Note:

    This is a change from previous IRM provisions which provided that requesters will be billed for any applicable fees prior to providing documents in response to a FOIA request.

    Note:

    Where initial analysis indicates that the cost of processing the request will exceed $250.00, advanced payment must be requested in accordance with IRM 11.3.5.5.1 above.

  3. If the total services provided are free or below the minimal billing amount ($10.00), it is unnecessary to explain the services provided or state why the were free.

  4. If the total fee exceeds those services provided free to the requester, a combined final response and billing letter must be prepared and transmitted with the responsive documents. In addition to the requirements stated in IRM 11.3.13, Freedom of Information Act, the letter must include the following:

    1. A description of how applicable fees were computed, including the search, review, and duplication fees determined to be due after allowance for any free services.

    2. A statement that checks must be made payable to the Treasury of the United States.

    3. A statement that fees paid are reimbursement for services performed and are not refundable.

    4. An explanation that failure to pay the fees will result in the requester's name being added to the unpaid list, and that future requests will not be processed until all fees are paid in full.

  5. Case records must contain documentation showing how fees were computed. This is especially important if the search and/or review fees exceed the amount to be provided free or included efforts in other functions. Documentation should include the identity of the person reporting the search efforts and a short statement of what was done.

  6. If the response will involve both services which are free and services for which payment is requested, there must be a statement indicating the amount and type of service which was free and the amount and type of service for which charges were incurred.

  7. The response must be issued within the 20 day (excepting Saturdays, Sundays, and legal public holidays) statutory time requirement or the 10 working day voluntary extension period. It should also be issued within any alternative time frame necessitated by unusual circumstances or within any accelerated time frame for requests granted expedited treatment.

  8. Disclosure personnel should be prepared to mail a final response including all records being released within three business days of receiving full payment.

  9. In computing the fees determined to be due, allowance will be made for any free services and any fees waived, reduced or previously paid. The following assumptions will apply:

    1. Payments of less than $10.00 are not to be requested

    2. Commercial users will pay all search and review fees regardless of whether any records are located or released

    3. Persons falling into the All Other Requester category may be charged any applicable search charges whether or not any documents are located or released

11.3.5.6  (05-24-2005)
Fee Waivers

  1. The Freedom of Information Act provides that documents shall be furnished without charge, or at a reduced charge, where the agency determines that waiver or reduction of the fee is in the public interest and is not primarily in the commercial interest of the requester. See IRM 11.3.5.6.2 below.

  2. The applicability of various disclosure statutes may sometimes overlap, so that requests pursuant to Privacy Act or Internal Revenue Code provisions may also appear to have Freedom of Information Act aspects. Fees may be waived regardless of the statute cited in the disclosure request or the procedure under which the case is controlled and processed, if the services provided are substantially similar to those performed in response to Freedom of Information Act requests.

  3. The most appropriate fees should be charged for services provided. If varying fees appear to be equally applicable to a situation, Disclosure Managers may exercise discretion to apply the lowest appropriate fee.

  4. Nothing in this IRM should be interpreted to preclude Service employees from providing copies without charge in the furtherance of assigned tax administration duties. Revenue Agents may provide copies of returns or work papers without charge to taxpayers and their representatives as necessary to facilitate the examination of such returns.

11.3.5.6.1  (05-24-2005)
Requesting Waivers

  1. Waiver or reduction of fees must be requested in writing.

  2. The requester must provide the rationale and any required evidence to support the request to waive or reduce fees.

  3. Under some circumstances, the appropriateness of a fee waiver may be so self-evident as to warrant waiver at the initiative of the Disclosure Officer, even though there was no written request for a waiver. For instance, a request from a charitable organization, educational institution or news media for records whose release would obviously be in furtherance of a cause benefiting the general public would generally not be subject to fees, even though a waiver was not specifically requested.

  4. Where a request contains both a firm commitment to pay fees and a request for a fee waiver, both statements should be given effect, and the request should be interpreted to be a firm promise to pay fees if the fee waiver is not granted. An acknowledgment letter should be sent (if required by IRM 11.3.13.4(4)) and the substantive request processed irrespective of whether the fee waiver is granted or denied.

    1. If the fee waiver is granted, the substantive response should expressly grant the fee waiver and address the records at issue. Appeal rights should be given for any records denied.

    2. If the fee waiver is to be denied, but no fees will be incurred, the substantive request should be processed, and the responsive letter should indicate that it was not necessary to consider the fee waiver because there was no fee charged for processing the request.

    3. If the fee waiver is to be denied, and there is an expectation that charges will be incurred, the substantive response should address both the fee waiver denial and any denial of the records at issue. Appeal rights from both the denial of records and the denial of the fee waiver should be granted. If the fee waiver denial is reversed and the requester has not yet paid the fee, a credit of any FOIA invoice should be issued. If the requester has paid the invoice, a refund should be issued.

  5. Where a request contains a request for a fee waiver, but no firm commitment to pay fees, an acknowledgment letter should be sent out and the fee waiver determination should be made prior to the commencement of processing the substantive request. See IRM 11.3.13 .4(4).

    1. If the fee waiver is granted, the substantive request should then be processed.

    2. If the fee waiver is denied, but no commitment to pay fees is necessary, the substantive request should be processed and the response should indicate that it was not necessary to consider the fee waiver because there was no fee charged for processing the request.

    3. If the fee waiver is denied, and, based upon the nature of the substantive request, the imposition of a fee appears to be warranted, the substantive request should not be processed. The responsive letter denying the fee waiver should include administrative appeal rights. The letter should include a statement that, if the requester resubmits the request with a commitment to pay fees, the request would then be processed. The request file may be closed as an imperfect request.

    4. If the fee waiver denial is reversed on appeal, the Service will re-open and process the request. The 20 workday period begins to run from the date the copy of the appeal determination letter is received in the Disclosure office.

11.3.5.6.2  (05-24-2005)
Public Interest

  1. Fees may be waived or reduced when, in the discretion of the determining official, it is in the public interest because furnishing the information is likely to contribute significantly to public understanding of the operations or activities of the Internal Revenue Service (and is not primarily in the commercial interests of the requester).

  2. The determination to waive fees in the general public interest must be based upon an evaluation of the information involved, its value to the public and the intent and capability of the requester.

  3. The following considerations are relevant to a determination to waive fees:

    1. Would disclosure of the releasable records be informative and lead to public understanding of IRS operations or activities?

      Example:

      • The information is of current significance

      • The information is of historical, scientific, or economic significance.

      • The information is not otherwise available to the public

    2. Would disclosure of the releasable records contribute to any understanding of IRS operations or activities by the general public and not just the requester?

      Example: Focus on value and interest to a broad segment of the population. How will the requester convey releasable records to the general public? Personal benefit to a requester is not determinative.

    3. How significant is the releasable record's contribution to the public's understanding of IRS operations or activities?

      Example: The information is of historical, scientific or economic significance. The release of the information could reduce Government fees by obviating the need for other forms of distribution or reducing the anticipated volume of further FOIA requests for the same information.

    4. Contrast any commercial interest of the requester to the significance of the general public understanding of IRS operations or activities. Any information concerning the requester alone is unlikely to contribute to the public understanding of IRS operations or activities.

  4. The following characteristics of the requester could be relevant to a determination to waive fees:

    1. Recognition as a scholar, researcher or authority in a field related to the material requested

    2. Association with a university, laboratory, or bona fide research activity related to the material requested

    3. Membership in relevant professional associations

    4. An established record of publication or dissertation on related subjects

    5. Reputation for impartiality appropriate to scholarly, scientific or journalistic endeavors

    6. Capacity for publication, reprinting or dissemination of the
      information

    7. Capacity for the preservation of the information as in a library, archives, museum or other publicly accessible depository

    8. A cogent proposal for utilizing the material requested in a manner primarily benefiting the general public

  5. The following factors would tend to indicate that a fee waiver would be inappropriate:

    1. The information would be of limited interest to the public

    2. The requested information is clearly exempt so that there will be nothing disclosed to the requester and, therefore, there can be no benefit to public understanding of the operations or activities of the IRS. An example of such information would be a request for third-party returns or return information where the requester has not shown a material interest or produced a consent to disclosure

    3. The requester would be unlikely to disseminate the information because much of it would be personal to the requester

    4. A considerable portion of the requested information relates to the requester's own affairs or appears wanted in connection with an administrative or judicial proceeding involving the requester and the Government

    5. The basis for the request appears to be in pursuit of a hobby or for a personal purpose such as genealogical research

    6. The information is to be used in the requester's entrepreneurial or commercial capacity or may be offered for sale and the release of the information would not reduce Government costs by obviating the need for other forms of distribution or reducing the anticipated volume of further FOIA requests for identical information

    7. The request is one of many similar requests from the same requester seeking basically the same information

    8. The request appears prompted by, or the requester appears associated with, movements inherently inconsistent with the public interest due to the advocacy of discrimination, segregation, public disorder or illegal activity

  6. It is not the purpose of the fee waiver provisions to shift to the Service the burden of the cost of stocking libraries and educational institutions with copies of documents already released whose further dissemination contributes little or nothing to the general public. Such fee waiver requests should be viewed as primarily for the convenience of the requesting institution and need not be granted.

11.3.5.6.3  (05-24-2005)
Indigence

  1. Fees may not be waived or reduced solely because the requester has demonstrated in writing under the penalty of perjury that he or she is indigent.

  2. Inasmuch as an indigent would fall into the All Other Requester FOIA category he or she would be entitled to two hours free search time and one hundred pages of free duplication (as well as free services up to the threshold $10.00 amount) prior to any waiver. See IRM 11.3.5.7.8(2) below.

11.3.5.6.4  (12-31-2001)
Humanitarian Requests

  1. Disclosure Managers may waive fees when the requester has demonstrated that the request primarily serves a humanitarian purpose intended to benefit a person other than the requester.

11.3.5.6.5  (05-24-2005)
Other Waivers

  1. No copying fee will be charged when the requester furnishes the supplies and equipment and makes the copies at the government location. Such activities shall be allowed only if they do not disrupt ordinary business, inconvenience other members of the public, or create hazardous or unpleasant conditions.

  2. Disclosure personnel may encounter circumstances other than those described in this IRM in which fee waivers would contribute to the efficient performance of Government business. Disclosure Managers may exercise their discretion to waive such fees. Normally, no charge will be made for providing records to Federal, state, local, or foreign governments, or agencies or offices thereof, or international governmental organizations.

11.3.5.6.6  (05-24-2005)
Documentation

  1. Determinations to waive or not waive fees must be documented in case records to the extent necessary to enable a subsequent reviewer to understand the rationale for the determination. The case record (the administrative record) is the only information that will be used in judicial review of fee waiver denials.

  2. Denials of fee waiver may be subject to administrative appeal or judicial review.

  3. Disclosure personnel should be prepared to submit a declaration justifying adverse fee waiver determinations setting forth all information considered in issuing their denials.

11.3.5.7  (08-01-2003)
Fee Provisions

  1. The fees specified in this text are generally applicable to the fees resulting from requests for the disclosure of records, including those authorized by the Freedom of Information Act and those authorized by IRC 6103(c) and IRC 6103(e).

  2. Special provisions concerning Privacy Act Access Requests, Copies of Returns, Exempt Organization Returns and Applications, Employee Plans Documents, and Written Determinations are contained in subsections with those headings.

  3. In the absence of any special provisions, any doubts concerning fee computations are to be resolved by assuming that Freedom of Information Act fee provisions are applicable, unless Disclosure Officers determine that a lower fee would be appropriate.

11.3.5.7.1  (05-24-2005)
Copies

  1. The fee for copies is $.20 per copy of each page, up to 8 1/2'' x 14''.

  2. Fees for copies exceeding 8 1/2'' x 14'' are to be charged in multiples of $.20 per each 119 square inches or fraction thereof, unless the equipment used to produce the copies is known to involve an actual cost exceeding that rate.

  3. Copies of photographs, films, and other materials are charged at the actual cost of duplication.

  4. The fee for copies is the same regardless of whether copies are produced in response to the request at hand or are drawn from existing stocks including, at the convenience of the Service, original materials or surplus printed materials. See IRM 11.3.13, regarding FOIA requests that involve the release of free IRS publications.

  5. Fees for copies are applicable to records produced by word processing equipment and to computer printouts. There may, however, be additional charges to cover the search aspect of producing copies from data processing or word processing equipment.

  6. Records produced in electronic format, i.e., records that can be downloaded or transferred intact to a diskette, compact disk (CD), magnetic tape/cartridge or other electronic medium, are charged at the actual cost of duplication.

  7. Even where a FOIA requester desires inspection rather than copies of records, fees for copies are applicable to the inspection of records whenever it is necessary to produce a copy in order to permit inspection, such as when:

    1. Deletions of exempt material preclude the inspection of originals

    2. Adjacent material (as on rolls of microfilm) is not available to the general public

    3. The storage media does not provide for visual inspection

    4. Equipment necessary to inspection is not available at the site selected for inspection

    5. Transfer of an open case file would cause a disruption of tax administration functions

11.3.5.7.2  (05-24-2005)
Searches

  1. The regulations at 26 CFR 601.702(f) provide for search fees at the salary rate of the person making the search. The regulations also permit the Service to establish an average rate to be used in lieu of doing a computation each time a search is performed. The average fee for services of clerical, professional, and supervisory personnel involved in locating records (other than electronic records) is $17.00 for each hour or fraction thereof.

  2. The fee for searches of computerized records is the actual direct cost of the search, including computer search time, runs, tape duplication, other operations, and the operator salary. Computer costs are described in IRM 11.3.5.7.3 below.

  3. The search fee is applicable to all searches including those which take less than one hour in excess of any allowable free search. While portions of hours may be charged, aggregate portions of less than one hour before "rounding up." If two functions report 20 minutes of search time each, the total hour(s) billed is one hour. Do not round each 20 minute charge up to one hour and bill for two hours total.

  4. Search time includes planning and managing the search, preparing memorandums or making phone calls to the offices that actually perform the search activity, preparing transmittal memorandums, reporting on the results of the search and restoring any documents to their proper place in the file. Search time does not include time expended on determining whether to assert an exemption.

  5. Search efforts include any analysis necessary to determine that a record is subject to the request and any time taken to examine a file for the purpose of identifying individual records as subject to the request.

  6. Records retrieved from Federal Records Centers (for which actual search time may be unknown) will be assumed to necessitate one half hour search time for each separate accession.

11.3.5.7.3  (05-24-2005)
Computer Costs

  1. Fees for the use of computers and related data processing equipment will be based upon the actual costs to the Service.

  2. Fees are applicable to all data processing operations necessitated by the request, regardless of whether operations are characterized as searches, runs, matches, analyses, tape duplication or other terms.

  3. Variations in equipment and operations necessary to service a request preclude establishing a standard fee. Actual costs are to be based upon information provided by data processing personnel performing the services and may reflect industry wide prevailing costs.

  4. In addition to fees based upon equipment used, computer costs may include the operator's salary. For requesters in the "other requester" category, the charge for computer search shall begin when the cost of the search (including the operator time and the cost of operating the computer) equals the equivalent dollar amount of two hours of the salary of the person performing the search. See 26 CFR 601.702(f)(5)(i)(B).

  5. Diskettes, CDs, tapes, cartridges or other electronic record form produced will be charged at actual costs.

  6. Inquiries using IDRS, CFOL, or AIMS and standard master-file transcripts have minimal data processing costs and will result in charges for search time of personnel and copy fees only.

  7. Inasmuch as educational and noncommercial scientific institutions whose purpose is scientific research and representatives of the news media do not pay search fees, they cannot be charged for computer time.

11.3.5.7.4  (05-24-2005)
Aggregating Requests

  1. When it is believed upon reasonable basis that a requester or group of requesters is attempting to break a request down into a series of requests for the purpose of evading the assessment of search or duplication fees, the requests may be aggregated and appropriate fees demanded. It is not an appropriate response to advise any requester, " in the future, we will aggregate any requests you submit." A requester you are familiar with used to request a lengthy list of related records in a single request, but now requests one type of record per request, even though the requested records are related (you receive several such requests in one day or so). A requester asks for his or her audit file for a given year, followed up in subsequent days with similar requests for the following years.

  2. Requests for unrelated records generally should not be aggregated. A requester who makes separate requests for unrelated records within a short time period is entitled to the free search and duplication allowances for each. Examples of unrelated requests include: one's own audit records and contract procurement information; one's 2006 collection TDA file and internal collection delegation orders; GCM background files and various IRM sections; and one's 2005 criminal investigation file and one's 2006 audit file.

11.3.5.7.5  (05-24-2005)
Review

  1. Review is the process of examining records in response to commercial use requesters. Commercial use requesters may be charged for time spent reviewing records to determine whether they are exempt from mandatory disclosure under applicable FOIA exemptions.

  2. Review includes the time spent to make any deletions which may be determined to be appropriate.

  3. Review may be charged only for the initial determination of the applicability of a FOIA exemption to the requested records. It may not be charged again upon appeal of any withheld records. However, where the appeal results from a withholding for which no review charges were previously paid (e.g., a total denial), or if a 5 USC 552 (b)(7)(A) claim was initially made and at the appeal or litigation stage, a change in circumstances no longer makes that exemption applicable, but new exemptions are considered for the first time, an initial review may take place at these later stages and charging review fees would then be appropriate.

  4. The regulations at 26 CFR 601.702(f) provide for review fees at the salary rate of the person performing the review. The regulations also permit the Service to establish an average rate to be used in lieu of doing a computation each time a review of records is performed. The average fee for services of clerical, professional and supervisory personnel involved in reviewing records is $21.00 for each hour or fraction thereof. While portions of hours may be charged, aggregate portions of less than one hour before "rounding up." If two functions report 20 minutes of review time, the total hour(s) billed is one hour. Do not round each 20 minutes charged up to one hour and bill for two hours total.

  5. A subsequent commercial use requester for previously reviewed records will only be responsible for the incremental additional search and review fees plus all duplication fees required to respond to the request.

11.3.5.7.6  (12-31-2001)
Other Costs

  1. Other services and materials not specifically identified elsewhere will be provided at actual cost.

  2. Shipping charges to transport records from one location to another, or for the transportation of an employee to the site of requested records when it is necessary to locate rather than examine the records, is at the rate of the actual cost of such shipping or transportation.

  3. Services not required by the FOIA are provided at the discretion of the IRS.

11.3.5.7.7  (05-24-2005)
Certification

  1. The fee for certification is $1.00 for each document certified, regardless of the number of pages. This type of certification is only for the stamped signature form. See IRM 11.3.5.6.2, Requesting Certifications.

  2. Providing certification services normally will involve copy and search charges also.

  3. Certification services are not required by the FOIA and are provided at the discretion of the IRS. See IRM Chapter 11.3 and specifically IRM 11.3.13, for more information on certifications, especially as they relate to the FOIA.

11.3.5.7.8  (05-24-2005)
Contractors

  1. IRS may release records to a private contractor for duplication. If the records contain information protected from disclosure by IRC 6103, an appropriate contract under IRC 6103(n) must be executed. If the records contain material protected by the Privacy Act, such as personnel records, the applicable Privacy Act clauses must be present in the contract. Where possible, the contractor should bill and collect directly from the requester. There is no problem with the fees going to the contractor rather than to Treasury. The Comptroller General held that this kind of contracting is proper so long as the proposed procedures were not used to delay or deny access to information or otherwise circumvent the intent or specific provisions of FOIA (a)(4) or the User Charge Statute, 31 USC 483a.

11.3.5.8  (05-24-2005)
Minimum Billing Amount

  1. The Freedom of Information Act provides that no fee may be charged if the routine collection and processing of the fee is likely to equal or exceed the amount of the fee.

  2. In order to comply with this provision, there will be no fee charged in any FOIA case unless the fee (after provision of any free search, review or duplication efforts) is equal to or exceeds $10.00.

  3. Because of the frequent overlap of FOIA and Privacy access provisions, the standard stated above will apply to Privacy Act cases also.

  4. This minimum is not applicable to requests processed pursuant to IRC 6103, IRC 6104 or IRC 6110.

11.3.5.9  (05-24-2005)
Special Provisions

  1. Special fee provisions apply to Privacy Act access requests, requests for copies of returns, requests involving written determinations and requests for Freedom of Information Reading Room materials. See the appropriate sections of this IRM for specific guidance.

11.3.5.9.1  (05-24-2005)
Privacy Act Access Requests

  1. The Privacy Act of 1974 provides for duplication fees but does not make any provisions for search or review fees.

  2. Duplication fees for Privacy Act requests will be the same as for Freedom of Information Act requests and the same allowances for free duplication will be applied.

  3. Freedom of Information Act and Privacy Act requests from individuals for records about themselves will be processed under the fee provisions of the Privacy Act.

11.3.5.9.2  (05-24-2005)
Copies of Returns

  1. A charge shall be made for each copy of a tax return and its attachments supplied in response to a Form 4506, "Request for Copy of Tax Return." The amount of the charge shall be a reasonable fee as computed by the Commissioner from time to time, and as set forth on Form 4506.

    Note:

    The RAIVS Unit function in the campuses processes these requests.

  2. When copies of returns are specifically requested and are made available by Disclosure personnel they will apply the fees established on Form 4506 in order to avoid any appearance of inconsistency. When copies of returns are provided incidental to releasing a file containing such copies, the $.20 per page copying fee is applicable.

  3. Requests for "returns and related documents" processed by use of Form 4506, should not be broadly interpreted to include entitlement by the requester to all closed audit file documents that may be associated with the requested return. "Related documents " refers to the attachments and schedules filed with the returns, and considered under IRC 6103(b)(1) as part of the return. It does not include administrative files such as return examinations or collection TDAs.

  4. However, if specifically requested on a Form 4506, 1902 series forms, CP 2000 notices, and statutory notices of deficiency may be provided consistent with Customer Service instructions. These forms have all been previously made available to the taxpayer and no discretionary withholding would be at issue.

  5. Form 4506 may not be used to request copies of Substitutes for Returns prepared by the Service as these are return information as defined in IRC 6103(b)(2).

11.3.5.9.3  (05-24-2005)
Exempt Organization Returns and Applications

  1. Requests for copies of exempt organization returns and applications pursuant to IRC 6104 are processed in accordance with IRM 21.7.7, Exempt Organizations and Tax Exempt Bonds. Form 4506-A , Request for Public Inspection or Copy of Exempt Organization Tax Form, is used for this purpose.

  2. There will be a charge based on FOIA fees for the categories of requesters for copies furnished by the Service. See IRM 11.3.9 for more information about disclosure of information on Exempt Organizations. Form 4506-A may also be used for this purpose.

11.3.5.9.4  (05-24-2005)
Employee Plans Documents

  1. Copies of employee plans documents are made available pursuant to IRC 6104 by Employee Plans personnel or by Disclosure personnel when appropriate.

  2. There will be a charge based on FOIA fees for the categories of requesters for copies furnished by the Service. See IRM 11.3.10 for more information about disclosure of information on Employee Plans.

11.3.5.9.5  (05-24-2005)
Written Determinations

  1. This instruction pertains to the fees for releasing written determinations, including rulings, determination letters, technical advice memoranda, and Chief Counsel advice pursuant to IRC 6110.

  2. The fee for providing copies of written determinations which are on deposit as shelf material in the Freedom of Information Reading Room is $.20 per page.

  3. Requests for background files are processed exclusively by the Associate Chief Counsel (Procedure and Administration) in Headquarters. Current fees are:

    1. Search Fee: $23.50 for each determination file requested

    2. Duplication Fee: $.20 for each page copied

    3. Deletion and Duplication Fee: $2.00 for each page which must be analyzed for potential deletions and copied are merged in accordance with Rev. Proc. 95-15

    4. The search fee and deletion fee established in subparagraphs a) and c) will only be charged the first time the background file is requested

11.3.5.9.6  (05-24-2005)
Freedom of Information Reading Room Materials

  1. Material in the Freedom of Information Reading Room is not subject to a search fee when made available by the Reading Room.

  2. Disclosure personnel processing requests for Freedom of Information Reading Room materials (rather than referring them to the Freedom of Information Reading Room) should not apply search fees.

  3. Disclosure personnel may apply search fees when it is necessary to obtain the materials elsewhere, such as when former Freedom of Information Reading Room materials are no longer maintained because they have become obsolete.

  4. The duplication fees for Freedom of Information Reading Room shelf materials furnished by IRS personnel will be determined based on the category of requester. See Exhibit 11.3.5-1 which provides guidance for determining applicable fees.

11.3.5.9.7  (08-01-2003)
Mixed Requests

  1. Requests may be received which involve both FOIA or Privacy Act records subject to the $10.00 minimum for billing purposes, and records requested pursuant to IRC 6103,IRC 6104 or IRC 6110 and not subject to the billing minimum.

  2. Amounts which remain outstanding from prior requests may be combined with current charges to meet the $10.00 minimum for billing.

11.3.5.10  (05-24-2005)
Requesting and Processing Payments

  1. All requests for payments are to be made by correspondence.

  2. Correspondence requesting payment may refer to other matters as necessary to process requests in a prompt and practical manner.

  3. Requesters should send payments, accompanied by a copy of the correspondence, to the Disclosure office.

  4. Upon receipt of payment, necessary action will be taken to process the payment and make final disposition of the request.

  5. Disclosure personnel will prepare a daily listing (unless no payments are received that day) transmitting payments to the Accounting Section.

  6. Payments should be listed under the appropriate account, totaled by account number in order to permit proper deposit, as follows:

    • Account 945: Written Determinations ( IRC 6110)

    • Account 3221: TE/GE ( IRC 6104 )

    • Account 3223: Freedom of Information Act Requests, Privacy Act requests, miscellaneous

    • Account 20X6877, returns and return information ( IRC 6103)

  7. The listing under each account should show each payment received that day identified by:

      • Name of requester

      • Case number (if any)

      • Amount of payment

      • Check or money order number

  8. The transmittal and payments must be sent to:


    Internal Revenue Service
    Administrative Center
    P.O. Box E
    Beckley, WV 25801

  9. If a requester has previously failed to pay a fee in a timely fashion (i.e., within 30 days of the date of the billing), the requester may be required to pay the full amount owed plus any applicable interest (31 USC 3717), and to make an advance payment of the full amount of the estimated fee before the Disclosure Officer begins to process a new request or the pending request.

  10. Whenever interest is charged, the Service shall begin assessing interest on the 31st day following the day on which billing was sent. Interest will be at the rate prescribed in 31 USC 3717. In addition, the Service will take all steps authorized by the Debt Collection Act of 1982, including administrative offset pursuant to 31 CFR Part 4, Disclosure to Consumer Reporting Agencies and Use of Collection Agencies, to encourage repayment.

11.3.5.10.1  (12-31-2001)
Accounting Section Processing

  1. The Accounting Section will be responsible for depositing the payments to the appropriate account in accordance with their procedures.

11.3.5.11  (05-24-2005)
Refunds

  1. Disclosure Managers and the Chief, Disclosure (or their designees) may authorize the refund of monies paid, in response to a written request, whenever:

    1. There was an error in computing the fees

    2. The Service provided the wrong materials

    3. The Service failed to provide material paid for

      Note:

      See IRM 11.3.5.5.1(4)(c) above

    4. An advance payment resulted in an overpayment

    5. Unusual circumstances make issuance of a refund appear equitable and would not result in the requester enjoying access to the records without payment of appropriate fees

  2. Refunds are authorized by memorandum from the appropriate designee to the Accounting Section listing the date of the original transaction and identified by:

    1. Account number

    2. Case number (if any)

    3. Name and address of requester

    4. Amount of refund.

  3. The Accounting Section will process requests for refunds in accordance with their procedures.

Exhibit 11.3.5-1  (05-24-2005)
Fee Determinations for Freedom of Information Reading Room Materials

  1. Requests for Freedom of Information Reading Room shelf materials serviced by IRS personnel, will be treated as follows.

    If the request is from a commercial user for 50 or fewer pages:
      Then provide the copies with no charge.
    If the request is from a commercial user for 51 or more pages:
      Then request payment of $10.20 plus $0.20 for each page in excess of 51.
    If the request is from the other categories of requesters for 150 or fewer pages:
      Then provide the copies with no charge because they are allowed 100 pages free duplication.
    If the request is from the other categories of requesters for 151 or more pages:
      Then request payment of $10.20 plus $0.20 for each page in excess of 151.

  2. Requests for information concerning the fees for Public Access Reading Room shelf materials, will be treated as follows.

If the cost of the materials requested by the category requester making the inquiry would result in no charge:
  Then mail the copies immediately.
If the total pages of the documents requested from a commercial user exceed the number which may be provided without charge:
  Then advise the requester of the number of pages in each document, and inform the requester that they may request 50 or fewer pages with no payment, but that requests for 51 or more pages must be accompanied by payment of $10.20 plus $0.20 for each page in excess of 51.
If the total pages of the documents requested by other categories of requesters exceed the number which may be provided without charge:
  Then advise the requester of the number of pages in each document, and inform the requester that they may request 150 or fewer pages with no payment, but that 151 or more pages must be accompanied by payment of $10.20 plus $0.20 for each page in excess of 151.

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