11.3.28  Disclosure to Federal Agencies for Administration of Non-Tax Criminal Laws

Manual Transmittal

August 05, 2014

Purpose

(1) This transmits revised text for 11.3.28, Disclosure to Federal Agencies for Administration of Non-Tax Criminal Laws.

Material Changes

(1) Editorial changes have been made throughout to update IRM/statute/organizational references and to make the text easier to follow.

(2) Web site addresses updated

(3) All references to Liaison and Non-Liaison Disclosure Office definitions and responsibilities have been removed. AFOIA enables all requests to be processed wherever assigned instead of geographically aligned.

(4) IRM 11.3.28.1(1) corrected to reflect correct Exhibit number for Delegation Order 11-2 located in IRM 1.2.49.

(5) IRM 11.3.28.1(8) edited to maintain overview quality of information. Edited information appears elsewhere in this chapter. Reference to IRM 11.3.28.10 was corrected to 11.3.28.9 as it appears in this revision.

(6) IRM 11.3.28.1(10)g) reference to IRM 11.3.28.10 was corrected to 11.3.28.9 as it appears in this revision.

(7) Deleted "information" from description title of Taxpayer Entity in IRM 11.3.28.2(2).

(8) Added Note below 11.3.28.2(8) that the local Disclosure Offices retain the responsibility to maintain a relationship with their United States Attorney's Office. All subsequent IRM references below that have been renumbered accordingly.

(9) Added 11.3.28.2(9) and (10) containing the definitions of international and domestic terrorism, respectively. All subsequent IRM references below that have been renumbered accordingly.

(10) Moved 11.3.28.2.2(12) to 11.3.28.2.1(7) to reflect the agreement to treat tax information received from a state tax agency as taxpayer return information. All subsequent IRM references below that have been renumbered accordingly.

(11) Added IRM 11.3.28.2.2(2) to list taxpayer identity information as other than taxpayer return information within the confines of IRC § 6103(i) provisions. All subsequent IRM references below that have been renumbered accordingly.

(12) IRM 11.3.28.3 revised to incorporate instructions contained in PGLD-11-0114-0001, Interim Guidance on Ex Parte Court Orders (IRC §6103(i)(1)) – Reissued, dated 01/02/2014, formerly PGLD-11-0913-0005, formerly PGLD-11-0712-03.

(13) IRM 11.3.28.3(3) added specific actions to be taken when an Ex Parte Court Order is received.

(14) Added reference to contacting the appropriate Federal Records Center to IRM 11.3.28.3(5) Note's Special Search instructions

(15) IRM 11.3.28.3(16) is changed to include case closing instructions. Two Notes were added that include situations permitting the charging of time to closed cases on AFOIA and the method used for certification of records. All subsequent IRM references below that have been renumbered accordingly.

(16) IRM 11.3.28.3.1 updated to include PGLD-11-0114-0002, Interim Guidance on Mutual Legal Assistance Treaty (MLAT) Cases – Reissued, dated 01/02/2014, formerly PGLD-11-1212-01. Instructions include the transfer of responsibility for processing the requests to the Headquarters FOIA Group.

(17) IRM 11.3.28.3.2 updated to advise any requests received from Main DOJ should be forwarded to the CPU for import and can be processed by any Disclosure Office. (3) deleted entirely since no specific coordination between Disclosure Offices is necessary to obtain records.

(18) IRM 11.3.28.3.2.2. updated to reflect the city and state of the new Technical Advisor for Criminal Investigation (CI).

(19) IRM 11.3.28.3.3(3) updated to remove reference to functional disclosure coordinator assistance with review of files.

(20) IRM 11.3.28.4.1(1) updated to remove reference to liaison Disclosure activity. Note added to advising of the need to begin processing the order upon advance notice from the US Attorney. Included reference to AFOIA Inventory and Document Management Procedures Guide Section 7(3)e

(21) IRM 11.3.28.4.2 (6) moved to IRM 11.3.28.4.3(2) as it related to information needed in an Ex Parte Court Order.

(22) IRM 11.3.28.5(1) revised to remove references to "liaison and non-liaison" coordination, to include taxpayer return information as information conforming to court order and to include, with the use of a spreadsheet to track documents, there is no requirement to use the Documents Requested Form in AFOIA.

(23) Note related to The Currency and Banking Retrieval System (CBRS) under IRM 11.3.28.5(1) was deleted. This system is no longer used by Criminal Investigation. All requests for this type of information are handled by FinCEN.

(24) IRM 11.3.28.5(2) updated to include guidance on securing functional clearance for records related to OPEN compliance and CI activity only.

(25) IRM 11.3.28.5(6) updated to indicate that any objections by the function to the release of documents related to an open case must be in writing and be prepared by the applicable function.

(26) IRM 11.3.28.5(10) updated to indicate Forms 3050 should only be used when returns are not filed that should have been. NOTE added advising that Forms 3050 are not used for no filing requirements and returns not required to be filed yet.

(27) IRM 11.3.28.5(12) revised to insert follow-up instructions with Special Search and FRC requirements,

(28) IRM 11.3.28.5(13) added providing guidance on court orders for FOIA case file information. All subsequent IRM references below that have been renumbered accordingly.

(29) Mandatory editing of Underreported Income DIF (UIDIF) scores added to IRM 11.3.28.5(15)g).

(30) IRM 11.3.28.5(21) updated to clarify that State and Local government personnel involved in the federal investigation are prohibited from using or disclosing data obtained through the Ex Parte process for any state or local law enforcement proceeding.

(31) IRM 11.3.28.5(26) and (27) updated to notate the changes to Form 8453.

(32) IRM 11.3.28.5(31) added to provide guidance should original tax returns and taxpayer return information be needed in the prosecution of the case.

(33) IRM 11.3.28.5.1 renamed to Disclosure of Bank Secrecy Act Records

(34) IRM 11.3.28.5.1(1) updated to advise that all requests for Bank Secrecy Act records should be submitted to FinCEN. Disclosure no longer processes requests for this information. IRM 11.3.28.5.1(2) lists the various types of BSA records available through FinCEN. Requirement for completion of BSA Log deleted.

(35) IRM 11.3.28.6 and 11.3.28.7 updated to provide clarity.

(36) Added second Note to IRM 11.2.28.6(1) addressing requests for information related to restitution.

(37) IRM 11.3.28.8 renumbered to 11.3.28.7.1 to continue IRC § 6103(i)(3)(A) instructions. Subsequent sections are renumbered accordingly.

(38) IRM 11.3.28.7.1(3)g changed reference from US Department of Justice to US Department of Homeland Security as an agency with statute compliance responsibility.

(39) IRM 11.3.28.7.1(6) updated to instruct the disclosure office to make the IRC § 6103(i)(3)(A) referral to the other federal agency and provide a copy to the employee who initiated the referral.

(40) Added an example to further explain IRM 11.3.28.7.1(7)

(41) IRM 11.3.28.7.1(8) added to advise no oral discussions or clarifications are permitted under IRC § 6103(i)(3)(A).

(42) IRM 11.3.28.8.1 updated to provide additional guidance on Suicide Threat procedures.

(43) IRM 11.3.28.8.2 updated to provide correct Headquarters contact information related to IRC §§ 6103(i)(3)(C) and 6103(i)(7)

(44) Note added to IRM 11.3.8.2(3) addressing correspondence marked "Classified," "Secret" or "Top Secret."

(45) Noted added to IRM 11.3.8.2(4) advising that Ex Parte Court Order pursuant to IRC § 6103(i)(7)(C) will be worked by field Disclosure and does not require transfer to the HQ Disclosure Analyst.

(46) Editorial changes made throughout IRM 11.3.28.9.

(47) Deleted IRM 11.3.28.9(6), which duplicated the Note under IRM 11.3.28.9(2). All subsequent IRM references below that have been renumbered accordingly.

(48) IRM 11.3.28.9(7) added to advise accountings for disclosures made under IRC § 6103(i)(4) are not required.

(49) Updated Exhibits 11.3.28–1 and 11.3.28–2.

(50) Exhibit 11.3.28-3 changed to provide example language for IRC § 6103(i)(7)(A) requests.

(51) Exhibits 11.3.28-4 through 11.3.28-6 updated with current language used in response letters and authorization memorandums.

(52) Exhibit 11.3.28-7 revised to clarify procedures and information needed to make non-tax criminal referrals.

Effect on Other Documents

This material supersedes IRM 11.3.28, Disclosure to Federal Agencies for Administration of Non-Tax Criminal Laws dated August 25, 2009.

Audience

All Operating Divisions and Functions.

Effective Date

(08-05-2014)

Related Resources

The Governmental Liaison and Disclosure intranet home page can be found at the following web address:
http://discl.web.irs.gov/Default.asp .


 
 
Edward T. Killen
Director, Governmental Liaison, Disclosure and Safeguards

11.3.28.1  (08-05-2014)
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 non-tax 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 1.2.49-1 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 in cooperation with the Department of Justice (DOJ) 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 non-tax 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 non-tax 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 non-tax 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 non-tax 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 or return information, only other than taxpayer return information.

  5. IRC § 6103(i)(3)(A) permits the Commissioner or his/her delegate to disclose in writing, return information (other than taxpayer return information) that may constitute evidence of a violation of a federal non-tax 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 re-disclose 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 or 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 or 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 the other subsections of IRC § 6103(i) to be entered into evidence in an administrative or judicial proceeding if the court determines that the tests provided by sections 6103(i)(4)(A)(i) or (i)(4)(A)(ii) have been met. See IRM 11.3.28.9 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).

  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 or 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 re-disclose 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 re-disclosure 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 or 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 re-disclose 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 11.3.28.9.

    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 international or domestic terrorism as defined in 18 USC § 2331(1) and (5).

      Note:

      See IRM 11.3.28.2(9) and (10) for definitions of international and domestic terrorism.

    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  (08-05-2014)
Definitions

  1. A return is any tax 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 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.

    Note:

    With the implementation of AFOIA, requests made under this statute will be processed in the office where assigned. But, the local Disclosure Offices will retain the responsibility for maintaining a relationship with their United States Attorney's office.

  9. International terrorism is defined by 18 USC § 2331(1) as activities that:

    1. involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the US or of any State or that would be if committed within the US;

    2. appear to be intended to intimidate or coerce a civilian population, influence the policy of a government by intimidation or coercion, or affect the conduct of a government by mass destruction, assassination, or kidnapping and

    3. occur primarily outside the territorial jurisdiction of the US, or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to intimidate or coerce or the locality in which their perpetrators operate or seek asylum.

  10. Domestic terrorism is defined by 18 USC § 2331(5) as activities that:

    1. involve acts dangerous to human life that are violations of the criminal laws of the US or any state;

    2. appear to be intended to intimidate or coerce a civilian population, influence the policy of a government by intimidation or coercion, or affect the conduct of a government by mass destruction, assassination, or kidnapping and

    3. Occur primarily within the territorial jurisdiction of the US.

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 affected 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 the sections just mentioned, 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 payer or information return filer and is both the payer'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.

  7. In accordance with the Agreement on Coordination of Tax Administration (Basic Agreement), IRS has agreed to treat information provided by a state tax agency and used in a federal tax compliance matter as taxpayer return information.

11.3.28.2.2  (08-05-2014)
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. Within the provisions of IRC § 6103(i), taxpayer identity information (name, mailing address, TIN or a combination thereof) may be considered other than taxpayer return information.

  3. 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.

  4. 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.

  5. 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.

  6. 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.

  7. 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.

  8. 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 non-tax 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.

  9. 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.)

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

  11. 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.

  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  (08-05-2014)
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 Disclosure caseworker assigned to process the order or written request will contact the requesting official, usually the Assistant United States Attorney (AUSA) named on the order and acknowledge receipt of the Ex Parte court order. Contacts are also to be made upon receipt of a written IRC § 6103(i)(2), IRC § 6103(i)(7)(A), or IRC § 6103(i)(7)(B) request. If no AUSA is specifically named in the order or written request, a verbal statement from the United States Attorney indicating the name of the AUSA assigned to the case is acceptable. The contact must be recorded in the AFOIA case history. Actions to be taken included:

    1. Acknowledge receipt of and clarify what is needed in response to the Order or written request by contacting the AUSA named, within seven working days.

    2. Inquire whether there is an imminent court date or discovery date necessitating expedite processing.

    3. Discuss alternative products with the AUSA (for example, offering a transcript in lieu of a return), and

    4. Document these actions in the AFOIA case history notes

      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.

  3. After receipt of a court order or written request, and until requests have been satisfied, the caseworker must maintain contact with the requesting official regarding the status of the order, the estimated date all actions will be completed and any other pertinent information.

    Note:

    Disclosure Managers will ensure that the actions required by IRM 11.3.28.3(2) and (3) have been taken, when reviewing cases.

  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 caseworker 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 expedite processing is needed or 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 of the Central Processing Unit (CPU) (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 or NARA Federal Records Center (FRC). If no reply is received within three days, the caseworker will notify their Disclosure Manager who should follow up with the appropriate official at the applicable site. If the Disclosure Manager is unable to resolve the problem, he/she should contact the HQ Senior Disclosure Analyst for Wage & Investment (W&I) for assistance. Special Search and FRC site information is available on the Disclosure home page of SharePoint.

  6. During the initial contact, the caseworker should advise the requester that the IRS no longer provides certified copies of returns with our initial response, but certified copies can be requested at a later date if needed for presentation in court.

    Note:

    With IRC § 6103(i)(1) orders, the requester often needs only the tax return, so expending resources by searching for and providing other documents such as audit workpapers, etc. may be unnecessary. 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 in the history notes and maintain the agreements in a permanent administrative file.

  8. The Disclosure 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 and results of search efforts.

  9. The Disclosure caseworker 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. 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 caseworker will immediately contact the requester and obtain an amended order or request, if required, 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 AFOIA case history must also contain notes concerning problems with requests and any actions taken to correct these problems.

    1. Any order or request made under IRC § 6103(i) citing only a possible Title 26 (tax) violation is considered invalid. The caseworker will contact the requesting official and advise that the Ex Parte process cannot be used for any possible tax violations, so the order is invalid. Refer the requester to IRC § 6103(h) as the correct statute if there are true tax violations being pursued.

    2. If a possible tax violation (Title 26) is cited in conjunction with other non-tax statutes, the caseworker will contact the requesting official and advise that we cannot provide any information in response to the possible tax violation. If the requesting official advises that the reference to Title 26 was in error, request that a written withdrawal of the possible tax violation on DOJ letterhead be forwarded to the caseworker. Use of fax is permitted. Document this contact in the AFOIA case history. Continue processing the request, since the information is available through the Ex Parte process for the other non-tax violations. Make no disclosure of tax information prior to the receipt of the written withdrawal. Ensure the response letter reflects the withdrawal of the possible tax violation.

    3. Title 18 USC § 1956(a)(1)(A)(ii) is one of a number of Title 18 and Title 31 code sections that have tax implications. Carefully review the order and research any code section listed that is not further described in the order to ensure that there are no tax violations included.

    Note:

    While information disclosed under IRC § 6103(i) can be used in the sentencing phase of a case (see IRM 11.3.28.9), 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 Deputy Associate Director (Deputy AD), Disclosure HQ through the HQ Senior Disclosure Analyst for the DOJ currently located in Philadelphia, PA.

  11. 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.

  12. 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.

  13. 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 caseworker 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.

  14. 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 the HQ Senior Disclosure Analyst for the DOJ for referral to the Deputy AD, Disclosure HQ. 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.

  15. 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 Disclosure Office should contact the Technical Advisor for CI , 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 CI Technical Advisor, who will determine whether the order should be processed by the field liaison Disclosure Office or the HQ CI Technical Advisor. If complications arise, the CI Technical Advisor will consult with the Deputy AD, Disclosure HQ, for guidance.

  16. An Ex Parte court order case may be closed only when all requested documents have been provided or all required special search efforts are exhausted. Before closing the case, the Disclosure caseworker must notify the requesting official that the records cannot be retrieved and offer to provide alternative products. This contact must be noted in the AFOIA case history and confirmed in writing in the response letter to the requesting official.

    Note:

    Time should be charged to a closed case if a previously requested return is subsequently received, a return was filed after the court order was initiated, but before the order expires, or the certification of documents previously provided is needed.

    Note:

    All certification of records by Disclosure employees is primarily done through the use of a certification stamp and embossed seal affixed to the first page of the document itself. Care must be taken to avoid covering important data, such as entity information, received date stamp, income reported, taxpayer signature, etc. Occasionally, there may be exceptions to Disclosure's method of certifying documents. This push back should be handled on a case by case basis.

  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 Title 18 USC §1905.

11.3.28.3.1  (08-05-2014)
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 in criminal matters (e.g., providing tax returns and return information) under the Mutual Legal Assistance Treaties (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 Large Business & International (LB&I), Deputy Commissioner International (DCI), Exchange of Information Office (EOI). CI will process financial investigative assistance requests.

    3. CI forwards the request package to EOI. EOI 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. In a memo, ACCI conveys to EOI and CI the conclusions of its evaluation of the MLAT. 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).

  3. Based on the ACCI approval letter and the receipt of an Ex Parte Court Order under § 6103(i)(1) or a letter under § 6103(i)(2), EOI will fax the request to the Headquarters FOIA TLS.

  4. The Headquarters FOIA TLS will contact a field Disclosure Office, in writing, requesting assistance with IDRS research and securing the tax returns.

  5. The Headquarters FOIA TLS will forward the relevant documents to EOI. EOI will comply with the MLAT request by forwarding the documents 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. EOI may include appropriate instructions regarding confidentiality of the documents and limitations on their use, if any, in the cover letter to DOJ OIA.

  6. 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  (08-05-2014)
Disclosures to Main Department of Justice (DOJ)

  1. Requests from Main DOJ will be forwarded to the CPU for import into AFOIA.

  2. Any Disclosure Office can process a request from 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  (08-05-2014)
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 court 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 Philadelphia, PA 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  (08-05-2014)
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 personnel should assist the Disclosure Office. This should include, at the least, a written recommendation on the releasability of the documents in any open compliance case.

    Note:

    All Ex Parte orders and other requests for returns under the authority of IRC § 6103(i) qualify for priority special search treatment per IRM 3.5.61.16. Accordingly, Disclosure personnel will use Special Search rather that IDRS command code ESTAB procedures when requesting returns or administrative files from campus file or FRC 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 or FRC.

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) for additional information.

      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  (08-05-2014)
Notifying the IRS of Intent to Apply for an Ex Parte Court Order

  1. The appropriate official will notify the IRS Disclosure Office in advance when a determination is made to apply for an Ex Parte court order. This advance notification allows the IRS to expedite efforts to obtain and review returns and return information prior to receipt of the court order. 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.

    Note:

    Usually, when there is a short deadline for receipt of the documents, the DOJ will contact their local Disclosure Office to advise of the pending order. It is imperative to take action upon receipt of the advance notice rather than wait for the actual court order. Beginning the processing prior to receipt of the actual Ex Parte court order will help ensure all documents are received and forwarded to the US Attorney in a timely manner. See AFOIA Inventory and Document Management Procedures Guide Section 7(3)e. The Disclosure caseworker should also discuss alternative products that are available.

  2. Whenever advance notice is not received, the response 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 officially 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  (08-05-2014)
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 non-tax criminal act has been committed.

    2. There is reasonable cause to believe that the return or return information is or may be relevant to a matter relating to the commission of that non-tax criminal act.

    3. The return or return information is sought exclusively for use in a federal non-tax 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. However, any questions concerning the federal statutes should be clarified with the requesting official prior to the release of any tax information. See IRM 11.3.28.3(10)c) for additional information.

  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 Disclosure Office will obtain copies of the requested documents and have them delivered directly to the judge or magistrate for his/her inspection, instead of to the requesting official. In such cases, the disclosure is not considered to be made unless the judge/magistrate approves the disclosure.

11.3.28.4.3  (08-05-2014)
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. 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. However, if the order doesn't specify the criminal violations being investigated or prosecuted, contact the requesting official to obtain the information. Caseworkers may accept oral or written confirmation of the statutes.

  3. Process any Ex Parte order that does not conform to the requirements in (1) as specified in IRM 11.3.28.3(11).

11.3.28.5  (08-05-2014)
Disclosures in Conformity with an Ex Parte Court Order

  1. The 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 and taxpayer return information.

    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, instead of on the AFOIA Documents Requested Form.

    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:

    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 periods with open collection, examination, criminal investigation(CI) or other compliance activity, the Disclosure Office will obtain clearances from the applicable functions before releasing any return information pertaining to those periods.

    Note:

    Functional clearances are not required for the disclosure of returns or return information on periods with no open Compliance or CI activity. Any local alternative procedures for securing clearances should be documented and be kept in a permanent administrative file.

  3. 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?

  4. Maintain documentation of clearances in the AFOIA Research Folder and notate in the case history.

  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 by the function for the case file Research Folder and will include detailed facts and circumstances to establish a basis for justifying denial of disclosure, i.e., it will identify a confidential informant or specifically how it will seriously impair a civil or criminal tax investigation. The functional representative should also be prepared to discuss their objection with the requesting official.

  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, Disclosure and Safeguards.

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

  9. Where a requester initiates contact with the Disclosure 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. When the MF indicates no record of filing, the Disclosure Office 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.

    Note:

    Form 3050, Certification of Lack of Record, should only be prepared when there is no record of a return being filed. This includes situations where the taxpayer was not required to file a return and/or should have filed a return and didn't. Forms 3050 should not be used when the return was not required to be filed yet (before April 15th). Document the AFOIA case history and specifically address the fact that a return was not due to be filed, yet, in the response letter.

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

  12. The caseworker will follow-up with Special Search or the FRC within 3 working days, if the documents or confirmation of documents being forwarded to the CPU was not received. If the Disclosure Office caseworker experiences any delay in obtaining the returns and files after the initial follow-up, he/she should contact their Disclosure Manager who will contact the Files or FRC supervisor where the returns are located for assistance.

  13. An Ex Parte court order for copy of any Freedom of Information Act (FOIA) requests submitted by the subject(s) of the order and the AFOIA case file information must also cite the Privacy Act, 5 USC § 552a. Per Counsel advice, these documents are protected by the Privacy Act and not releasable under IRC § 6103(i). If the order includes the appropriate language, process the request. If the order does not contain the appropriate language, contact the AUSA and secure a letter signed by the US Attorney requesting the disclosure of the FOIA case information pursuant to the Privacy Act.

    Note:

    The requirements for such a request are that it be made in writing by the US Attorney (not an AUSA), specify the particular portions of the FOIA records desired, state that the information will be used for civil or criminal law enforcement, and specify what that law enforcement activity is.

  14. The Disclosure Manager will edit any information prohibited from disclosure.

  15. 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 4-12 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 Discriminant Function (DIF) and Underreported Income DIF (UIDIF) scores and SERFE indicators (selection of exempt organization returns for examination). The Director, Governmental Liaison, Disclosure and Safeguards, should be contacted if the requesting official contests these redactions. The requesting official should be made aware that it is IRS policy to delete all DIF and UIDIF scores and SERFE indicators. This is a one-time notification and can be incorporated into the documentation described in IRM 11.3.28.3(7).

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

  16. 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.

  17. 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 30, 60 or 90 day cutoff. When no cut off is given, the date of the order is the cutoff date.

    Note:

    The end of the extended time frame 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 cutoff date (e.g., order date plus 90 days in this case) of the order is finally obtained from files after the cutoff date, it should be furnished to the requester. The determining factor is that the IRS must receive the responsive data prior to the end of the cutoff date of the order. The fact that the responsive data has not been obtained by the Disclosure Office prior to the cutoff date does not change the fact that the data was in the IRS’s possession prior to the cutoff date.

  18. In no case will the cutoff date exceed 90 days, even if the order specifies a cutoff date that exceeds the 90 day limit. 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.

  19. Generally, information disclosed under IRC § 6103(i) can only be re-disclosed 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.

  20. 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.

  21. State and local government personnel involved in the federal investigation are prohibited from using or disclosing the data obtained through the federal Ex Part Court Order process for state or local law enforcement purposes.

  22. After clearance actions and screening of returns and files have been completed, the Disclosure Office caseworker will prepare a response transmittal letter using the appropriate AFOIA Pattern Letter for the signature of the Disclosure Manager. IRM Exhibit 11.3.28-6 shows examples of wording that may be used to forward information to an authorized requester.

  23. Some offices may have procedures in place for the authorizing official (usually the Disclosure Manager) to approve the disclosures separately from the response 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.

  24. Once the initial response transmittal letter authorized by the official designated by Delegation Order 11-2 is sent to the requester, the Disclosure Office caseworker 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 for tax years 2006 and prior. Form 8453 is an integral part of electronically filed returns for 2006 and prior 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. Document this contact in the case notes. 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. Form 8453, U.S. Individual Income Tax Transmittal for an IRS e-file Return was renamed and is used as a transmittal for certain non-electronically submitted documents for tax years 2007 and subsequent. If Form 8453 was filed, contact the requesting official to determine if it is needed. Document this contact in the case notes.

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

  29. Once a related statute call is made in a Bank Secrecy Act or money laundering investigation, the investigation is treated as a tax administration activity, even though the violation is not a pure tax 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 multi-agency investigation/grand jury involving other non-tax 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 non-tax 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.

  30. 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.

  31. Providing copies of returns and taxpayer return information in response to an Ex Parte Court Order is per an agreement between the IRS, the Department of Justice and the federal courts. Copies will always be provided on the initial response to the order. If, on the rare occasion, the original returns are needed at a later date in order to successfully prosecute the case, to the extent the documents still exist the Disclosure caseworker should secure the original returns, certify them, if necessary, and send them to the DOJ.

11.3.28.5.1  (08-05-2014)
Disclosure of Bank Secrecy Act Information

  1. Effective January 3, 2012, Disclosure no longer processes requests for Bank Secrecy Act (BSA) records. Should Disclosure receive an Ex Parte court order requesting BSA records, contact the requesting official and advise that per the December 22, 2011 Department of Justice memorandum United States Attorneys are required to submit all requests for copies of BSA records to FinCEN (Financial Crimes Enforcement Network).

  2. BSA records include the following documents:

    1. Currency Transaction Reports (CTRs), including Casino CTRs;

      Note:

      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 IRMF transcripts will be provided in the response to Ex Parte court orders. Preferably, the order should contain language such as "including information returns" or "including Information Returns Master File data." 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. This discussion must be documented in the AFOIA case history.

    2. Registration of Money Services Business (RMSB);

    3. Foreign Bank Account Reports (FBARs);

    4. Suspicious Activity Reports (SARs); and

    5. Report of Cash Payments Over $10,000 Received in a Trade or Business (Forms 8300) filed on or after January 1, 2002.

  3. To the extent BSA information is contained in an IRS file and used to determine tax liability or the ability to pay tax it is considered Title 26 information that can be released to the DOJ. However, on the rare occasion that it is in the file and not used for any tax purpose, it must be removed prior to releasing file to the DOJ.

11.3.28.5.2  (08-25-2009)
Re-disclosure Rules for US Attorneys

  1. The regulations at 26 CFR § 301.6103(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. 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  (08-05-2014)
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 re-delegated.

    Note:

    IRC 6103(i)(2) does not allow disclosure of other than taxpayer return information to the Department of Justice for use in collecting restitution due to the U.S. government as a result of the Fair Debt Collection Procedures Act. Clearly at the point that the DOJ is seeking restitution, all judicial and administrative actions related to the investigation or proceedings pertaining to the identified defendants criminal actions have been completed. So, the IRC § 6103(i)(2) provision does not apply.

  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 caseworker responsible for processing the request will segregate the other than taxpayer return information from the returns and taxpayer return information. See IRM 11.3.28.5(14) for other 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. Requests for addresses only cannot be honored because IRC § 6103(i)(2) requires that the requester provide an address.

    Note:

    See IRM 11.3.28.2.2 for records considered other than taxpayer return information.

  5. Seek approval by the designated official per Delegation Order 11-2 prior to releasing any information. 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.

    Note:

    This does not require Disclosure to continually monitor the account for any changes; but allows for the requester to seek additional information using the initial request.

  7. Transmit the requested information, after approval by the designated official per Delegation Order 11-2, using the appropriate AFOIA Pattern Letter. IRM Exhibit 11.3.28-6 contains examples of wording to use when transmitting data.

11.3.28.7  (08-05-2014)
IRS Initiated Disclosures of Return Information Concerning Non-Tax Criminal Violations

  1. While performing their official duties, IRS employees may obtain information indicating that non-tax criminal violations may have occurred, or they may witness criminal acts that are under the jurisdiction of another federal agency.

  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 a non-tax federal criminal statute. Care must be taken in determining whether the referral information is taxpayer return information, as defined in IRC § 6103(b), or other than taxpayer return information.

  3. Information may be disclosed to the extent necessary to tell the head of the federal agency having enforcement responsibility over the federal criminal 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 non-tax 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 or statute to which it relates.

    Note:

    Any information referred to another federal agency must be able to be independently verified by that agency, outside of the use of confidential tax information.

  7. For referrals made under IRC § 6103(i)(3)(A), when return information (other than taxpayer return information) that may constitute evidence of a violation of a non-tax federal criminal law is disclosed, the identity (name, address, SSN and date of birth) of the taxpayer may also be disclosed. The taxpayer identity information is treated as return information, other than taxpayer return information, in this instance. However, taxpayer identity information may not be disclosed by itself under IRC § 6103(i)(3)(A).

  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 Non-Tax Criminal Violations, provides instructions for instances when IRS employees receive non-tax information about a possible non-tax violation of federal, State or local criminal laws.

11.3.28.7.1  (08-05-2014)
Disclosures of Return Information (Other than Taxpayer Return Information) Concerning Non-Tax Criminal Violations

  1. When an employee discovers information that may include evidence of a potential non-tax 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 non-tax federal criminal violations through channels to the Director, Governmental Liaison, Disclosure and Safeguards.

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

    1. Name, social security number, address, and any aliases, of subject. To the extent necessary, the subject's date of birth may also be disclosed.

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

    3. Summary of the facts and circumstances surrounding the non-tax 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. Department of Homeland Security, 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 11.3.28-7 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, Disclosure and Safeguards will review all referral memorandums submitted by Headquarters personnel to ensure that all relevant information has been reported.

  6. A letter will be prepared by Disclosure detailing the information to be disclosed. The Disclosure Office will forward the letter to the head of the appropriate federal agency and send a copy the letter to the employee who initiated the referral.

  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.

    Example:

    A referral to Department of Homeland Security pertaining to illegal activity in the United States consisting of only the name, address and TIN of the individual (OTRI), without other independently verifiable non-tax information, is not permitted under IRC § 6103(i)(3)(A).

  8. Oral discussions or clarifications with an employee of the other federal agency is prohibited. Should an IRS employee receive a telephone call from the agency, the employee should advise that the letter sent contains all of the information permitted to be disclosed under IRC § 6103(i)(3)(A) and that the statute does not permit oral discussions on the information.

11.3.28.8  (08-05-2014)
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 Potentially Dangerous Taxpayer (PDT) information may be disclosed to IRS employees conducting non-tax 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) 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.

11.3.28.8.1  (08-05-2014)
Suicide Threats

  1. By itself, a suicide threat to IRS is not considered tax information. Therefore, the threat, itself, 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, i.e. "Where are you, right now?"

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

    Note:

    Do not use IDRS to look up the taxpayer's address. IDRS information is taxpayer return information protected by IRC § 6103. For example, when verifying a caller is actually the taxpayer, we verify their name, TIN, address, etc. against information contained in IDRS. This verification cannot be used when reporting a suicide threat. By asking where the taxpayer is, specifically, you will be able to direct LEO to where the taxpayer is and not to an empty house, which is the address of record.

  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 GLDS HQ employees or supervisory level employees) can make the disclosure. See Delegation Order 11-2.

    3. Form 5466-B, Multiple Records of Disclosure, must be prepared for accounting purposes after making any disclosure of taxpayer return information to state or federal law enforcement authorities. The completed Form 5466-B, Multiple Records of Disclosure, will be sent to the Disclosure Manager.

    4. Any disclosures made to local law enforcement of taxpayer location information obtained from IRS systems or files constitutes an unauthorized disclosure. See Reporting Unauthorized Disclosures on the Disclosure web site.

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

11.3.28.8.2  (08-05-2014)
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 or Specialists 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 the HQ Senior Disclosure Analyst for disclosures relating to terrorism. The analyst is currently located in Philadelphia, Pennsylvania.

    Note:

    Any correspondence marked "Classified," "Secret" or "Top Secret" should be immediately forwarded, unopened, to the HQ Senior Disclosure Analyst in Philadelphia .

  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 IRC § 6103(i)(3)(C) and IRC § 6103(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. Please see IRM 11.3.28.8.2(3) Note for guidance if the request is marked "Secret" or "Top Secret" ;

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

      Note:

      These Ex Parte court orders are worked by field Disclosure employees. Do not transfer them to the HQ Senior Disclosure Analyst for processing.

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

11.3.28.9  (08-05-2014)
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 and other than 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 non-tax 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 non-tax 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 11.3.28-6 pertaining to IRC § 6103(i)(4) requirements.

  3. Return information that is other than taxpayer disclosed pursuant to IRC 6103(i)(1), (i)(2), (i)(3)(A) or (i)(3)C) and (7), return information does not require a court determination described in IRM 11.3.28.9(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. An accounting for disclosures made under IRC § 6103(i)(4) is not required. See IRM 11.3.37.1(7).

11.3.28.10  (08-05-2014)
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 11.3.28-6 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.

11.3.28.11  (08-05-2014)
Accounting for Disclosures

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

  2. A notation must be placed in the AFOIA history notes indicating the completion of Form 5466-B, Multiple Records of Disclosure, or accounting for disclosures by some other means. A copy of Form 5466-B, Multiple Records of Disclosure, or other accounting document, may also be placed in the file, but is not required.

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

  • AUSA DETERMINES NEED FOR TAX INFORMATION

  • ADVANCE NOTICE/COURT ORDER RECEIVED

  • USE CPU OR LOCAL PROCEDURES TO HAVE CASE INPUT AND ASSIGNED

  • ANALYZE ORDER

  • ACKNOWLEDGE RECEIPT OF COURT ORDER

  • DETERMINE TIME FRAMES AND NEEDS

  • DOCUMENT CASE FILE

  • PREPARE AND FORWARD AUTHORIZATION MEMO FOR DISCLOSURE MANAGER APPROVAL

  • IMPORT AUTHORIZATION MEMO INTO CASE FILE

  • SECURE CLEARANCES ( IF OPEN COMPLIANCE ACTIVITY PRESENT)

  • CONDUCT RESEARCH

  • IMPORT RESEARCH INTO AFOIA

  • SECURE RETURNS AND RETURN INFORMATION

  • IMPORT DOCUMENTS INTO AFOIA

  • ANALYZE RETURN INFORMATION

  • CERTIFY LACK OF RECORD(S), IF ANY, AND IMPORT INTO AFOIA

  • PREPARE INITIAL RESPONSE LETTER FOR DISCLOSURE MANAGER SIGNATURE

  • EXPORT RESPONSIVE RECORDS TO CD

  • PREPARE SEPARATE RESPONSE LETTER FOR PASSWORD FOR CD

  • PREPARE RESPONSE LETTER FOR CERTIFICATION OF LACK OF RECORD AND CD INFORMATION

  • MAIL LACK OF RECORD AND CD RESPONSES TOGETHER

  • MAIL RESPONSE LETTER WITH PASSWORD FOR CD SEPARATELY

  • ACCOUNT FOR DISCLOSURES

  • FORWARD CASE FOR CLOSING

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

  • AUSA DETERMINES NEED FOR RETURN INFORMATION, OTHER THAN TAXPAYER RETURN INFORMATION

  • ADVANCE NOTICE/REQUEST RECEIVED

  • USE CPU OR LOCAL PROCEDURES TO HAVE CASE INPUT AND ASSIGNED

  • ANALYZE REQUEST

  • ACKNOWLEDGE RECEIPT

  • DETERMINE TIME FRAMES AND NEEDS

  • DOCUMENT CASE FILE

  • PREPARE AND FORWARD AUTHORIZATION MEMO FOR DISCLOSURE MANAGER APPROVAL

  • IMPORT AUTHORIZATION MEMO INTO CASE FILE

  • CONDUCT RESEARCH

  • IMPORT RESEARCH INTO AFOIA

  • SECURE CLEARANCES (IF OPEN COMPLIANCE ACTIVITY PRESENT)

  • SECURE RETURN INFORMATION (OTHER THAN TAXPAYER RETURN INFORMATION)

  • IMPORT DOCUMENTS INTO AFOIA

  • ANALYZE DATA

  • EXPORT RESPONSIVE RECORDS TO CD (IF PROVIDING ACTUAL DOCUMENTS)

  • PREPARE INITIAL RESPONSE LETTER FOR DISCLOSURE MANAGER SIGNATURE

  • PREPARE SEPARATE RESPONSE LETTER FOR PASSWORD FOR CD

  • MAIL RESPONSE

  • MAIL RESPONSE LETTER FOR PASSWORD FOR CD SEPARATELY

  • ACCOUNT FOR DISCLOSURES

  • FORWARD CASE FOR CLOSING

Exhibit 11.3.28-3 
Sample Language for IRC § 6103(i)(7)(A) Request

U.S. Department of Justice
Federal Bureau of Investigation
Washington, DC 20535–0001
(DATE)
 
Internal Revenue Service
600 Arch Street, Room 7214
Philadelphia, PA 19106
Attention:
 
RE: Request for Disclosure of Tax Information (Other than Tax Return Information)
  • Name: (First, MI, Last)

  • SSN: xxx-xx-xxxx

  • DOB: mm/dd/yyyy

  • Address: (insert current street address or PO Box and city, state and zip code)

  • Address Search: (insert other possible addresses)

This communication is classified SECRET in its entirety with the exception of the name and/or address, or TIN or other identifying information provided with this request for which OTRI is sought, which are considered unclassified for the purpose of this request.
Pursuant to 26 U.S.C. § 6103(i)(7)(A), the FBI requests the IRS to disclose return information, other than taxpayer return information, of the following: (repeat the same as above)
  • Name: (First, MI, Last)

  • SSN: xxx-xx-xxxx

  • DOB: mm/dd/yyyy

  • Address: (insert current street address or PO Box and city, state and zip code)

  • Address Search: (insert other possible addresses)

The FBI's investigation has found that the above listed individuals and addresses, may be related to [insert relevant category (terrorist incident, threat, or activity)]. Investigation has shown that the above individuals and related address(es) have [briefly state general purpose of investigation and nexus to terrorism]
Pursuant to the provisions of 26 U.S.C. § 6103(i)(7)(A), we request the applicable tax information as allowed by law. The FBI believes that any identifying information and/or other than taxpayer return information that the IRS may have would be of interest to the FBI's continuing terrorism investigation into this matter.
Please send your response to this request to the following address:
Federal Bureau of Investigation
Director [insert FBI Director's name]
Attention: National Security Law Branch
935 Pennsylvania Avenue, NW
Room 7975
Washington, DC 20535
I also request a copy of this request be sent to our Headquarters [or field] office at the following address:
Federal Bureau of Investigation
[insert street address]
[insert city, state & zip code]
Attn: SSA [insert name]
If you have any questions concerning this request, please contact Supervisory Special Agent (SSA) [insert name] at telephone number (xxx) xxx-xxxx.
Sincerely,



Deputy Assistant Director

Exhibit 11.3.28-4 
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 [INSERT NAME]
                                    DISCLOSURE MANAGER
                                    DISCLOSURE OFFICE XX
FROM:                         [INSERT NAME]
                                    DISCLOSURE SPECIALIST
                                    DISCLOSURE OFFICE XX
SUBJECT:                  Ex Parte Court Order
                                     Case Number: CXXXXX-XXXX
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, [Insert Name]
(Please return to the Disclosure Specialist upon approval.

Exhibit 11.3.28-5 
Memorandum to Obtain Disclosure Manager Authorization to Make IRC § 6103(i)(2) Disclosures



This Page Intentionally Left Blank
DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
WASHINGTON, D.C. 20224
(Month Day, Year)
MEMORANDUM FOR [INSERT NAME]
                                    DISCLOSURE MANAGER
                                    DISCLOSURE OFFICE XX
FROM:                         [INSERT NAME]
                                    DISCLOSURE SPECIALIST
                                    DISCLOSURE OFFICE XX
SUBJECT:                  Ex Parte Court Order
                                    Case Number: CXXXXX-XXXX
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, [Insert Name]
(Please return to the Disclosure Specialist upon approval.)

Exhibit 11.3.28-6 
Sample Language

A. Sample Language for §§ 6103(i)(1) and (i)(5) Disclosures
  We are responding to an Order from the United States District Court, XXXXXXX District of XXX, dated [order date], received in our office on [received date]..

Pursuant to IRC § 6103(i)(1) (or IRC § 6103(i)(5), as appropriate), I authorize the disclosure of [OR: I have been authorized to disclose] the returns and return information concerning the taxpayer(s) and tax years listed in the order.

We are providing copies of the documents or certification of lack of record as shown on the enclosure.

In the past we provided certified documents in response to court orders. With the approval of the Executive Office of the United States Attorney Criminal Chief's working group, we are no longer certifying documents with our initial response. The working group agreed to this change because the IRS implemented an electronic inventory system that maintains all records for latter retrieval. If you need documents certified for actual introduction to a court proceeding, please contact the Disclosure office using the phone number provided in this letter. The office will produce the required certified documents within two business days.

If the requested records do not exist, we sent you a separate letter with Forms(s) 3050 certifying the lack of record. [OR: We will send a separate letter with the remaining responsive documents.]

We are providing this information with the understanding that it will be used strictly in accordance with, and subject to the limitations of, the disclosure provisions of IRC § 6103. State and local personnel may be considered federal employees for disclosure purposes as long as these employees are formally appointed, rather than detailed, assisting in a federal investigation and 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).

. 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, pertaining to 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 me [OR: the Disclosure Manager], if the Order becomes a matter of public record.

Note: A description of the requested/disclosed documents are identified by way of an attachment to the letter.
 
 
 
 
 
   
     
C. Sample Language for IRC 6103(i)(2) Disclosures  
  We are responding to your [date of request] letter received in our office [date received].

Pursuant to IRC § 6103(i)(2), I authorize the disclosure of [OR: I have been authorized to disclose] the 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 the taxpayer(s) and tax year(s) listed in the request.
 
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 18 USC § 1905 pertaining to 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 YYYY tax return was provided to [name of third party].
 
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 11.3.28-7 
Non-tax 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 IRC § 6103(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 § 6103(i)(3)(A) referral:*
  A. Individual's name(s):                                                                               
  B. Social Security Number(s):                                                                  

[*Multiple subjects should be listed individually (with all of the above identity information) on a continuation page. Subjects may be individuals or businesses.]
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 non-tax federal criminal statutes were potentially violated?
D. Identify any third party witnesses and describe:
  1. Their relationships to the subject of this referral and/or to the taxpayer.

  2. The nature of the information provided by each

  3. The specific criminal act(s) or event(s) to which their information relates.

   
   
   
E. Are any witnesses confidential informants?
  1. List Informant name(s).

  2. Will any confidential informants be identifiable by the information they provided?

    • If yes, specify who and how.

  .
  F. What, if any, information is being provided by a third party, but not on behalf of the individual(s) or entity(s) involved in this referral?
  1. Can the information provided be verified outside access to confidential tax information?

  2. List the information and describe how and where the information has been verified outside access to confidential tax information. (e.g. Travel outside of US - Department of Homeland Security; Suspicious Activity Reports (SAR) - FinCEN; Claims for reimbursement on food purchases for federally-backed lunch programs - Department of Agriculture; etc.)

  G. Was any of the information provided by, or on behalf of, the individual(s) or entity(s) involved in this referral relative to their own tax matters?
  1. Was any of this same information also obtained from a third party, but not for or on behalf of the taxpayer or individual?

    • If so, identify the information

    • If not and there is no other information supporting the referral, stop here. The referral cannot be made.

  H. 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 Non-tax Criminal Violations?

Note:

If not, stop here. The referral cannot be made.

  I. Are there any special circumstances involved (e.g., will referral impair federal tax administration, contains Grand Jury information, etc.)?

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