11.3.28  Disclosure to Federal Agencies for Administration of Nontax Criminal Laws

11.3.28.1  (08-25-2009)
Authority for Disclosure

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

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

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

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

    2. An investigation that may result in such a proceeding.

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

    Note:

    This information will be disclosed to these officers and employees solely for their use in such preparation or investigation or grand jury proceeding as noted above.

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

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

    2. An investigation that may result in such a proceeding.

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

    Note:

    This information will be disclosed to these officers and employees solely for their use in such preparation or investigation or grand jury proceedings as noted above.

    Note:

    IRC §6103(i)(2) does not permit disclosure of returns, only other than taxpayer return information.

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

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

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

    Note:

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

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

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

  10. The Victims of Terrorism Tax Relief Act, enacted 1/2002, set out detailed rules for disclosures in terrorism and national security investigations. These provisions were made permanent by the passage of the Emergency Economic Stabilization Act of 2008. Disclosures must be approved by individuals having Delegation Order 11-2 authority. The provisions are:

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

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

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

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

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

      Note:

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

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

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

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

    9. The term terrorist incident, threat, or activity means an incident, threat, or activity involving an act of domestic terrorism (as defined in 18 USC 2331(5)). E.g., check the Cornell University Law site: http://www4.law.cornell.edu/uscode/18/2331.html or include the definition of domestic terrorism in the Definition section under 11.3.28.2, or international terrorism (as defined in 18 USC 2331(1)).

    10. Generally, processing of IRC §6103(i)(3)(C), IRC §6103(i)(7)(A), IRC §6103(i)(7)(B), and IRC §6103(i)(7)(C) requests are handled by HQ Disclosure and will parallel processing of IRC §6103(i)(1), IRC §6103(i)(2), and IRC §6103(i)(5) requests.

      Note:

      The provisions enacted by the Victims of Terrorism Tax Relief Act were made permanent by the passage of the Emergency Economic Stabilization Act of 2008.

11.3.28.2  (08-25-2009)
Definitions

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

  2. Taxpayer identity information is:

    • The name of a person with respect to whom a return is filed

    • His/her mailing address

    • His/her taxpayer identification number or

    • Any combination of a, b, and/or c

  3. Return information is:

    1. A taxpayer's identity.

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

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

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

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

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

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

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

    Example:

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

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

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

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

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

    Note:

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

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

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

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

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

11.3.28.2.1  (08-25-2009)
Examples of Taxpayer Return Information

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

11.3.28.3  (08-25-2009)
Disclosure of Returns and Return Information Pursuant to IRC §6103(i)(1), IRC §6103(i)(2) and IRC §6103(i)(5)

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

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

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

    Note:

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

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

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

    Note:

    Disclosure personnel will request responsive documents using Special Search procedures. Caseworkers will prepare an accurate Form 2275, Records Request, Charge and Recharge, when ordering returns or administrative files. Form 2275 will include the mailing address (Mail Stop number is mandatory) as well as the phone numbers of the caseworker and Disclosure Manager. Fax Form 2275 to the proper Campus Special Search Unit. If no reply is received within three days, the Disclosure Manager should follow up with the appropriate official at the files site. Files site information is available on the Disclosure web page.

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

    Note:

    With IRC §6103(i)(1) orders, the requester often needs only the tax return, so spending resources by providing other documents such as audit workpapers, etc. may be unnecessary spending. If computer transcripts are acceptable or desirable, that option should be explored as well.

  7. Where agreements with requesting officials are in effect regarding contacts, timeframe expectations, etc., document the agreements and maintain them in a permanent administrative file.

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

  9. The liaison Disclosure Office will review all releases of documents pursuant to IRC §6103(i)(1), IRC §6103(i)(2) or IRC §6103(i)(5) to ensure that only covered documents and information are released.

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

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

    Note:

    While information disclosed under IRC §6103(i) can be used in the sentencing phase of a case (see IRM 11.3.28.10), no disclosure can be made relative to requests where disclosed information will be used for sentencing purposes only. A requirement for using disclosed information in sentencing is that the information was obtained during the investigation stage (which can still be ongoing while court action is in progress). If a "sentencing only" request is received, obtain guidance by contacting the Headquarters Chief, Disclosure.

  12. Do not delay processing requests for information pending the receipt of a perfected order or written request. Make no disclosures, however, until you receive the required written request that meets all statutory requirements.

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

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

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

  16. If an IRC §6103(i)(1) order (after coordination with the requesting agency under (5) above) is determined to include tax documents (e.g., wage histories, letters to employers regarding incorrect SSNs submitted on Forms W-2), also known as Educational Correspondence Letters or No Match Letters in the possession of the Social Security Administration (SSA), the IRS liaison Disclosure Office should contact the Technical Advisor for the Criminal Investigation Division (CID) for SSA records who in turn will obtain the necessary responsive documents from SSA. SSA has no statutory authority to provide tax documents to the requesting agency pursuant to an IRC §6103(i) request, only IRS can release tax documents in such cases. SSA will direct requesters who contact them to the HQ coordinator, who will determine whether the order should be processed by the field liaison Disclosure Office or the HQ coordinator. If complications arise, GLD’s Chief, Office of Disclosure, should be consulted for guidance.

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

11.3.28.3.1  (08-25-2009)
Disclosures Based on a Mutual Legal Assistance Treaty (MLAT) Request in Criminal Matters

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

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

    2. CI staff reviews the request and determines if returns/return information are requested or if the request is solely for financial investigative assistance. Only requests for returns/return information will be sent to the Deputy Commissioner International, LMSB (DCI). CI will process financial investigative assistance requests.

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

      Example:

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

  2. DCI also forwards a copy of the request package to the Disclosure Manager, Disclosure Office 4. In a brief e-mail message or memo, ACCI conveys to DCI, CI, and the Disclosure Manager, Disclosure Office 4, the conclusions of its evaluation of the MLAT, but not the legal analysis. The conclusion is limited to:

    1. Whether the respective MLAT and the Internal Revenue Code authorize compliance with the request for tax information and

    2. The conditions to be met before disclosing the information (such as an ex parte order from the District Court under IRC §6103(i)(1) or a letter under IRC §6103(i)(2) from the appropriate Department of Justice official). A copy of ACC’s file memo, containing the legal analysis, may be attached to the communications to DCI and CI, but not to the Disclosure Manager, Disclosure Office 4.

  3. When necessary, based on the message from ACCI, the Disclosure Manager, Disclosure Office 4 may requests OIA to obtain additional information, such as an ex parte court order from the District Court under IRC §6103(i)(1), or a letter under IRC §6103(i)(2) from the appropriate Department of Justice official. Upon receipt of an ex parte court order or a letter under §6103(i)(2), fax a copy. After fulfillment of the conditions stated in the ACCI's memo, the Disclosure Manager, Disclosure Office 4 will forward the relevant documents to DCI.

  4. DCI complies with the MLAT request by forwarding the documents received from the Disclosure Manager, Disclosure Office 4 to DOJ OIA, under the signature of the IRS Competent Authority and in a sealed envelope. The cover letter will include instructions to transmit the envelope to the Central Authority of the requesting treaty partner under the MLAT. DCI may include appropriate instructions regarding confidentiality of the documents and limitations on their use, if any, in the cover letter to DOJ OIA. A copy of the cover letter will be forwarded by DCI to CI.

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

11.3.28.3.2  (08-25-2009)
Disclosures to Main Department of Justice (DOJ)

  1. Requests from Main DOJ frequently are sent to the Disclosure Manager, Disclosure Office 4 primarily due to their geographical proximity. This does not to imply that the Disclosure Manager, Disclosure Office 4 has sole responsibility for these requests.

  2. The Disclosure Office having jurisdiction over the area where the taxpayer's address is located or where the majority of the responsive records reside, in the case of multiple entities, should generally handle a particular request from Main DOL.

  3. Occasionally, Disclosure Offices may need to coordinate a request among themselves. The office having the majority of the responsive records should accept responsibility for preparing the coordinated response to Main DOJ.

11.3.28.3.2.1  (08-25-2009)
Military Judge Requests and Ex Parte Court Orders

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

11.3.28.3.2.2  (08-25-2009)
FISA Courts and Ex Parte Court Orders

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

  2. FISA Courts have been authorized by 50 U.S.C. 1805 to issue ex parte orders. The United States Attorney General is authorized to issue an Application for a FISA Court Order. Since the information contained in the Application contains sensitive information related to terrorist activities, the Application itself is classified as Top Secret and only those individuals with that clearance can have access to the Application and process FISA court orders. Top Secret is the highest level of classification of material on a national level. Such material would cause "exceptionally grave damage" to national security if publicly available.

  3. The Technical Advisor for the Criminal Investigation Division (CID) currently located in the Milwaukee, Wisconsin office, processes all FISA court ex parte orders because that individual has obtained a Top Secret clearance. FISA Court orders are processed as they are for all other non-FISA ex parte Court Orders. All issues regarding FISA matters should be referred to the Technical Advisor for CID.

11.3.28.3.3  (08-25-2009)
Special Requests for Returns, Taxpayer Return Information, and Return Information (Other than Taxpayer Return Information)

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

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

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

    Note:

    All ex parte orders and other requests for returns under the authority of IRC §6103(i) qualify for Campus Priority Search Treatment per IRM 3.5.61. Accordingly, Disclosure personnel will use Special Search rather that IDRS command code ESTAB procedures when requesting returns or administrative files from campus file sites for such requests. Special Search requests require preparation of Form 2275, Records Request, Charge and Recharge. The completed form will be faxed to the appropriate Special Search Unit.

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

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

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

      Note:

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

      1. Do not solicit applications simply to check for adherence with the statute.

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

      3. U.S. Attorneys should maintain written documentation (for safeguard purposes) in their files indicating that the U.S. Attorney has "personally reviewed and authorized" the application, or send a letter to the Disclosure Manager documenting the U.S. Attorney's practice of reviewing and approving each application before submission, or have the order itself indicate U.S. Attorney approval.

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

    2. Issuance of the ex parte court order.

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

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

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

11.3.28.4.1  (08-25-2009)
Notifying the IRS of Intent to Apply for an Ex Parte Court Order

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

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

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

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

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

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

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

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

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

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

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

    2. The tax return of the individual or return information relating to the individual is sought exclusively for use in locating that individual.

    3. There is reasonable cause to believe that the return or return information is or may be relevant to determine the location of the individual.

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

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

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

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

11.3.28.4.3  (08-25-2009)
Information Required in an Ex Parte Court Order

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

    1. Be signed by a Federal district court judge or magistrate.

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

    3. Specify the tax years involved.

    Note:

    Some court jurisdictions approve ex parte orders with an electronic signature in lieu of an ink signature. If the court has a practice whereby the judge or magistrate uses an electronic signature, the order is valid and should be worked (assuming the order meets all other requirements).

  2. Process any ex parte order that does not conform to these requirements as specified in IRM 11.3.28.3(11).

11.3.28.5  (08-25-2009)
Disclosures in Conformity with an Ex Parte Court Order

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

    Note:

    For those requests containing numerous taxpayers, caseworkers may use a spreadsheet to document and track research, requests for and receipt of returns, and documents or other information that were provided to the requester.

    Note:

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

    Note:

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

    Note:

    TIGTA records in TIGTA’s possession do not fall within the scope of an ex parte court order to the IRS. A separate order to TIGTA needs to be made for such records.

  2. If there are open periods (with collection, examination or criminal investigation activity) within the jurisdiction of the liaison office, the Disclosure Office will obtain clearances for any return information regarding the open periods.

    Note:

    The disclosure of returns does not require division/functional clearance nor does the disclosure of return information on periods not considered open. Any local alternative procedures for securing clearances should be documented and be kept in a permanent administrative file.

  3. If the MF response shows that the taxpayer is the subject of an open civil or criminal investigation in another office, the liaison Disclosure Office will coordinate with that office to secure clearance and the return(s) and/or return information.

    Note:

    The non-liaison Disclosure Office does not need to have a copy of the order; however, there is no prohibition against providing a copy to the non-liaison office for processing purposes.

  4. Non-liaison offices will give priority to clearances and requisitions received from liaison offices. The non-liaison office will immediately communicate any problems to the liaison office. The non-liaison offices recommendation regarding disclosure will also be provided to the liaison office.

  5. Since the official designated in Delegation Order 11-2 (as revised) must certify to the court the basis for denying disclosure under IRC §6103(i)(1) or IRC §6103(i)(5), any objection must clearly show that disclosure would seriously impair a civil or criminal tax investigation or identify a confidential informant. Possible alternatives should be explored.

    Example:

    If the disclosure would identify a confidential informant, it might be possible to delete the information about the informant.

  6. In the event there is an objection to granting disclosure, a memorandum of explanation will be prepared for the file and will include detailed facts and circumstances to establish a basis for justifying denial of disclosure, i.e., how it will identify a confidential informant or seriously impair a civil or criminal tax investigation.

  7. If a determination is made to withhold information, notify the requester that the official making the determination is available to discuss the decision and that the requester can appeal a decision to withhold information to the Director, Office of Governmental Liaison and Disclosure.

  8. In situations involving unusually large volumes of records, the liaison office may contact the requesting agency to determine whether a more limited response would be acceptable.

  9. Where a requester initiates contact with the liaison office in advance of obtaining an ex parte court order, the office should also attempt (without disclosing the scope or existence of a record) to have the requester pinpoint the information that is actually needed.

  10. Consider the following when obtaining clearances:

    1. Is there a pending criminal investigation of the taxpayer?

    2. Is the taxpayer the subject of an open examination?

    3. Does the IRS object to the use of the information in an administrative or judicial proceeding? See IRC §6103(i)(4).

    4. Will disclosure of the requested information seriously impair a civil or criminal tax investigation? If so, can any information be furnished that would not impair the tax investigation?

    5. Will the information identify a confidential informant, and, if so, can it be excised?

  11. Maintain documentation of clearances in liaison office files and notate on E-DIMS.

  12. When the MF indicates no record of filing, the liaison Disclosure Officer will certify lack of any record using Form 3050, Certification of Lack of Record, or equivalent (see IRM 11.3.6, Seals and Certifications). Forms 3050 must clearly indicate that the lack of record does not extend beyond any disclosure cut-off date (see (19) below) in the order.

  13. If the MF shows "no entity" and a TIN was furnished, the liaison Disclosure Office should contact the U.S. Attorney or other requesting official prior to preparing Form 3050 to verify the accuracy of the TIN.

  14. If the Disclosure Office caseworker experiences any delay in obtaining the returns and files, he/she should contact the field Disclosure Manager or files supervisor where the returns are located for assistance.

  15. The liaison/non-liaison office having jurisdiction over the responsive records will edit any information prohibited from disclosure.

  16. Information that must be edited includes:

    1. Information that would identify a confidential informant or seriously impair a civil or criminal tax investigation.

    2. Tax convention information (see IRC §6105 and note the exception for IRC §6103 (i)(3)(C) and IRC §6103(i)(7) disclosures). See Delegation Order 266 for those authorized to disclose tax convention information pursuant to IRC §6103(i)(3)(C) or IRC §6103(i)(7).

    3. Wagering tax information protected under 26 USC 4424 (see IRC §6103(o)(2)).

    4. Information obtained from, or on behalf of, a grand jury proceeding, unless a valid order permitting the use of the information has been issued under Rule 6(e) of the Federal Rules of Criminal Procedure.

    5. Returns and return information of a third party or unrelated taxpayer (e.g., another taxpayer’s information that is in a case file because of a possible connection under a provision of IRC §6103(h)(2) or IRC §6103(h)(4)).

    6. Returns and return information concerning tax years not specifically covered by the order.

    7. Numeric DIF scores and SERFE indicators (selection of exempt organization returns for examination). The Director, Governmental Liaison and Disclosure, should be contacted if the requesting official contests these redactions. The requesting official should be made aware that it is IRS policy to delete DIF scores and SERFE indicators. This is a one time notification and can be incorporated into the documentation described in IRM 11.3.28.7.

    8. Other information where disclosure is prohibited by 18 USC 1905 (for example, trade secrets and other business proprietary information).

  17. Unless otherwise provided in the ex parte order, disclosure will be limited to those returns and return information in the IRS's possession on the date of the order.

  18. Returns or related return information subsequently received or developed for the years authorized by the order may be disclosed only if the order provides for further disclosures and designates a specific cut off period.

    Example:

    An order may state that the IRS disclose information as may come into its possession subsequent to the date of the order, and for a period no longer than xx number of days thereafter. Generally, the order will specify a 60 or 90 day cut off. When no cut off is given, the date of the order is the cut-off date.

    Note:

    The end of the extended timeframe of the order (e.g., 90 days) does not mean that all disclosures in response to the order must stop. If a return that was received by the IRS prior to the end of the cut off date (e.g., order date plus 90 days in this case) of the order is finally obtained from files after the cut off date, it may be furnished to the requester. The determining factor is that the IRS must receive the responsive data prior to the end of the cut off date of the order. The fact that the responsive data has not been obtained by the Disclosure Office prior to the cut off date does not change the fact that the data was in the IRS’s possession prior to the cut off date.

  19. In no case will the cut off date exceed 90 days. This 90 day period is incorporated in DOJ's U.S. Attorney's Manual. Certification of Form 3050 must apply to non-filing only for the time frame covered by the ex parte court order. See IRM 11.3.6 for more information.

  20. Generally, information disclosed under IRC §6103(i) can only be redisclosed to Federal employees personally and directly engaged in the investigation. State and local personnel will be considered Federal employees for disclosure purposes as long as the employees are:

    1. Formally appointed, rather than merely detailed.

    2. Assisting in a Federal investigation.

    3. Supervised by a Federal employee.

    Example:

    These personnel include those whose job titles are: Special United States Attorneys, Special Deputy United States Marshals, and other persons appointed under the Intergovernmental Personnel Act. As such, state and local personnel formally appointed as Federal employees under these provisions would be permissible recipients of tax information under IRC §6103(i). As Federal employees, they are subject to the penalty provisions of IRC §7213, IRC §7213A, IRC §7431, and 18 USC 1905. See IRM 11.3.22.12.1.2(8). Narcotics deputations pursuant to 21 USC 878 are not qualifying appointments.

  21. When state and local personnel are formally appointed, they will be advised in writing of disclosure restrictions and the penalties for unauthorized disclosures and inspections. See IRM Exhibit 9.3.1-2, Statement Regarding Use and Disclosure of Federal Tax Information By State or Local Government Employee Appointed to Assist A Federal Grand Jury Investigation.

  22. State and local personnel are prohibited from using or disclosing the data for state or local law enforcement purposes.

  23. After clearance action, necessary coordination with non-liaison offices, and screening of returns and files have been completed, the liaison Disclosure Office will usually prepare a transmittal letter for the signature of the Disclosure Manager. IRM Exhibit 11.3.28-5 shows examples of wording that may be used to forward information to an authorized requester. Some offices may have procedures in place for the authorizing official (usually the Disclosure Manager) to approve the disclosures separately from the transmittal process. IRM Exhibit 11.3.28-3 contains a sample memo that may be used to obtain the Disclosure Manager’s authorization. This is acceptable as long as the written approval record is maintained with the case. This process usually applies to Disclosure PODs remote from the Disclosure Manager’s POD.

  24. Once the initial response authorized by the official designated by Delegation Order 11-2 is sent to the requester, the Disclosure Office assigned to work the court order may make subsequent transmittals of information.

    Note:

    If necessary, consider providing the requester with information on a piecemeal basis rather than waiting until a complete response can be made. This provides better customer service.

  25. If the package being forwarded for clearance or authorization in accordance with local procedure contains a copy of a sealed Order, the use of Document 6441, This Document Requires Protection, as the cover sheet is recommended.

  26. Form 8453, U.S. Individual Income Tax Declaration for an IRS e-file Return, contains the signature for an electronically filed return that is not signed using a self-selected PIN. Form 8453 is an integral part of an electronically filed return that may be submitted to the court, since the return is incomplete without the signature. A print-out of the return can be obtained by using command code TRPRT, and certified as a "computer print-out of the return." When the Form 8453 is not available advise requesters accordingly in the transmittal letter and tell them that a certified copy of a computer print-out is being furnished instead. A certified copy of the return, including Form 8453, can be sent to the requester once the 8453 is obtained. Responses should not be delayed waiting for the 8453 when it is not available timely. Disclosure employees assigned to work ex parte court orders may opt to contact the United States Attorney (or other authorized person) to determine whether or not there is a need for the Form 8453. After verification with the authorized contact at the United States Attorney's Office that Form 8453 is not required, then further action to obtain this form is unnecessary. If it is later determined that the electronically filed return needs to be certified, attempt to retrieve the 8453 at that time. Requesters should also be notified when a PIN was used to file the return electronically and no signature document exists. This may be done with the use of appropriate wording on the certification of the return.

  27. The existence of a transaction code on a transcript for a Substitute For Return (SFR) doesn't mean an actual SFR was prepared. See IRM 11.3.6 for details on certifying SFRs and lack of records.

  28. Once a related statute call is made in a Bank Secrecy Act or money laundering investigation, investigation is considered as a tax administration activity, even though the violation is not a Title 26 violation. An ex parte court order applies only to enforcement of Federal criminal statutes not involving tax administration. Therefore, it is not necessary for Criminal Investigation to obtain an ex parte order for itself on related statute cases as long as IRC §6103(h) procedures have been followed. In a multiagency investigation/grand jury involving other nontax charges such as bank fraud, medicare fraud, and money laundering (with no substantive tax charges), an ex parte court order is required if the return/tax information will be used for the nontax charges, even though the IRS representative is working on a related statute case. If a related statute call is not made, IRS special agents must obtain an ex parte order prior to accessing returns and return information for the non-tax (e.g., money laundering) charges they are investigating.

  29. The use of information contained in a sealed IRC §6103(i)(1), IRC §6103(i)(5), or IRC §6103(i)(7)(C) order to initiate a tax investigation depends on the instructions in the application. Generally, the sealed document will indicate how long and to what extent the information is to remain sealed. If the instructions impose no disclosure constraints, the IRS may use pertinent information to initiate a tax investigation. In any such case, contact Area Counsel for advice on whether the instructions in the application limit the IRS's use of the information.

11.3.28.5.1  (08-25-2009)
Disclosure of Currency Transaction Report Information

  1. Currency Transaction Reports (CTRs) are Title 31 information. The Disclosure function has been authorized by the Financial Crimes Enforcement Network (FinCEN) to release this information pursuant to the Bank Secrecy Act (BSA) Re-Dissemination Guidelines.

  2. Certain requirements must be met in order to release BSA data in response to an ex parte court order. They are:

    1. The ex parte court order must anticipate that the BSA data is being sought and/or will be released.

      1. If the actual BSA returns are to be released, the ex parte court order should contain language such as "and currency transaction reports" or "including Bank Secrecy Act data." If the order anticipates that the BSA reports should be provided, data should be obtained via the Currency and Banking Retrieval System or by calling the Detroit Disclosure Office to obtain the reports from the Detroit Computing Center.

      2. For CTR data that is on an Information Returns Master File (IRMF) transcript, the order does not have to specifically require the release of BSA data. There must, however, be an indication, either by language in the order or by agreement between the Disclosure Office and the U.S. Attorney's Office that the IRMF transcript will be provided in the response to the order. Preferably, the order should contain language such as "including information returns" or "including Information Returns Master File data." If the order does not contain language of this nature but while acknowledging receipt of the order and determining the needs of the USA/AUSA, there is agreement that IRMF data will be provided, then BSA data that is on the IRMF transcript may be released. This discussion must be documented in the E-DIMS case history.

      3. Providing IRMF transcripts may be a routine part of a Disclosure Office's response to ex parte court orders and, thus, they are expected by the U.S. Attorney's Office. In this case, the case file must contain a note documenting this practice. If receipt of the IRMF data is anticipated in response to the court order, BSA information on the IRMF transcript may be released. If, however, the U.S. Attorney's office indicates that they need only returns, and not IRMF transcripts, in response to the order and the order does not include language indicating that BSA information is also sought, do not provide any BSA data.

    2. When BSA data is released, include the BSA Warning Statement, contained in Appendix II of the Re-Dissemination Guidelines, in the response to the U.S. Attorney. The statement may be included in the body of the response letter or enclosed with the response. IRM Exhibit 11.3.28-7 (slightly modified from the Re-Dissemination Guidelines to better conform to the ex parte process) shows a copy of this warning statement. The statement is also posted (verbatim from the Re-Dissemination Guidelines) on the Internet Disclosure page.

    3. A monthly report of all disclosures of BSA data in response to ex parte court orders must be submitted to the Disclosure Management and Program Assistant, Charlene Murray, 400 North Eighth Street, Richmond, VA 23219-4838. To accomplish this reporting requirement, a format has been developed that captures the data FinCEN requires in the report. IRM Exhibit 11.3.28-8 shows a copy of the format (with an example of its use). It is also posted on the Internet Disclosure page.

      Note:

      See IRM 11.3.13.7.6, Freedom of Information Act, Title 31 Reports - CTRs, CMIRs, FBARs, and SARs, for additional information about Title 31 Reports.

11.3.28.5.2  (08-25-2009)
Redisclosure Rules for US Attorneys

  1. The regulations at 26 CFR 6103(i)-1(b)(i) permit the U.S. Attorney to disclose return information obtained under IRC §6103(i)(1) to private contractors to provide special expertise to the investigation. Their services must meet the special knowledge or technical skills requirement and disclosures are allowed only if the activity cannot otherwise be properly accomplished without making the disclosures.

    Note:

    This provision cannot be used to circumvent the rules regarding disclosures to state and local law enforcement personnel, or as general authority for "contracting out." General accounting or law enforcement skills that should be available to the Government would not meet the special requirement. The intent of this provision is not to provide a mechanism to overcome resource problems that the Government should address through normal channels. The intent is to provide a way to get special help where needed. For example, accounting skills/analysis applicable to a specific industry or methodology of commerce could meet the special test while general accounting skills would not. Although it is impossible to cover every possible situation, it is unlikely that state and local law enforcement personnel possess the type of special skills necessary to fall under this provision. However, retired Federal law enforcement personnel with specialized skills and/or knowledge in pursuing complicated financial crimes, such as money laundering, can be hired as "rehired annuitants" or as employees which will allow access to tax information.

11.3.28.6  (08-01-2005)
Disclosure of Return Information Other Than Taxpayer Return Information

  1. A request under IRC §6103(i)(2) must be in writing and signed (approved) by the head of the Federal agency or the Inspector General of the agency, or in the case of the Department of Justice, the Attorney General, the Deputy Attorney General, the Associate Attorney General, an Assistant Attorney General, any U.S. Attorney, any special prosecutor appointed under 28 USC 593, any attorney in charge of an organized crime strike force, the Director, Federal Bureau of Investigation, or the Administrator of the Drug Enforcement Administration.

    Note:

    The approving official does not need to actually sign the request as long as the request makes a declarative statement that the delegated IRC §6103(i)(2) official has actually approved the specific request. The authority to approve an IRC §6103(i)(2) request cannot be redelegated.

  2. If possible, the requester should provide advance notice of his/her intent to make an IRC §6103(i)(2) request. The actions to be taken are the same as for ex parte court orders.

  3. The office responsible for the records will segregate the other than taxpayer return information from the returns and taxpayer return information. See IRM 11.3.28.5(16) for additional information that must be segregated.

  4. Disclose the name and address of the taxpayer under IRC §6103(i)(2) only if other than taxpayer return information is also requested and disclosed. Requests for addresses only cannot be honored because IRC §6103(i)(2) requires that the requester provide an address.

  5. Transmit the requested information after approval by the designated official per Delegation Order 11-2. See IRM Exhibit 11.3.28-4 for an example of a memo that may be used to obtain the necessary approval.

  6. Disclosure of related material subsequently developed for the years authorized may be made on a continuing basis even though the original IRC §6103(i)(2) letter might not include a request for continued disclosures. Such disclosures may be made only if the requester indicates an interest in or need for this information subsequent to the initial disclosure. The information disclosed may be discussed as often as necessary.

  7. IRM Exhibit 11.3.28-5 contains examples of wording to use when transmitting data.

11.3.28.7  (08-01-2005)
IRS Initiated Disclosures of Return Information Concerning Nontax Criminal Violations

  1. While performing their official duties, IRS employees may obtain information indicating that nontax criminal violations may have occurred, or they may witness criminal acts that are under the jurisdiction of another Federal agency. Such information or observations may be return information as defined in IRC §6103(b).

  2. IRC §6103(i)(3)(A) provides for disclosure in writing of other than taxpayer return information that may constitute evidence of a violation of nontax Federal criminal statutes.

  3. Information may be disclosed to the extent necessary to tell the head of the Federal agency having enforcement responsibility over the Federal statutes thought to be violated.

  4. Information will not be disclosed if disclosure would identify a confidential informant or seriously impair a civil or criminal tax investigation.

  5. Information disclosed pursuant to IRC §6103(i)(3)(A) need only be such that it may constitute evidence of a nontax Federal criminal violation.

  6. Information that merely indicates a violation may have occurred is adequate to warrant referral to the appropriate Federal agency. The information must sufficiently identify the specific criminal act or event to which it relates.

  7. For purposes of IRC §6103(i)(3)(A), when return information (other than taxpayer return information) that may constitute evidence of a violation of nontax Federal criminal laws is disclosed, the identity (name, address and SSN) of the taxpayer may also be disclosed.

  8. If a return or taxpayer return information contains the evidence of the violation, the IRS may not initiate the disclosure.

    Example:

    If the "other income" line on a return shows drug proceeds of $400,000, a disclosure may not be initiated, since this is return information.

  9. IRC §6103(i)(3)(B)(i) provides for the disclosure of return information, including taxpayer return information, to the extent necessary to advise appropriate officers or employees of any Federal or State law enforcement agency of the imminent danger of death or physical injury to any individual. The source of information detailing the threat of imminent harm is irrelevant. IRS makes its own determination whether an emergency situation exists. These disclosures are limited to Federal or State law enforcement agencies and cannot be made to local law enforcement agencies such as county or city police departments.

  10. Return information, including taxpayer return information, may be disclosed to appropriate officers or employees of any Federal law enforcement agency under IRC §6103(i)(3)(B)(ii) in circumstances involving imminent flight of any individual from Federal prosecution.

  11. Delegation Order 11-2 names those authorized to disclose or authorize disclosures under IRC §6103(i)(3).

  12. IRM 11.3.34, Disclosure for Nontax Criminal Violations, provides instructions for instances when IRS employees receive nontax information about a possible nontax violation of Federal, State or local criminal laws.

11.3.28.8  (08-01-2005)
Disclosures of Return Information (Other than Taxpayer Return Information) Concerning Nontax Criminal Violations

  1. When an employee discovers information that may include evidence of a potential nontax Federal criminal violation outside the IRS's jurisdiction, the employee will report the information by memorandum through functional channels to the appropriate Disclosure Office.

  2. Headquarters employees will send reports of potential nontax Federal criminal violations through channels to the Director, Office of Governmental Liaison and Disclosure.

  3. The memorandum should contain the following information about the violation:

    1. Name, social security number, address, and any aliases, of subject.

    2. Subject's business or occupation, if known.

    3. Summary of the facts and circumstances surrounding the nontax Federal criminal violation.

    4. U.S. Code sections potentially violated, if known.

    5. Specific source of the information, (e.g. 3rd party, taxpayer, taxpayer's representative, taxpayer's return), and how the information was obtained.

    6. The tax years where the information applies; e.g. the year(s) where an examination or criminal activity took place. If unknown, indicate that in the memorandum.

      Note:

      This information will be used to account for any authorized disclosures on Form 5466-B, Multiple Record of Disclosure.

    7. The agency that would have an interest in this violation, e.g. U.S. Attorney (indicate Judicial District), other agency (specify)).

    8. System of Records where information was obtained.

    9. Determination whether disclosure would identify a confidential informant or seriously impair a civil or criminal tax investigation.

  4. The Disclosure Office will review the information to ensure it qualifies for referral under IRC §6103(i)(3)(A).

    Note:

    IRM Exhibit 11.3.28-6 may be used as a guide to analyze the information provided for an IRC §6103(i)(3)(A) referral.

  5. The Director, Office of Governmental Liaison and Disclosure, will review all referral memorandums submitted by Headquarters personnel to ensure that all relevant information has been reported.

  6. A letter will be prepared detailing the information to be disclosed. The referring office will forward the letter to the appropriate Federal agency.

  7. Taxpayer identity information (i.e., name, address and social security number) may not be disclosed under IRC §6103(i)(3)(A) unless return information (other than taxpayer return information) is also disclosed.

11.3.28.9  (08-25-2009)
Disclosure in Emergency Situations Pursuant to IRC §6103(i)(3)(B)

  1. The Disclosure Manager or other IRS employee having IRC §6103(i)(3)(B)(i) authority should be informed in situations involving the imminent danger of death or physical injury to any individual.

  2. The Disclosure Manager or receiving office will contact the authorized IRS official (see Delegation Order 11-2) for consultation and disclosure authorization, as necessary.

    Note:

    In situations involving imminent danger of death or physical injury, special agents are the only non-supervisors having the authority to make an immediate determination and subsequent disclosure.

  3. When disclosure is authorized, the Disclosure Manager or other function may provide the information by telephone to the appropriate officer or employee of the Federal or State law enforcement agency that could take action on the imminent situation.

    Note:

    These disclosures cannot be made to local law enforcement agencies nor to assistance agencies such as suicide prevention bureaus.

    Note:

    When appropriate, these disclosures may also be made to other IRS functions. For example, some PDT information may be disclosed to IRS employees conducting nontax investigations (e.g. Title 31) when disclosure is necessary to protect individual safety. Even though such disclosures are internal, the accounting requirements of IRC §6103(p)(3)(A) and safeguarding requirements of IRC §6103(p)(4) l still apply. See IRM 11.3.37, Recordkeeping and Accounting for Disclosures, and IRM 11.3.36, Safeguard Review Program. Safeguarding questions should be directed to the Office of Safeguards.

  4. The U.S. Secret Service is responsible for protecting the President and certain other Government officials and public figures including the:

    • President's immediate family

    • President-elect

    • Vice President or other officer next in line for succession to the Presidency

    • Former Presidents

    • Wife, widow, and minor children of former Presidents

    • Presidential and Vice-Presidential candidates

    • Visiting heads of foreign states or foreign governments

  5. When a taxpayer makes a threat against any of these individuals during an official contact (e.g., during the preparation of a tax return in an IRS office, or by written statements contained on the tax return), the Disclosure Manager, special agent or other authorized person will immediately disclose the threat, together with the name and address of the taxpayer by telephone to the local Secret Service field office.

  6. IRC §6103(i)(3)(B)(ii) permits the disclosure of return information to the appropriate officers or employees of any Federal law enforcement agency in situations involving the imminent flight of an individual from Federal prosecution. See Delegation Order 11-2 for those having delegated authority to make this type of disclosure.

    Note:

    Special agents do not have the authority to make a disclosure in imminent flight situations. However, Special Agents in Charge (SACs) may make these disclosures.

  7. The referring office must maintain thorough documentation to provide a review trail for each disclosure under IRC §6103(i)(3)(B). The accounting requirements of IRC §6103 (p)(3) apply to these disclosures. See IRM 11.3.37, Recordkeeping and Accounting for Disclosures.

  8. IRC §6103(i)(3)(B) permits disclosure of both taxpayer return information and return information (other than taxpayer return information). The source of the information concerning the threat is irrelevant. IRS must decide on its own whether an emergency situation exists.

  9. Disclosures under IRC §6103(i)(3)(B) are not subject to the confidential informant and tax impairment determinations required under IRC §6103(i)(6). However, it is IRS policy never to release the identity of confidential informants.

11.3.28.9.1  (08-01-2005)
Suicide Threats

  1. By itself, a suicide threat to IRS is not considered tax information and therefore is not covered by the rules limiting tax disclosures. IRC §6103 limitations on disclosure do not apply to location information provided directly by the taxpayer while making the threat or location information obtained from a public source. To verify the address or current location of the taxpayer making the threat without accessing tax return information, take the following steps:

    1. Ask the taxpayer for his/her address or location.

    2. Attempt to look up the taxpayer's location in the telephone book, on the Internet or from some other public source.

  2. If the taxpayer's location comes from one of the above sources, call 911 for assistance. Be careful not to mention the underlying reason for the taxpayer's call or the fact the call related to a tax issue.

    Note:

    It is permissible to state that the threat was made during a contact involving official business.

  3. If the taxpayer's location must be obtained by accessing tax information (e.g., through IDRS), IRS employees must follow the procedures related to disclosures under IRC §6103(i)(3)(B)(i).

    1. These disclosures can only be made to State or Federal law enforcement authorities.

    2. Only authorized IRS employees (GS-1811 agents, certain GLD HQ employees or supervisory level employees) can make the disclosure. See Delegation Order 11-2.

    3. Form 5466-B must be prepared for accounting purposes after making the disclosure. The completed Form 5466-B will be sent to the Disclosure Manager.

  4. IRM 21.1.3.12, Suicide Threats, contains step-by-step procedures for dealing with suicide threats.

11.3.28.9.2  (08-25-2009)
Antiterrorism Disclosures

  1. The IRS's effort to cooperate with the various agencies investigating terrorist actions is led by Criminal Investigation (CI). CI and Disclosure work in partnership to ensure that everything legally possible is done to assist in these investigations.

  2. When performing their official duties, employees may come across information which could relate to terrorist activities. Law enforcement agents outside the IRS may ask an employee to provide information for a terrorism-related investigation. In either case, CI should be contacted immediately.

    Caution:

    During disclosure presentations, Disclosure Managers will caution employees that they should not browse taxpayer information in order to locate information related to terrorism that might be shared.

  3. Disclosure personnel will give expedited assistance or technical guidance, when sought, to CI personnel considering disclosures under IRC §6103(i)(3)(B)(i). Terrorism related disclosures under IRC §6103(i)(3)(B)(i) should be rare and supported by compelling facts since Congress enacted specific legislation in IRC §6103(i)(3)(C) and IRC §6103(i)(7) regarding IRS interaction with terrorism and national security investigations.

    Note:

    Questions concerning IRC §6103(i)(3)(C) and IRC §6103(i)(7) issues should be directed to Governmental Liaison and Disclosure's coordinator for disclosures relating to terrorism. The coordinator is currently located in the Milwaukee, Wisconsin, Disclosure Office.

  4. Delegation Order 11-2 contains delegations of authority pertaining to IRC §6103(i)(3)(C) and IRC §6103(i)(7). The following compares processing procedures under (i)(3)(C) and (i)(7) provisions to those of other IRC §6103(i) sections:

    1. IRC §6103(i)(3)(C) disclosures will be processed like IRC §6103(i)(3)(A) disclosures;

    2. IRC §6103(i)(7)(A) and IRC §6103(i)(7)(B) disclosures will be handled like IRC §6103(i)(2) requests;

    3. IRC §6103(i)(7)(C) ex parte orders will be handled like §6103(i)(1) ex parte orders;

    4. GLD, in close coordination with CI, will prepare and obtain approval for ex parte applications under IRC §6103(i)(7)(D).

11.3.28.10  (08-01-2005)
Use of Returns and Return Information in Administrative and Judicial Proceedings

  1. Subject to the conditions prescribed in IRC §6103(i)(4), returns and return information, including taxpayer return information, disclosed under IRC §6103(i)(1), IRC §6103(i)(2), IRC §6103(i)(3)(A) or IRC §6103(i)(3)(C), and IRC §6103(i)(7) may be disclosed in an administrative or judicial proceeding (including the sentencing phase) pertaining to the enforcement of a specifically designated nontax Federal criminal statute or related civil forfeiture where the U.S. or a Federal agency is a party.

    1. Note:

      IRC §6103(i)(4) permits the information to be used for 18 USC 981 or 982 civil or criminal forfeitures related to the nontax violations of 18 USC 1956 or 1957, or 31 USC 5313(a) or 5324(a).

  2. In the case of returns and taxpayer return information obtained under IRC §6103(i)(1) and IRC §6103(i)(7)(C), disclosure is conditioned upon the court's determination that the return or taxpayer return information is probative of a matter in issue relevant to establishing the commission of a crime or guilt or liability of a party, or to the extent required by order of the court pursuant to Title 18, U.S. Code, or rule 16 of the Federal Rules of Criminal Procedure. The judge's determination may be oral or in writing, consistent with that court's practice. The IRC §6103(i)(4) determination cannot be made as part of the ex parte court order.

    Note:

    See sample language in IRM Exhibit 11.3.28-5 pertaining to IRC §6103(i)(4)(i) requirements.

  3. Return information that is other than taxpayer, return information does not require a court determination described in IRM 11.3.28.10(2) prior to being introduced into a court proceeding.

  4. No returns or return information, including taxpayer return information, may be admitted into evidence in these proceedings if the IRS determines that introducing the information into evidence would identify a confidential informant or seriously impair a civil or criminal tax investigation.

  5. The U.S. Attorney or other Federal official should notify the IRS in all cases where the United States intends to seek to introduce returns or return information, including taxpayer return information, into evidence.

  6. IRM Exhibit 11.3.28-5 contains sample language pertaining to IRC §6103(i)(4).

11.3.28.11  (08-01-2005)
Notifying Individuals That Their Records Were Made Available Under a Compulsory Legal Process

  1. Subsection (e)(8) of the Privacy Act requires that agencies ". . .make reasonable efforts to serve notice on an individual when any record on such individual is made available to any person under compulsory legal process when such process becomes a matter of public record."

  2. If disclosure is made in response to an ex parte court order pursuant to IRC §6103(i)(1), IRC §6103(i)(5), or IRC §6103(i)(7)(C), notice will not be given until the ex parte court order becomes a matter of public record.

  3. If the ex parte court order does not indicate whether it is a matter of public record, the issuing authority will be asked to advise the IRS if the matter becomes public so that the required notice may be issued. IRM Exhibit 11.3.28-5 contains sample language.

  4. The notice will be mailed to the individual's last known address. One copy of the notice will be maintained in the disclosure file and one copy should be associated with the record disclosed, if practical.

  5. This procedure will be carried out by the Disclosure Manager or under his/her direction.

  6. See IRM 11.3.16.5 and IRM 11.3.35.17, Notifying Individuals That Their Records Were Made Available to a Person Under Compulsory Legal Process, and IRM 11.3.35.16, Accounting Requirements, for a full explanation of requirements and procedures.

11.3.28.12  (08-01-2005)
Accounting for Disclosures

  1. Accountings for disclosures of tax returns and return information must be made in accordance with IRM 11.3.37.

  2. A notation must be placed on E-DIMS indicating the completion of Form 5466-B, or accounting for disclosures by some other means. A copy of Form 5466-B, or other accounting document, may also be placed in the file.

Exhibit 11.3.28-1  (08-01-2005)
Processing IRC §6103(i)(1), (i)(5), and (i)(7)(C) Requests:

  • AUSA DETERMINES NEED FOR TAX INFORMATION

  • ADVANCE NOTICE/COURT ORDER RECEIVED

  • LOG ON E-DIMS AND ASSIGN CASE

  • ANALYZE ORDER

  • ACKNOWLEDGE RECEIPT OF COURT ORDER

  • DETERMINE TIMEFRAMES AND NEEDS

  • DOCUMENT FILE

  • FORWARD FOR DISCLOSURE MANAGER APPROVAL (IF MEMO USED)

  • SECURE CLEARANCES (IF NECESSARY)

  • CONDUCT RESEARCH

  • SECURE RETURNS AND RETURN INFORMATION

  • ANALYZE RETURN INFORMATION

  • COPY AND CERTIFY (IF NECESSARY)

  • PREPARE INITIAL RESPONSE LETTER FOR DISCLOSURE MANAGER SIGNATURE (IF MEMO PROCESS NOT USED)

  • PREPARE AND MAIL RESPONSE(S)

  • ACCOUNT FOR DISCLOSURES

  • CLOSE CASE ON E-DIMS

Exhibit 11.3.28-2  (08-01-2005)
Processing IRC §6103(i)(2) Requests:

  • AUSA DETERMINES NEED FOR RETURN INFORMATION (OTHER THAN TAXPAYER RETURN INFORMATION)

  • ADVANCE NOTICE/REQUEST RECEIVED

  • LOG ON E-DIMS AND ASSIGN CASE

  • ANALYZE REQUEST

  • ACKNOWLEDGE RECEIPT

  • DETERMINE TIMEFRAMES

  • DOCUMENT FILE

  • FORWARD FOR DISCLOSURE MANAGER APPROVAL (IF MEMO USED)

  • CONDUCT RESEARCH

  • SECURE CLEARANCES (IF NECESSARY)

  • SECURE RETURN INFORMATION (OTHER THAN TAXPAYER RETURN INFORMATION)

  • ANALYZE DATA

  • COPY AND CERTIFY (IF NECESSARY)

  • PREPARE (INITIAL) RESPONSE LETTER FOR DISCLOSURE MANAGER SIGNATURE (IF MEMO PROCESS NOT USED)

  • PREPARE AND MAIL RESPONSE

  • ACCOUNT FOR DISCLOSURES

  • CLOSE CASE ON E-DIMS

Exhibit 11.3.28-3  (08-01-2005)
Memorandum to Obtain Disclosure Manager Authorization to Make IRC §6103(i)(1) and (i)(5) Disclosures

DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
WASHINGTON, D.C. 20224
(Month Day, Year)
MEMORANDUM FOR XXXXXXXXXX
                                    DISCLOSURE MANAGER
                                    XXX DISCLOSURE OFFICE
FROM:                         XXXXXXXXXXX
                                    DISCLOSURE SPECIALIST
                                    XXX DISCLOSURE OFFICE
SUBJECT:                  Ex Parte Court Order
                                     Case Number: XX-XXXX-XXXXX
We have received an ex parte court order from the U.S. Attorney for the XXXXX District of XXXXX. We have determined that the Order is statutorily compliant and can be processed. The Order was obtained pursuant to IRC §6103(i)(1) and requires the disclosure of returns and return information pertaining to the taxpayer listed below:
Taxpayer                                                    TIN          Tax Periods           
     
Please sign the Authorization below if you approve the disclosure of the requested returns and return information. If you wish to receive a copy of the Order, please call.
••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••
Authorization to Disclose Returns
and Return Information In Response to Ex Parte Court Orders
In accordance with the authority delegated to me in Delegation Order 11-2, I hereby authorize the disclosure of the returns and return information requested in the Order, upon determination that such disclosure will not seriously impair a civil or criminal tax investigation or identify a confidential informant.
Approval:                                                                       Date:                                              
                    Disclosure Manager, XXXX
(Please return to the XXXXXXXXX Disclosure Office upon approval - FAX # (XXX) XXX-XXXX)

Exhibit 11.3.28-4  (08-01-2005)
Memorandum to Obtain Disclosure Manager Authorization to Make IRC §6103(i)(2) Disclosures



DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
WASHINGTON, D.C. 20224
(Month Day, Year)
MEMORANDUM FOR XXXXXXXXXX
                                    DISCLOSURE MANAGER
                                    XXX DISCLOSURE OFFICE
FROM:                         XXXXXXXXXXX
                                    DISCLOSURE SPECIALIST
                                    XXX DISCLOSURE OFFICE
SUBJECT:                  Ex Parte Court Order
                                    Case Number: XX-XXXX-XXXXX
We have received a request pursuant to IRC §6103(i)(2) from the U.S. Attorney for the XXXXX District of XXXXX. We have determined that the letter is statutorily compliant and can be processed. It requires the disclosure of return information, other than taxpayer return information, pertaining to the taxpayer listed below:
Taxpayer                                                    TIN           Tax Periods       
     
Please sign the Authorization below if you approve the disclosure of the requested return information, other than taxpayer return information. If you wish to receive a copy of the letter, please call.
••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••
Authorization to Disclose Return Information,
Other Than Taxpayer Return Information, In Response to an IRC §6103(i)(2) Request
In accordance with the authority delegated to me in Delegation Order 11-2, I hereby authorize the disclosure of the return information, other than taxpayer return information, requested in the letter, upon determination that such disclosure will not seriously impair a civil or criminal tax investigation or identify a confidential informant.
Approval:                                                                       Date:                                      
                    Disclosure Manager, XXXX
(Please return to the XXXXXXXXX Disclosure Office upon approval - FAX # (XXX) XXX-XXXX)

Exhibit 11.3.28-5  (08-25-2009)
Sample Language

A. Sample Language for §6103(i)(1) and (i)(5) Disclosures
  We have received an Order from the United States District Court, District of XXX, dated XXXX, xxxx. Pursuant to IRC §6103(i)(1) (or IRC §6103(i)(5), as appropriate), I authorize the disclosure of available return(s) and return information concerning XXX for tax years XXX (or, I have been authorized to disclose available returns and return information concerning XXX for tax years XXX).

This information is being furnished to the Department of Justice officers or Federal employees named in the Order with the understanding that it will be used strictly in accordance with, and subject to the limitations of, the disclosure provisions of IRC §6103. Personnel having access to this information must be made aware of the penalty provisions of IRC §7213, IRC §7213A, and IRC §7431 and 18 USC 1905, regarding the unauthorized inspection or disclosure of confidential information.

In order for the IRS to comply with the requirements of the Privacy Act (5 USC 552a), please advise our Disclosure Manager, at XXX, if the Order becomes a matter of public record.

Note: It is suggested that a description of the requested/disclosed documents be identified in the body of this letter or by way of an attachment to the letter.
 
 
 
 
 
B. Sample Language Regarding State and Local Personnel  
  Please note that State and local personnel may be considered Federal employees for disclosure purposes as long as these employees are formally appointed, (rather than detailed), are assisting in a Federal investigation, and are supervised by a Federal employee. As such, State and local personnel formally appointed as Federal employees under these provisions would be permissible recipients of tax information under IRC §6103(i) and subject to the same penalty provisions of IRC §7213, IRC §7213A, and IRC §7431, and section 1905 of Title 18, United States Code.  
C. Sample Language for IRC §6103(i)(2) Disclosures  
  We received your request dated XXXX, xxxx. Pursuant to IRC §6103(i)(2), I authorize the disclosure of available return information, other than taxpayer return information, concerning XXX for tax years XXX (or, I have been authorized to disclose available return information, other than taxpayer return information, concerning XXX for tax years XXX).
 
This information will be furnished to the officers and employees named in the letter with the understanding that it will be used strictly in accordance with, and subject to the limitations of, the disclosure provisions of IRC §6103. Personnel having access to this information must be made aware of the penalty provisions of IRC §7213, IRC §7213A and IRC §7431 and section 1905 of Title 18, United States Code, regarding the unauthorized inspection or disclosure of return information.
 
D. Sample Language for Compulsory Notification Required by the Privacy Act  
  Subsection (e)(8) of the Privacy Act requires that agencies "...make reasonable efforts to serve notice on an individual when any record of such individual is made available to any person under compulsory legal process when such process becomes a matter of public record."

This is your legal notice that your xxxx tax return was provided to XXX.
 
E. Sample Language for IRC §6103(i)(4) Notification  
  Prior to the disclosure of the enclosed information in any judicial or administrative proceeding pertaining to the enforcement of a specifically designated Federal criminal statute or related civil forfeiture (not involving tax administration) to which the United States or a Federal agency is a party, the court must make a determination pursuant to IRC §6103(i)(4) that the information is probative of a matter in issue relevant in establishing the commission of a crime or the guilt or liability of a party.  
     

Exhibit 11.3.28-6  (08-25-2009)
Nontax Federal Criminal Referral Check List IRC §6103(i)(3)(A)

This checklist may be used as a guide to analyze the information provided for an IRC §6103(i)(3)(A) referral. Complete all fields as accurately and with as much detail as possible, as the information will be used for recordkeeping, disclosure accounting, and other processing purposes.
PART I. Taxpayer Identification
The subject of the (i)(3)(A) criminal referral may or may not be the taxpayer about whose tax affairs the IRS was primarily interested. In all cases, it is necessary to make this distinction so that it can be determined whether information relevant to the referral is other than taxpayer return information. Please provide the following:
  A. Subject of underlying tax case:*
             
  B. Identification of return information for accounting:
  System of Records   ADP Source Code   Tax Years
           
           
           
PART II. Subject of (i)(3)(A) referral:*
  A. Individual's name:                                                                               
  B. Social Security Number:                                                                  

[*Multiple subjects should be listed individually (with all of the above identity information) on a continuation page.]
PART III. Questionnaire (Please answer the following questions as fully as possible.)
  A. What is/was the nature of the underlying tax case? (e.g., examination, TDA, CI investigation)
B. What taxpayer is the central figure in the underlying tax case?
C. What nontax Federal criminal statutes were potentially violated?
D. Identify any third party witnesses and describe:
  1. Their relationships to the subject of this referral and to the taxpayer.
  2. The nature of the information provided by each.
  3. The specific criminal act(s) / event(s) to which their information relates.
E. Are any witnesses confidential informants? If so, who?
  F. Will any confidential informants be identifiable by the information they provided? (If yes, specify who and how.)
  G. What, if any, information was provided by, or on behalf of, the taxpayer whose information is involved in this referral?
  H. Has information provided by the taxpayer been independently verified? (If so, specify the information and the method of verification.)
  I. If all return information was removed, would the remaining information still support a charge of criminal conduct to allow a referral under IRM 11.3.34, Disclosure for Nontax Criminal Violations?
  J. Are there any special circumstances involved (e.g., will referral impair Federal tax administration)?

Exhibit 11.3.28-7  (08-01-2005)
BSA Warning Statement

WARNING STATEMENT
RE: BSA REPORT INFORMATION
DISCLOSED TO OTHER AGENCIES
The Currency Transaction Report information on the enclosed Information Returns Master File transcript** was collected and disseminated under provisions of the Bank Secrecy Act (the BSA) and U.S. Department of the Treasury regulations implementing the BSA. See 31 U.S.C. 5311, et seq.; 31 CFR Part 103. The information is sensitive in nature and is to be treated accordingly. The information may be used only for a purpose related to a criminal, tax, or regulatory investigation or proceeding, or in the conduct of intelligence or counterintelligence activities to protect against international terrorism. See 31 U.S.C. The information cannot be further released, disseminated, disclosed, or transmitted without prior approval of the Secretary of the Treasury or his authorized delegate. Suspicious activity reports filed under the BSA must be treated with particular care given they contain unsubstantiated allegations of possible criminal activity, akin to confidential informant tips. Such reports, or the fact that they have been filed, may not be disclosed by a government employee to any person involved in the transaction, "other than is necessary to fulfill the official duties of such officer or employee." 31 U.S.C. 5318(g)(2)(ii). Unauthorized release of information collected under the BSA may result in criminal or civil sanctions.
**If copies of the actual Currency Transaction Reports are being furnished, the BSA Warning Statement should be edited to read, "The enclosed Currency Transaction Reports were collected. . ."

Exhibit 11.3.28-8  (08-01-2005)
Example of Monthly Report of Disclosures of BSA Data in Response to Ex Parte Court Orders

LOG OF BSA/FORMS 8300 DOCUMENTS/INFORMATION
DISSEMINATED TO FEDERAL, STATE, LOCAL AND FOREIGN AGENCIES
Year of BSA Data No. of BSA Docs Type of BSA Docs Rtn (R) or Tran-script (T) Agency Recv. BSA Data Name of Agency Official Agency Tel. No. E-DIMS Case No. Dscl. Ofc. Case Worker
EXAMPLES:
2001 3 CTR R US Atty. Ofc. - Mid. Dist., FL AUSA Oaktree 000-111-2222 50-2004-XXXXX Elm
2001 2 CTR T US Atty. Ofc. - Mid. Dist., FL AUSA Oaktree 000-111-2222 50-2004-XXXXX Elm

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