11.3.8  Disclosure of Written Determinations

11.3.8.1  (12-19-2008)
Authority

  1. Public inspection of written determinations include letter rulings, determination letters, technical advice memoranda, or Chief Counsel advice as authorized by Internal Revenue Code (IRC) § 6110, as amended.

  2. Regulations pertaining to the public inspection of written determinations appear at 26 Code of Federal Regulations (CFR) § 301.6110.

11.3.8.2  (04-22-2011)
Definitions

  1. Written determinations include the following:

    1. Private Letter Rulings (PLR),

    2. Technical Advice Memoranda (TAM),

    3. Determination Letters,

    4. Chief Counsel Advice (CCA), and

    5. Ruling letters issued by the office of Exempt Organizations of Tax Exempt and Government Entities (TE/GE) Division denying or revoking tax exempt status.

  2. A written determination does not include the following:

    1. any advance pricing agreement entered into by a taxpayer and the Secretary,

    2. any background information related to an advance pricing agreement,

    3. any application for an advance pricing agreement,

    4. any closing agreement under IRC § 7121, or

    5. background information related to a closing agreement.

    See IRC §§ 6110(b)(1), 6103(b)(2)(C), and 6103(b)(2)(D).

  3. Chief Counsel advice means written advice or instruction, under whatever name or designation, prepared by any Headquarters office component of the Office of Chief Counsel that is issued to Area Counsel, area offices, or campuses that convey any legal interpretation, position, or policy pertaining to a Internal Revenue Ruling position. See IRC § 6110(i) for further information.

11.3.8.3  (04-22-2011)
Fees and Billing Procedures

  1. Instructions relating to fees and billing procedures for services performed in connection with the public inspection of written determinations are provided in IRM 11.3.5, Fees.

  2. Pursuant to IRC § 6110, all billing for fees associated with requests for background file documents are performed by personnel of the Disclosure and Litigation Support Branch. The calculation of fees associated with requests for issuance of private letter rulings, are performed by personnel of the Docket, Records, and User Fee Branch. Both branches are within the Legal Processing Division, Office of the Associate Chief Counsel (Procedures and Administration), hereafter referred to as Counsel's Legal Processing Division.

11.3.8.4  (07-08-2008)
Documents Requiring Preparation for Release

  1. This section contains instructions regarding documents requiring preparation for release.

11.3.8.4.1  (04-22-2011)
Written Determinations

  1. Requests for written determinations issued pursuant to a request made on or after November 1, 1976, are handled by Counsel's Legal Processing Division.

  2. The initial preparation of written determinations for inspection is performed in connection with the issuance process and is the responsibility of the employee assigned to issue the determination.

  3. Within Headquarters, the following offices have the responsibility for preparing and issuing written determinations:

    • Office of the Associate Chief Counsel (Procedure and Administration)

    • Office of the Associate Chief Counsel (Corporate)

    • Office of the Associate Chief Counsel (Financial Institutions and Products)

    • Office of the Associate Chief Counsel (Income Tax and Accounting)

    • Office of the Associate Chief Counsel (Passthroughs and Special Industries)

    • Office of the Division Counsel/Associate Chief Counsel, TE/GE

    • Office of the Associate Chief Counsel (International)

    • Office of the Commissioner, TE/GE

  4. Additional processing (such as requests for additional deletions) and preparation for printing are performed by Counsel's Legal Processing Division.

  5. All written determinations, released each week pursuant to IRC § 6110, are available on the internet under the Freedom of Information Act (FOIA) link at: http://www.irs.gov/foia .

  6. In Field Offices, Form SS-8 written determinations are issued by the Small Business and Self-Employed (SB/SE) operating division.

  7. Prior written determinations are those issued pursuant to a request made prior to November 1, 1976. Prior written determinations fall within two categories:

    1. Reference written determinations: any written determination that the Commissioner determines to be the basis for a published revenue ruling, unless such revenue ruling is obsoleted, revoked, superseded, or otherwise held to have no effect and

    2. General written determinations: any other written determination.

  8. General written determinations issued prior to July 5, 1967 will be prepared for release only in response to a written request.

  9. The preparation of prior written determinations for inspection is the responsibility of Counsel's Legal Processing Division.

  10. Prior written determinations issued by District Directors are not subject to release.

11.3.8.4.2  (07-08-2008)
Background File Documents

  1. Background File Documents include:

    1. The request for a written determination,

    2. Any written material submitted in support of such request by the person who made the request (or such person's authorized representative),

    3. Any written communication, or memorandum of a meeting, telephone communication, or other contact between Internal Revenue Service (IRS) personnel and anyone outside the IRS about a written determination, received before the issuance of the written determination, except as excluded in (2) below, and

    4. Any subsequent communication between Headquarters and area business division concerning the factual circumstances underlying the request for a technical advice memorandum, or concerning a request by the area business division for reconsideration by the Headquarters of a proposed technical advice memorandum.

  2. Background File Documents do not include:

    1. Communications between the Department of Justice and the IRS relating to any pending civil or criminal case or investigation,

    2. Communications within the IRS,

    3. Internal memoranda or attorney work products prepared within the IRS, including the Transmittal Memorandum for a technical advice memorandum,

    4. Correspondence or any portion of correspondence relating solely to making deletions pursuant to the release of written determinations or relating to a request for postponement of the release of written determinations,

    5. Material relating to a request for a written determination that is withdrawn prior to issuance or that the IRS declines to answer, a request for technical advice or Chief Counsel Advice that Headquarters declines to answer, or the appeal by a taxpayer of a business divisions' decision not to seek technical advice,

    6. A response to a request for technical advice that the area business division declines to adopt, and the area business divisions' subsequent request for reconsideration, or

    7. The application and supporting documents for an organization denied exempt status or the examination file for an organization whose exempt status was revoked.

  3. Background File Documents for written determinations that have been released for public inspection are made available upon specific written request.

  4. The preparation for public inspection of Background File Documents (for written determinations issued by Headquarters) is the responsibility of Counsel's Legal Processing Division.

  5. The preparation for public inspection of the Form SS-8 Background File Documents is the responsibility of SB/SE.

11.3.8.4.3  (04-22-2011)
Third Party Communications

  1. A record will be made of any communication (whether written, by telephone, at a meeting, or otherwise) received by the IRS prior to the issuance of a written determination from any person other than the person to whom the determination pertains or such person’s authorized representative.

  2. Such record will be considered a Background File Document as detailed in IRM 11.3.8.4.2 above.

  3. A notation that such communication has been made will be placed on the written determination when it is released to the public. The notation will consist of the date of the communication and the category of person making the communication, such as the following:

    • Congressional

    • Department of Commerce

    • Department of the Treasury

    • Trade Association

    • White House

    • Educational Institution

  4. The notation does not apply to any communication made by the Chief of Staff of the Joint Committee on Taxation per IRC § 6110(d)(2), nor does it apply to communications between the Internal Revenue Service and Department of Justice with respect to a pending civil or criminal case or investigation (IRC § 6110(d)(2)).

  5. Any person may request that the IRS disclose the name of the person making the communication. Such name will not be provided by the IRS if it would indirectly identify the taxpayer.

  6. Provisions exist for a person to obtain a court order requiring release of the identity of the recipient of a written determination involving a third party contact, and for the recipient or the third party to intervene in opposition to such action. See IRC § 6110(d)(3).

11.3.8.5  (12-31-2001)
Exemptions

  1. Certain information contained in written determinations or background file documents is exempt from release to the public.

11.3.8.5.1  (05-20-2005)
Enforcement Cases

  1. The IRS is not required to make available to the public any technical advice memorandum or Chief Counsel advice or any related background file document involving any matter that is the subject of a civil fraud, criminal investigation, jeopardy or termination assessment until after any action relating to such investigation or assessment is completed. The material may then be made available if a written request is made for inspection.

11.3.8.5.2  (07-08-2008)
Accounting and Funding Methods and Periods

  1. The IRS is not required to make available to the public, except upon written request, written determinations that relate solely to approval of any adoption of or change in the following:

    1. The funding method or plan year of a plan under IRC § 412,

    2. A taxpayer’s annual accounting period under IRC § 442,

    3. A taxpayer’s method of accounting under IRC § 446(e), or

    4. A partnership’s or partners’ taxable year under IRC § 706.

11.3.8.5.3  (07-08-2008)
Exempt Organizations, Employee Plans, and Tax Convention Information

  1. IRC § 6110 does not apply to any matter to which IRC §§ 6104 or 6105 applies.

11.3.8.6  (04-22-2011)
Information Subject to Deletion

  1. Before making any written determination or background file documents (other than Chief Counsel Advice) available for public inspection, specific information shall be deleted:

    1. Names, addresses, and other identifying details of any person, other than the identifying details of a person who makes a third party communication discussed in IRM 11.3.8.4.3,

    2. Any information that would indirectly identify any person in the written determination,

    3. Information specifically authorized under criteria established by an Executive Order to be kept secret in the interest of national defense or foreign policy, and that is in fact properly classified pursuant to such Executive Order,

    4. Information specifically exempted from disclosure by any statute (other than the Internal Revenue Code) that is applicable to the IRS,

    5. Trade secrets and commercial or financial information obtained from a person and privileged or confidential,

    6. Information, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy,

    7. Information contained in or related to examination, operating, or condition reports prepared by, or on behalf of, or for use of an agency responsible for the regulation or supervision of financial institutions, or

    8. Geological and geophysical information and data, including maps, concerning wells.

  2. For written determinations designated as Chief Counsel Advice, specific information shall be deleted in accordance with subsection (b) and (c) of 5 United States Code (USC) § 552, except that no section of Title 26 (IRC) can be asserted in conjunction with 5 USC § 552(b)(5). See IRM 11.3.13, Freedom of Information Act (FOIA).

11.3.8.6.1  (12-31-2001)
Disclosure Disputes

  1. The preparation of a current written determination or background file documents for release to the public includes providing the person to whom the written determination pertains with a notice of intention to disclose such documents and with a copy of the text as proposed for release.

  2. Administrative and judicial remedies are provided whereby the person to whom the written determination pertains may attempt to restrain disclosure.

  3. Provisions also exist for administrative and judicial action to provide for additional disclosure of materials deleted or to compel disclosure of materials that have been improperly withheld.

11.3.8.7  (04-22-2011)
Indexes of Headquarters Written Determinations

  1. Counsel's Legal Processing Division, will provide an index to the FOIA Reading Room. The index is also available on the internet at: http://www.irs.gov/foia

  2. Each current written determination is coded with a nine digit identification number (seven digits for written determinations issued prior to 1999). The first four digits represent the year, the next two digits the week of the year, and the last three digits the number assigned to the written determination for index purposes.

    Example:

    200901001 indicates that it is the first written determination issued for public inspection in the first week of 2009.

  3. The index is organized by Code section and lists the nine digit identification number for those written determinations that have been released. Requesters of copies of written determinations are encouraged to make their requests by the identification number, but may request all written determinations pertaining to a Code section.

  4. The IRC § 6110 Index is identified as Publication 1078, and is organized as follows:

    1. An index is issued each week during which current written determinations are released;

    2. The weekly index includes that week’s new issuances (identified by asterisks) plus all issuances released during prior weeks of that same year. Consequently, each weekly index grows larger and supersedes the prior week’s index;

    3. The final weekly index of any year constitutes the cumulative yearly index. The first weekly index of the next year begins a new series and contains only that week’s issuances;

    4. In order to have a complete index of all current written determinations, it is necessary to have each yearly index issued to date, plus the latest weekly index.

11.3.8.8  (07-08-2008)
Written Determinations

  1. Requests for sanitized copies of worker classification determinations, background file documents, and other statistical information about determinations are available from the following sites: See Form SS-8, Determination of Worker Status for Purposes of Federal Employment Taxes and Income Tax Withholding, to determine which location to forward requests.

    Mailing Address Mailing Address
    Internal Revenue Service
    SS-8 Determinations
    PO Box 630
    Stop 631
    Holtsville, NY 11742–0630
    Internal Revenue Service
    SS-8 Determinations
    40 Lakemont Road
    Newport, VT 05855–1555
    Phone: (802) 751-4475

11.3.8.8.1  (12-31-2001)
Headquarters Written Determinations

  1. Any request relating to a Headquarters written determination will be forwarded to the Chief, Headquarters Disclosure Office for response.

  2. The receiving office will advise the requester of the transfer and request that any future requests be properly submitted to the Chief, Headquarters Disclosure Office.

  3. It may be necessary to split a request and provide partial service locally if a request covers both area and Headquarters written determinations.

11.3.8.9  (05-20-2005)
Headquarters Freedom of Information Reading Room

  1. The Freedom of Information Reading Room will receive current Headquarters written determinations released by Counsel's Legal Processing Division every Friday.

11.3.8.9.1  (05-20-2005)
Headquarters Services

  1. The Freedom of Information Reading Room will maintain the written determinations received in identification number order.

  2. Members of the public may inspect or obtain copies of written determinations maintained in the FOIA Reading Room and any indexes thereto. These written determinations are also posted on the IRS website at: http://www.irs.gov/foia

  3. Indexes may be provided in their entirety or in segments pertaining to specified sections of the Code.

  4. The Chief, Headquarters Disclosure Office will receive requests for Background File Documents and forward the request to Counsel's Legal Processing Division that will perform any necessary billing services.

11.3.8.10  (03-31-2003)
Mailing Lists

  1. The internet site at www.irs.gov/foia constitutes the only automatic distribution of written determinations and indexes that can be provided.

  2. The FOIA Reading Room does not maintain any mailing lists, standing orders for various types of documents, or requests received in anticipation of the release of material.

11.3.8.11  (07-08-2008)
Disclosure Manager Responsibilities

  1. Disclosure staff members are responsible for providing advice and assistance to any member of the public seeking access to written determinations.

  2. Any request received for written determinations, indexes or related materials available to the public, will be forwarded to the Headquarters Freedom of Information Reading Room, after advising the requester of the transfer and requesting that any future requests be properly submitted.

  3. If combined IRC § 6110 and FOIA requests are received, forwarding and notification instructions contained in (2) above should be followed for the processing of the IRC § 6110 part of the request. Routine FOIA processing instructions should be used for the remaining portion of the request.

  4. Disclosure staff processing FOIA or Privacy Act requests may encounter written determinations subject to IRC § 6110 within a file being requested.

    1. If the requester is not the same person to whom such written determination pertains, a potential IRC § 6103 violation exists.

    2. Disclosure staff should not attempt to sanitize such written determinations as their efforts might produce a different result than that achieved pursuant to the IRC § 6110 sanitization and may deprive the taxpayer of statutory rights to restrain disclosure.

    3. The Disclosure caseworker should contact the Headquarters FOIA Reading Room to obtain a copy of the written determination as prepared for release to the public.

    4. If the written determination has not been prepared for release to the public, or cannot be prepared now for release pursuant to IRC § 6110, the Disclosure caseworker will be advised to deny access to the record pursuant to statutory disclosure prohibitions contained in IRC § 6103.


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