11.3.25  Disclosure to Foreign Countries Pursuant to Tax Treaties

11.3.25.1  (06-19-2009)
General

  1. Disclosures of information to, or received from, foreign tax authorities are governed by tax treaties, tax information exchange agreements (TIEAs), and provisions of the Internal Revenue Code.

  2. Most tax treaties entered into by the United States include provisions governing the exchange of information with the treaty partner. The information may relate to income, estate and gift, excise, and other taxes, depending on the terms of the particular treaty. TIEAs may also exist between the United States and other countries to authorize the exchange of tax information.

  3. Returns and return information (referred to in this section collectively as "tax information"), as defined in IRC §6103, are confidential under the statute and cannot be disclosed unless authorized by the Internal Revenue Code.

  4. IRC §6103(k)(4) provides an exception for disclosure of tax information to foreign tax authorities pursuant to a treaty or bilateral agreement. Specifically, IRC §6103(k)(4) provides:

    A return or return information may be disclosed to a competent authority of a foreign government which has an income tax or gift and estate tax convention, or other convention or bilateral agreement relating to the exchange of tax information, with the United States but only to the extent provided in, and subject to the terms and conditions of, such convention or bilateral agreement.

  5. IRC §6105 provides that "tax convention information," or tax treaty information, is confidential and may not be disclosed unless an exception applies. Tax treaty information generally includes information that the IRS receives from a foreign tax authority pursuant to a tax treaty or TIEA. It can also include information that reflects information received from a foreign tax authority, e.g., an outbound communication from which a specific issue or matter can be associated with the particular treaty partner.

  6. IRC §6105(b) provides the following exceptions to the prohibition on disclosure of tax treaty information:

    1. Information may be disclosed to persons or authorities (including courts and administrative bodies) that are entitled to such disclosures under the relevant treaty or agreement. Note: Tax treaties typically impose two conditions for disclosure. First, the disclosure must not be prohibited under domestic law such as IRC §6103. Second, the person to whom the information is disclosed must be involved in the assessment, collection or administration of, the enforcement or prosecution in respect of, or the determination of appeals in relation to, the taxes covered by the treaty.

    2. Information may be disclosed as provided under applicable procedures relating to applications for relief under a tax treaty. See Rev. Proc. 2006-54, Procedures for Requesting Competent Authority Assistance Under Tax Treaties.

    3. With the consent of the foreign tax authority, information may be disclosed to Federal, state, and local enforcement officers and employees who are directly involved in responding to or investigating any terrorist incident, threat, or activity.

    4. The Secretary may disclose information that does not relate to a particular taxpayer if the Secretary determines, after consultation with the relevant treaty partner, that the disclosure would not impair tax administration.

  7. Tax treaties and TIEAs provide that the exchange of information between countries be made through each country's designated"Competent Authority" . The U.S. "Competent Authority " under tax treaties and TIEAs is the Deputy Commissioner (International), LMSB. See Delegation Order 4-12. Tax treaties generally provide for exchange of information between the IRS and foreign tax authorities. Individuals referred to as "Competent Authorities" are designated by each country to make written requests for information and to receive information.

  8. The United States also has FedState agreements (e.g., Tax Implementation Agreements, Tax Coordination Agreements, MOUs) with its Territories that provide for the exchange of information. The U.S. Territories are the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands. Exchange of information under these U.S. Territory agreements also must be made through the Deputy Commissioner (International), LMSB. See Delegation Order 4-36.

  9. Although U.S. Territories are considered "states" for purposes of disclosure pursuant to FedState agreements under IRC §6103(d), agreements with U.S. Territories are "tax conventions," or tax treaties, within the meaning of IRC §6105. As a result, information received by the IRS under U.S. Territory agreements may only be disclosed to the extent provided for in the agreements or in the circumstances described in IRC §6105. See IRM 11.3.25.1(6).

11.3.25.2  (06-19-2009)
Information Received from Foreign Tax Authorities

  1. If the IRS needs information from a country with which the United States has a tax treaty or TIEA , a request is submitted in accordance with established procedures.

  2. IRS employees are to be guided by the provisions of IRM 4.60.1, International Procedures Handbook - Exchange of Information, in requesting information from foreign countries. Deputy Commissioner (International), LMSB, staff (Exchange of Information Teams, Tax Attachés, Revenue Service Representative, or Joint International Tax Shelter Information Centre (JITSIC)) generally reviews the request and, as appropriate, prepares a letter of request for the signature of the Deputy Commissioner (International), LMSB, to be sent to the foreign tax authority.

  3. For Spontaneous Exchanges of Information, Deputy Commissioner (International), LMSB, staff (Exchange of Information Teams, Tax Attachés, Revenue Service Representative, or Joint International Tax Shelter Information Centre (JITSIC)), will forward information received from the treaty partner to the field office with jurisdiction over the taxpayer.

  4. Under IRC §6105(a), tax treaty information received by the IRS from a foreign tax authority must be kept confidential unless an exception applies. See IRM 11.3.25.1(6) .

  5. Because of the treaty secrecy provision, tax treaty information generally may not be disclosed to:

    • State tax agencies under IRC §6103(d);

    • Department of Justice; or

    • Other Federal agencies under IRC §6103(i) or under any other provision of IRC §6103 permitting disclosure for non-Federal tax administration purposes.

  6. The U.S.-Mexico and U.S.-Canada tax treaties provide that information exchanged under the treaties may be shared with state and local authorities.

    1. Pursuant to these treaties, States may be permitted access to tax treaty information received from the relevant foreign tax authority.

    2. Information received by the Deputy Commissioner (International), LMSB, or from the foreign tax authority of these countries may be sent directly to State tax agencies.

      Note:

      This information is considered Federal tax information and its use is governed by the terms of the tax treaty and Basic Agreement. See IRM 11.3.32, Disclosure to State and Local Governments, for a discussion on Basic Agreements between the States and IRS.

  7. Disclosure staff should ensure that information disclosed for non-Federal tax administration purposes is reviewed and tax treaty information is removed prior to disclosure.

    Note:

    Information obtained under a tax treaty is often stamped to indicate that it is tax treaty information.

  8. Information obtained from a foreign tax authority pursuant to a tax treaty or TIEA may be disclosed to the U.S. taxpayer to whom it relates, upon written request from the taxpayer, under IRC §6103(e). In this situation, the taxpayer is considered to be concerned with assessment, collection, enforcement, or prosecution with respect to the taxes which are the subject of the tax treaty or TIEA. Disclosure of information in responses to these requests should be coordinated with Headquarters.

    1. In a case that is not in litigation, the Deputy Commissioner (International), LMSB, must be contacted prior to disclosure of this information.

    2. In a case in litigation, disclosure of such information must be coordinated with Branch 7, Associate Chief Counsel (International).

      Note:

      The Deputy Commissioner (International), LMSB, has the final authority to approve disclosure of information exchanged under a tax treaty or TIEA.

      Exception:

      Disclosure will not be made to the taxpayer if the IRS or the foreign tax authority providing the information objects to disclosure or if disclosure would seriously impair Federal tax administration. See IRC §6103(e)(7) and IRM 11.3.2.2(6), Disclosure to Persons with a Material Interest.

  9. If a Freedom of Information Act request for tax treaty information is received, procedures in IRM 11.3.13 , Freedom of Information Act, should be followed.

11.3.25.3  (06-19-2009)
Disclosure of Information to Foreign Tax Authorities

  1. If information is needed by a foreign country with which the United States has a tax treaty, a request is submitted by the foreign competent authority to Deputy Commissioner (International), LMSB.

  2. Disclosure of information by the IRS to foreign tax authorities must be authorized by the Deputy Commissioner (International), LMSB.

  3. Certain automatic or "routine" exchanges (such as transmission of reports of taxes withheld from income paid to nonresident aliens) are handled through the Exchange of Information Team in the National Office.

  4. The Deputy Commissioner (International), LMSB, generally forwards requests for information to the LMSB Program Manager, Exchange of Information and Overseas Operations; Tax Attachés; Revenue Service Representative; or Director, Joint International Tax Shelter Information Centre (JITSIC).

  5. When the requested information is received from the IRS offices, the Deputy Commissioner (International), LMSB, staff (Exchange of Information Teams, Tax Attachés, Revenue Service Representative, or Joint International Tax Shelter Information Centre (JITSIC)) prepares a document for the transmittal of the information to the foreign competent authority. For requests pertaining to the Simultaneous Criminal Investigation Program, the Deputy Commissioner (International), LMSB, has the authority to authorize any disclosures.

  6. For treaty partner requests pertaining to the Simultaneous Examination Program or Industrywide Exchange of Information, the Deputy Commissioner (International), LMSB, will:

    1. Forward the request to the International Territory Manager for action; and

    2. When the information is received, transmit it to the treaty partner competent authority.

  7. For Spontaneous Exchanges of Information, the Deputy Commissioner (International), LMSB staff, (Exchange of Information Teams, Tax Attachés, Revenue Service Representative, or Joint International Tax Shelter Information Centre (JITSIC)), will transmit U.S.-based information to the treaty partner competent authority.

  8. Generally, returns are not furnished to foreign tax authorities pursuant to tax treaties.

  9. If it should become necessary to issue a summons to obtain the requested information, the summons will be prepared for the staff of the Deputy Commissioner (International), LMSB, and forwarded to Branch 7, Associate Chief Counsel (International) for review prior to issuance.

  10. Return information that may potentially identify a confidential informant or otherwise seriously impair an IRS tax investigation is generally not disclosed to foreign tax authorities.

  11. Information which would reveal business or trade secrets is excepted from the exchange of information provisions of the treaties. See IRM 4.60.1.2.5.3, Trade Secrets, for further procedures.

  12. Disclosures to foreign tax authorities made pursuant to tax treaties must be accounted for in accordance with IRC §6103(p)(3) and the Privacy Act of 1974. See IRM 11.3.37, Recordkeeping and Accounting for Disclosures, for further information.

  13. Information disclosed to U.S. Territories under FedState agreements is governed by IRC §6105. Tax information disclosed pursuant to these agreements under IRC §6103(d) is also subject to the administrative provisions of IRC §6103(p)(3) and IRC §6103(p)(4). Unauthorized disclosures and inspections of tax information exchanged pursuant to U.S. Territory agreements may result in criminal sanctions under IRC §7213 and §7213A and civil damages under IRC §7431.

11.3.25.4  (06-19-2009)
Nontreaty Disclosures to Foreign Countries

  1. Although IRC §6103(k)(4) generally provides the authority for disclosure of tax information to foreign tax authorities, other provisions of IRC §6103 permit limited disclosures to foreign countries or individuals of foreign countries in certain situations. These disclosures can be made regardless of whether the United States has a tax treaty or TIEA with the country. However, when a tax treaty or TIEA is in force, information must be exchanged under the tax treaty or TIEA to the extent possible.

  2. Return information may be disclosed by IRS employees to individuals of foreign countries in accordance with IRC §6103(k)(6). See IRM 11.3.21, Investigative Disclosure.

  3. Returns and return information may also be disclosed to individuals of foreign countries designated in writing by a U. S. taxpayer to receive such information under IRC §6103(c) and (e).

    Example:

    Pursuant to a written taxpayer request and consent for disclosure, IRS may certify to a tax treaty country that taxes were paid in the United States to enable the taxpayer to receive a credit for the taxes on a foreign return.

11.3.25.5  (06-19-2009)
Disclosures to Foreign Countries in Collection Matters

  1. The United States and five of its treaty partners assist each other in the collection of taxes covered by their respective tax treaties. This program is referred to as the Mutual Assistance Collection Program (MCAP) and falls within the scope of the Mutual Assistance Article of the tax treaties in question. The five countries that participate in the MCAP with the U.S. are:

    • Canada

    • France

    • Denmark

    • Sweden

    • The Netherlands

  2. Under MCAP, a requested country will endeavor to collect taxes owed to the requesting country by a citizen of the requesting country who is residing in the requested country. Such data as name, address, identification number, type of tax, amount of tax and any other information deemed necessary to assist the collection process is exchanged with the participating treaty partner.

  3. The Deputy Commissioner (International), LMSB, has re-delegated the authority to sign for matters relating to MCAP to the Manager, Overseas Operations and those officially acting for the Manager, Overseas Operations. See Delegation Order 4-12. The same disclosure provisions apply to exchanges made pursuant to MCAP as apply to other exchanges made under the tax treaties

11.3.25.6  (06-19-2009)
MLAT Requests

  1. For a summary of the procedures for processing the requests for assistance (e.g., providing tax returns and tax return information) under the various treaties on Mutual Legal Assistance in Criminal Matters (MLATs), see IRM 11.3.28.3.2, Disclosures Based on a Mutual Legal Assistance Treaty (MLAT) Request in Criminal Matters.

11.3.25.7  (06-19-2009)
Accounting for Disclosures

  1. All disclosures of returns or return information to foreign governments must be accounted for under IRC §6103(p)(3) using Form 5466-B. Generally, the Chicago Disclosure Office begins this process by completing the taxpayer’s name, SSN and ADP source code. The partially completed form is then sent with the response to the Deputy Commissioner (International), LMSB, for completion and forwarding to the Campus for input. Treaty disclosures made by the Philadelphia Campus are handled in accordance with other specific program procedures.


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