11.3.35  Requests and Demands for Testimony and Production of Documents

11.3.35.1  (03-10-2009)
Purpose

  1. These procedures provide instructions for IRS officers and employees (including former officers and employees), as well as IRS contractors (including former contractors) responding to requests and demands for testimony and production of IRS records or information in judicial or administrative proceedings.

11.3.35.2  (01-01-2006)
Authority

  1. Treasury Regulations 301.9000-1 through 301.9000-7 require IRS officers and employees, as well as contractors, to obtain prior approval before they may produce IRS records or information or testify in judicial or administrative proceedings in response to a demand (subpoena, notice of deposition, court order, etc.).

  2. Delegation Order 11-2 sets forth the IRS officials who may authorize testimony or disclosure of IRS records or information in response to certain requests and demands for such information.

  3. The scope of the authorization will be restricted in accordance with applicable disclosure laws (e.g., IRC §6103, IRC §6104, IRC §6105, IRC §6110, IRC §4424, and the Privacy Act).

11.3.35.3  (01-01-2006)
Definitions

  1. IRS records or information mean any material (including copies thereof) contained in the files (including paper, electronic, or other media files) of the IRS, any information relating to material contained in the files of the IRS, or any information acquired by a current or former IRS officer, employee, or contractor, while an IRS officer, employee, or contractor as a part of the performance of official duties or because of that IRS officer's, employee’s, or contractor’s official status with respect to the administration of the internal revenue laws or any other laws administered by or concerning the IRS.

    Note:

    When a discovery request or demand for production of documents received by the IRS includes any documents received from or created by the IRS in response to a Joint Committee on Taxation inquiry arising from its general oversight authority, the Joint Committee will be notified of the request or demand. Any response to the discovery request or demand will be coordinated with the Joint Committee. Field Disclosure or Counsel personnel who receive requests or demands for testimony or document production are to contact the Chief, Disclosure in HQ or the Office of the Associate Chief Counsel (Procedure and Administration), respectively, who will coordinate with the Joint Committee.

  2. In this section, "IRS records or information" will be referred to as "IRS information. "

  3. IRS information includes, but is not limited to, returns and return information as defined in IRC §6103(b)(1) and (2), tax convention information as defined in IRC §6105, information gathered during Bank Secrecy Act (BSA) and money laundering investigations, and personnel records and other information pertaining to IRS officers and employees. IRS information also includes information received, generated, or collected by an IRS contractor pursuant to the contractor's contract or agreement with the IRS.

    Note:

    Witnessing a traffic accident while on official business would not constitute IRS information and would not ordinarily require an authorization to testify about the accident. However, the identity and address of the taxpayer involved in the official business would be return information protected by IRC §6103 and if requested, would be IRS information requiring authorization.

  4. Information or documents obtained by an employee under the direction and control of the U.S. Attorney's Office in a grand jury investigation is generally not considered IRS information subject to Treasury Regulations 301.9000-1 through 301.9000-7.

    Note:

    See IRM 11.3.35.9 for procedures concerning subpoenas for grand jury information.

  5. The term "IRS records or information" includes records or information obtained during the administrative stage of a criminal investigation (prior to the initiation of the grand jury), obtained from IRS files (such as transcripts or tax returns), or subsequently obtained by the IRS for use in a civil investigation.

  6. Testimony in a grand jury investigation regarding returns obtained pursuant to IRC §6103(h)(2) constitutes testimony about IRS information.

  7. A demand is an order from any court, administrative agency or other authority, or the Congress, or a committee or subcommittee of the Congress, and any notice of deposition, and includes:

    • Subpoena

    • Summons

    • Notice of deposition (either upon oral examination or written questions);

    • Request for admissions

    • Other notice of, request for, or service for discovery in a matter before any court, administrative agency or other authority

    • Request for production of documents or things

    • Written interrogatories to parties and

    • Other orders by a court (including a military court), administrative agency, or "other authority"

    Note:

    "Other authority" includes a grand jury and Congressional committees or subcommittees.

    Note:

    A request is any request for testimony by an IRS officer, employee, or contractor for production of IRS records or information, oral or written, by any person, which is not a demand.

  8. An IRS matter is any matter before any court, administrative agency or other authority in which the United States, the Commissioner, the IRS, or any officer or employee acting in an official capacity, or any IRS officer, or employee (including an officer or employee of the IRS Office of Chief Counsel) in his or her individual capacity, if the United States Department of Justice or the IRS has agreed to represent or provide representation to the IRS officer or employee, is a party, and that is directly related to official business of the IRS or to any law administered by or concerning the IRS. This includes, but is not limited to, judicial and administrative proceedings described in IRC §6103(h)(4) and IRC §6103(l)(4).

  9. IRS officers and employees mean all officers and employees of the United States appointed by, employed by, or subject to the directions, instructions, or orders of the Commissioner or IRS Chief Counsel, and includes former officers and employees.

  10. An IRS contractor means any person, including the person's current and former employees, maintaining IRS records or information pursuant to a contract or agreement with the IRS, and includes former contractors.

  11. The field IRS Disclosure Office should be contacted for advice by any former employee, officer, or contractor who receives a request or demand to testify concerning returns and return information, or other IRS information.

    1. This would not apply to a request or demand issued to a former IRS officer or employee for expert opinion or testimony where the testimony involves general knowledge (such as information contained in published procedures of the IRS or the IRS Office of Chief Counsel) gained while the former IRS officer, employee, or contractor was employed or under contract with the IRS. These situations require no testimony authorization.

      Note:

      See IRM 11.3.35.6 for procedures concerning testimony authorizations.

  12. To the extent a former officer, employee, or contractor is requested or demanded to give testimony or produce documents which would be considered to be returns or return information, the former officer, employee, or contractor is still governed by the provisions of IRC §6103.

    1. The limitations imposed by IRC §6103(a) still apply to information of which the individual had knowledge because of his or her relationship with the IRS.

      Note:

      The former officer, employee, or contractor would be subject to the penalty provisions of IRC §7213 and IRC §7431 for unauthorized disclosures of returns and return information.

    2. Information subject to the Privacy Act would still enjoy Privacy Act protection.

    3. Classified information gained while employed would also be statutorily protected from release by the former officer, employee, or contractor.

11.3.35.4  (01-01-2006)
Requests Authorized by Field Officials

  1. In Delegation Order 11-2 there are tables for testimony authorization that specify the judicial or administrative proceedings that do or do not require testimony authorizations. Each table gives examples of the proceeding and lists the responsible officials for both preparing and either authorizing or denying the testimony.

  2. In addition, Delegation Order 11-2 includes a table that provides a list of the privileges to withhold documents or testimony. This table specifies who has the authority to either assert or waive these privileges.

  3. In general, use the authorities in the tables of Delegation Order 11-2 to determine whether to permit officers or employees of the IRS working in the same geographical area as the listed authorizing official to testify or produce IRS information subsequent to a request or demand for such records or information.

    Note:

    See IRM 11.3.35.5 for exceptions.

  4. Table 1 of Delegation Order 11-2 covers authorization for Tax Court proceedings.

  5. IRS officials charged with preparing or authorizing testimony approvals or denials should coordinate with appropriate counsel before acting. In some cases, this will involve coordination through HQ Chief Counsel.

11.3.35.5  (01-01-2006)
Requests Requiring Headquarters Authorization

  1. The following requests or demands for testimony or production of IRS information must be authorized by the Director, Disclosure of the Office of Governmental Liaison and Disclosure (GLD).

    1. Requests made to IRS employees assigned to a Headquarters office, including employees of the Office of Chief Counsel assigned to Headquarters.

    2. Requests that may require a disclosure to a competent authority under a tax treaty pursuant to IRC §6103(k)(4), or information received by the IRS under a tax treaty, regardless of whether the information was previously disclosed pursuant to the treaty.

      Note:

      Authorization will be provided in these cases only after the approval of the Deputy Commissioner, International, (LMSB) is secured.

    3. Requests made to IRS employees assigned to the Martinsburg, Tennessee, and Detroit Computing Centers.

    4. Employees appearing voluntarily or upon request before a state legislative body.

    5. Employees in Puerto Rico, Guam, the Virgin Islands, or other U.S. possessions or protectorates.

      Note:

      Certain cases identified by HQ Disclosure will be authorized by the Director, GLD or at a higher management level because of their particular sensitivity.

  2. The following requests or demands for testimony or production of IRS information must be authorized by the Commissioner, the appropriate Deputy Commissioner, or other delegated official in accordance with Delegation Order 11-2:

    • Requests made by a Congressional committee (these requests will immediately be brought to the attention of the Office of Legislative Affairs)

    • Requests involving disclosure to the President or certain other persons under IRC §6103(g)

    • Requests involving disclosure to correct a misstatement of fact under IRC §6103(k)(3)

  3. These authorizations must be cleared through the Associate Chief Counsel (Procedure and Administration).

11.3.35.6  (01-01-2006)
Procedures in IRS Matter Cases

  1. An IRS matter is defined in IRM 11.3.35.3(8).

  2. "IRS matter" is not defined in IRC §6103. However, these matters include, but are not limited to:

    • Criminal tax cases

    • Refund litigation cases

    • Summons enforcement cases

    • Wrongful levies

    • Foreclosure of Federal tax liens

    • Bankruptcies

    • Actions affecting personnel rights of employees or former employees of the IRS

    • Federal tort claims litigation

    • Freedom of Information and Privacy Act litigation

  3. No authorization is needed when testimony or production of records is requested by Government counsel representing the IRS in an IRS matter.

  4. Where testimony requesting IRS information is sought in an IRS matter by a party to the litigation other than the government (i.e., the defense in a criminal tax case, a petitioner in a U.S. Tax Court case, the plaintiff in a Federal Tort Claims Act case, or the plaintiff in a refund litigation case), an authorization or denial is required. The office of Chief Counsel is responsible for preparing the proposed authorization and submitting it for approval. Testimony authorization is no longer required to respond solely in writing, under the direction of the attorney or other government representative, to requests and demands in IRS matters, including, but not limited to, admissions, document production, and written interrogatories to parties.

  5. Table 1 of Delegation Order 11-2 delegates to Chief Counsel the authority to determine whether to permit testimony and production of records in response to a Tax Court subpoena.

  6. Chief Counsel has redelegated authority to determine whether to permit testimony and production of records in response to a Tax Court subpoena to Area Counsel, except for Headquarters matters, where the Associate Chief Counsel has been redelegated authority.

  7. No authorization is needed if the IRS officer, employee, or contractor is requested to testify or produce documents in such a proceeding on behalf of the Commissioner.

  8. No testimony authorization is needed to respond to a request or demand issued to a former IRS officer, employee, or contractor for expert opinion or testimony if the testimony sought from the former IRS officer, employee, or contractor involves general knowledge (such as information contained in published procedures of the IRS or the IRS Office of Chief Counsel) gained while the former IRS officer, employee, or contractor was employed or under contract with the IRS.

  9. No testimony authorization is needed if a more specific procedure established by the Commissioner governs the disclosure of IRS records or information. These procedures include, but are not limited to:

    • Treasury Regulation 601.702(d)

    • Freedom of Information Act requests pursuant to 5 USC 552

    • Disclosures to state tax agencies pursuant to IRC §6103(d) and

    • Disclosures to the Department of Justice pursuant to an ex parte order pursuant to IRC §6103(i)(1)

11.3.35.7  (03-10-2009)
Procedures in Non-IRS Matters

  1. Field Disclosure Offices are responsible for preparing authorizations for signature by GLD Area Managers in all cases (except for those involving BSA information in Delegation Order 11-2, Table 6) other than IRS matters. Non-IRS matters are matters not otherwise defined as IRS matters or congressional requests/demands.

  2. The Headquarters Office of Disclosure is responsible for preparing authorizations for the signature of the Chief, Disclosure or Director, GLD, and for the Commissioner and the appropriate Deputy Commissioner. See Delegation Order 11-2.

  3. These authorizations must be reviewed by Chief Counsel prior to submission to the appropriate official for signature.

11.3.35.8  (03-10-2009)
Responsibilities of IRS Personnel

  1. Disclosure personnel will issue written instructions advising all employees to immediately transmit most requests or demands for testimony or production of IRS information to their Disclosure Office along with pertinent facts and background. Such transmittals would not apply to requests or demands in United States Tax Court cases, requests or demands in IRS congressional matters, and requests or demands in personnel, labor relations, government contract, Bivens-type actions, and Federal Tort Claims Act (FTCA) matters, or matters related to informant claims and requests.

  2. A request or demand from a party other than the government in IRS related matters should be transmitted immediately to the appropriate Office of Chief Counsel.

    Example:

    A current or former IRS office, employee, or contractor who receives a request or demand, on behalf of an appellant, grievant, complainant, or representative, for IRS records or information in personnel, labor relations, government contract, Bivens, FTCA matters, or matters related to informant claims, shall promptly notify the IRS Associate Chief Counsel (General Legal Services (GLS)) attorney assigned to the case. If no IRS Associate Chief Counsel (GLS) attorney is assigned to the case, the IRS officer, employee, or contractor shall notify the IRS Associate Chief Counsel (GLS) attorney assigned to servicing his or her geographic area. That IRS Associate Chief Counsel (General Legal Services) attorney will promptly notify the authorizing official. The IRS officer, employee, or contractor who received the request or demand will await instructions from the authorizing official.

  3. While the preparation of a testimony authorization in response to a subpoena in an IRS matter is the responsibility of IRS Chief Counsel, Disclosure personnel may, depending on local policy, assist in briefing the employee on the disclosure ramifications of the testimony.

    1. The need for immediate notification cannot be overemphasized. By failing to take proper steps in the processing of demands for testimony or production of IRS information, employees may subject themselves and the IRS to sanctions such as contempt of court citations.

    2. The request or demand and pertinent facts may be transmitted by telephone or fax when there is insufficient time for formal transmittal and mailing.

  4. Employees whose testimony is requested/subpoenaed and Disclosure personnel at offices having jurisdiction over requested/subpoenaed IRS information are responsible for gathering and reporting the necessary facts on which a proper authorization may be based.

  5. This will include contacting all IRS functions that are or may be affected by the requested testimony authorization to determine if there are open or pending cases. If there are such matters, Disclosure personnel should solicit a recommendation from the affected functions as to whether disclosure will seriously impair tax administration, and if so, how.

  6. Pertinent information will be recorded on Form 6339, Testimony Report, ( See Exhibit 11.3.35-1) or on a management approved form containing substantially the same information as Form 6339.

  7. In cases involving employees or documents under the jurisdiction of more than one office, Disclosure personnel in the involved offices shall coordinate the response.

  8. Jurisdiction over documents and employees for purposes of authorizing testimony and production of records will continue to be vested in the approving official of the office where the respective documents and employees are located.

    Note:

    It may be necessary to obtain more than one authorization (i.e., an authorization for the employee(s) and an authorization for the documents). Disclosure personnel in the involved offices should coordinate activities to minimize the impact on the employees and on the IRS.

  9. Disclosure personnel, with the assistance of Disclosure functional coordinators or employees in the affected offices, are also responsible for coordinating the following actions in connection with the processing of testimony cases:

    1. Locating and assembling requested/demanded documents.

    2. Screening records requested/demanded and segregating or disassociating documents that are not authorized to be disclosed.

    3. Arranging for inspection or transmittal of records.

    4. Arranging for Chief Counsel to assist or an attorney of the Department of Justice (including U.S. Attorneys) to represent the requested/subpoenaed employee.

    5. Using Campus Priority Search Treatment, per IRM 3.5.61.1.2.3 , to obtain records in response to all court mandated requests and demands for documents, including subpoenas. When requesting these documents, Disclosure will fully complete Form 2275, Records Request, Charge and Recharge, to include all information, including the caseworker and Disclosure Manager's telephone number. The caseworker will fax Form 2275 to the appropriate Campus Special Search Unit for processing. If a reply is not received within three days, Disclosure Managers will initiate follow-up contact with the appropriate official.

  10. Disclosure personnel may seek technical assistance from the Headquarters Office of Disclosure when necessary.

  11. Disclosure personnel will maintain a file for testimony and production requests that indicates the actions taken through testimony and production of records.

  12. The closed case files shall contain Form 6339 or equivalent and will include the following:

    1. A description of what the requested/subpoenaed employee testified to and produced in the judicial or administrative proceeding.

    2. Form 5466-B, Multiple Records of Disclosure, or Form 5482, Record of Disclosure (Privacy Act of 1974), should be completed as appropriate to account for the disclosure.

      Note:

      A copy of the appropriate form, or reference to its preparation, should also be included in the file.

    3. Complete audit trails to document all considerations and actions taken on a request including, but not limited to, disclosure and privacy aspects considered, communications made, conclusions made and agreements reached.

11.3.35.8.1  (01-01-2006)
Processing Requests for Personnel and Payroll Records

  1. Requests and demands for testimony and/or production of personnel and payroll records in private litigation or administrative proceedings will be coordinated by the Disclosure Office with the Transactional Processing Center (TPC), which has responsibility for the records.

  2. The Disclosure Office will maintain close contact with the TPC to ensure that the information is received in sufficient time to comply with the date and periods specified in the request, subpoena, etc.

  3. Office of Personnel Management (OPM) has adopted a regulation for OPM records, which is outlined in FPM Bulletin 297-8, dated December 28, 1992. IRS has adopted the OPM regulation for all IRS personnel records as well as all other IRS records subject to the Privacy Act.

  4. The OPM regulation requires that subpoenas for personnel records must be approved by a judge or magistrate of a court of competent jurisdiction in order to meet the court order exception in the Privacy Act (5 USC § 552a(b)(ii)). Subpoenas for documents under OPM's jurisdiction (Official Personnel Files (OPFs) of retired, deceased, or separated employees, whose OPF has been transferred back to OPM) are handled by OPM and should be addressed to:

         The Office of General Counsel
         Office of Personnel Management
         1900 E Street, NW
         Washington, DC 20415

  5. When documents are disclosed in response to such a court order, they are accounted for on Form 5482 as a Privacy Act (b)(11) disclosure.

  6. Before rejecting a subpoena for personnel records signed by an attorney or clerk of the court, Disclosure personnel should advise the requester who caused the subpoena to be issued of the OPM and Privacy Act requirements.

  7. Disclosure personnel should be aware that there might be a routine use (other than subpoenas) that might apply.

    Example:

    The routine use in Privacy Act System of Records 36.003 that provides for the disclosure of information about a possible violation of law to an agency with the responsibility for prosecuting such a violation would cover the disclosure of payroll data in a state prosecution of an employee involving fraud. If the disclosure is made subject to a routine use, the accounting on Form 5482 would reflect a (b)(3) disclosure.

  8. Disclosure personnel should offer the requester an option of withdrawing the subpoena and/or obtaining written permission from the subject of the personnel record in order to meet the confidentiality requirements of the Privacy Act.

    Note:

    No accounting is required for the Disclosure of personnel records under written request of the employee.

  9. The authority to disclose personnel records pursuant to the written permission of the employee lies with the appropriate TPC. Disclosure personnel should remain available to give advice concerning disclosure of personnel records. IRM 11.3.13, Freedom of Information Act, and IRM 11.3.20, Personnel Records, both contain information relating to certain personnel information that is available to the public.

  10. Disclosure personnel should ensure that the accounting and notification requirements regarding disclosure of personnel records made under compulsory legal process are adhered to as described in IRM 11.3.37.17, Recordkeeping and Accounting for Disclosures.

11.3.35.9  (03-10-2009)
Grand Jury Data

  1. Disclosure of information or documents obtained by an employee while under the direction and control of the U.S. Attorney's Office in a Federal grand jury investigation does not require testimony authorization pursuant to Treasury Regulation 301.9000-3. See (3) below. Rather, authorization in these instances comes from the Department of Justice.

  2. Disclosure personnel should direct employees receiving subpoenas regarding Federal grand jury information to the Department of Justice official (usually the Assistant U.S. Attorney assigned to the grand jury investigation) to obtain any necessary direction.

  3. Disclosure personnel should be aware, however, that testimony regarding information obtained during the administrative stage of an investigation (prior to the initiation of the grand jury) may require testimony authorization. See Treasury Regulation 301.9000-1(a).

  4. A subpoena from a defendant that requires testimony about tax information provided pursuant to IRC §6103(h)(2) in a grand jury investigation also requires authorization pursuant to Treasury Regulation 301.9000-3. However, see Treasury Regulation 301.9000-3(b)(2) for exceptions related to admissions, document production, and written interrogatories.

  5. If a defendant's subpoena covers any IRS information as defined in IRM 11.3.35.3(1), and Treasury Regulation 301.9000-3 requires authorization, the Assistant U.S. Attorney or other appropriate Department of Justice (DOJ) official must review a decision whether to permit testimony.

  6. Even if there is no requirement pursuant to Treasury Regulation 301.9000-3 for a written testimony authorization, an employee may request and receive written approval from the Disclosure Office to appear and give testimony under the guidance of the Assistant U.S. Attorney or other appropriate DOJ official.

11.3.35.10  (01-01-2006)
Written Statement Required for Requests or Demands in Non-IRS Matters - Treasury Regulation 301.9000-5

  1. A request or demand for IRS records or information for use in a non-IRS matter shall be accompanied by a written statement made by or on behalf of the party seeking the testimony or disclosure of IRS records or information, setting forth:

    • A brief description of the parties to and subject matter of the proceeding and the issues

    • A summary of the testimony, records or information sought, the relevance to the proceeding, and the estimated volume of IRS records involved

    • The time that will be required to present the testimony (on both direct and cross-examination)

    • Whether any of the IRS records or information is a return or is return information (as defined in IRC §6103(b) or IRC §6105 tax convention information), and the statutory authority for the disclosure of such return or return information (and, if no consent to disclose pursuant to IRC §6103(c) accompanies the request or demand, the reason such consent is not necessary)

    • Whether a declaration by an IRS officer, employee, or contractor under penalties of perjury pursuant to 28 USC 1746 would suffice in lieu of deposition or trial testimony

    • Whether deposition or trial testimony is necessary in a situation in which IRS records may be authenticated under applicable rules of evidence and procedure

    • Whether IRS records or information are available from other sources

    • A statement that the request or demand allows a reasonable time (generally, at least fifteen business days) for compliance

  2. Permissible waiver of statement -The requirement of a written statement may be waived by the authorizing official for good cause.

  3. Failure to provide the written statement may result in IRS's opposition to the demand. See Treasury Regulation 301.9000-4(f).

11.3.35.11  (01-01-2006)
Recommending and Preparing Testimony and Production Authorizations

  1. Treasury Regulations 301.9000-1 through 301.9000-7 set forth the procedures under which IRS employees may disclose IRS information in response to a subpoena.

  2. The regulations establish the Commissioner's right to determine whether the disclosure should be made and how it should be made or limited in accordance with applicable statutes.

  3. The Disclosure Office and Chief Counsel are responsible for providing the Commissioner's authorizing official (see Delegation Order 11-2) with the pertinent facts necessary to make such determination.

  4. In submitting recommendations for and preparing testimony and production authorizations, disclosure personnel must take into account:

    1. If testimony or disclosure of IRS information would violate a Federal statute including, but not limited to the following:
      • IRC §6103 or IRC §6105
      • Privacy Act
      • Regulations such as 31 CFR 103.43
      • Re-Dissemination Guidelines covering reports, and information derived from, under BSA
      • Grand Jury Secrecy (Federal Rules of Criminal Procedure 6(e))

    2. If testimony or disclosure of IRS records or information would reveal classified national security information, unless properly declassified.

    3. Whether the disclosure is appropriate or relevant to the case under the rules of procedure governing the case or matter in which the subpoena arose.

    4. The availability or feasibility of producing the information or testimony sought (i.e., time limits and volume or format of documents).

    5. Whether testimony or disclosure of IRS information would reveal investigatory records or information compiled for law enforcement purposes that would permit interference with law enforcement proceedings or would disclose investigative techniques and procedures, the effectiveness of which could thereby be impaired.

    6. Whether disclosure might tend to reveal unrelated third party tax information or the identity of a confidential informant.

  5. Applicability of the above factors is usually evident from the information gathered in accordance with IRM 11.3.35.8 and IRM 11.3.35.10, and will serve as a basis for including specific limiting language in the proposed testimony and production authorization.

  6. Any applicable privilege or protection under law may be asserted in response to a request or demand for testimony or disclosure of IRS records or information, including, but not limited to, the following:

    • Attorney-client privilege

    • Attorney work product doctrine

    • Deliberative process (executive) privilege

  7. The authorization prepared for the appropriate approving official should, to the extent applicable, specifically indicate:

    • Names and locations

    • Court appearance date

    • Tax periods

    • Classes of tax or types of returns

    • The extent and limitations on disclosure

    • The operative facts upon which the authorization is premised (i.e., a description of the testimony and production sought, and the nature of the testimony and production authorized)

  8. It is imperative that the authorization be approved and the employee notified prior to the time the requested/subpoenaed employee is scheduled to appear in the judicial or administrative proceeding.

    Note:

    In all cases, a written authorization should be executed, forwarded to the employee, and included in the testimony file. However, in time-sensitive situations, the authorization may be given orally by the authorizing official. This fact will be documented in the testimony file.

  9. There is a general rule of cooperation among Federal agencies. Therefore, when the government is a party to the litigation, testimony is usually provided. Depending upon local policy, this cooperation may also extend to state or local governments.

  10. Normally, IRS resources should not be expended in private litigation. The Disclosure Office should offer alternate sources or methods of obtaining the requested data (e.g., routine uses of Privacy Act System of Records, Form 4506 or 4506-T, IRC §6103(c), or IRC §6103(e)). If any person makes a request or demand for IRS records or information in connection with a non-IRS matter, authorizing officials should take into account the following additional factors when responding to the request or demand:

    1. Whether the requester is a Federal agency, or a state or local government entity or agency.

    2. Whether the demand was issued by a Federal or state court, administrative agency or other authority.

    3. Where the IRS is not a party, whether the IRS has already been involved in some capacity (e.g., making disclosures under a Privacy Act routine use or providing documents/information in a Federal nontax criminal matter under IRC §6103(i)).

    4. The potential effect of the case on the administration of internal revenue laws or any other laws administered by or concerning the IRS.

    5. The importance of the legal issues presented.

    6. Whether the IRS records or information are available from other sources.

    7. The IRS's anticipated commitment of time and anticipated expenditure of funds necessary to comply with the request or demand.

    8. The number of similar requests and their cumulative effect on the expenditure of IRS resources.

    9. Whether the request or demand allows a reasonable time for compliance (generally, at least fifteen business days).

    10. Whether testimony or disclosure is appropriate under the rules of procedure governing the case or matter in which the request or demand arises.

    11. Whether the request or demand involves expert witness testimony.

    12. Whether the request or demand is for the testimony of an IRS employee or contractor who is without personal knowledge of relevant facts.

    13. Whether the request or demand is for the testimony of a presidential appointee or senior executive and whether the testimony of a lower-level official would suffice.

    14. Whether the procedures of Treasury Regulation 301.9000-5 have been followed.

    15. Any other relevant factors brought to the attention of the authorizing official.

  11. Requests for IRS expert testimony in non-tax matters will normally be denied. However, if the IRS has an interest in the issue and the outcome of the litigation, IRS employees may be authorized to testify. The Disclosure Manager will coordinate determinations of IRS interest with Chief Counsel and the involved function(s).

  12. However, when a determination is made that it is not in the IRS's interest to provide testimony, appropriate actions should be taken by the field Disclosure staff (request that the order be withdrawn, offer alternate information, etc.) or by Area Counsel to work through DOJ to have the subpoena quashed. Written notification should be supplied to the employee. See IRM 11.3.35.12(5).

11.3.35.12  (01-01-2006)
Testimony Considerations

  1. The key to handling testimony cases is obtaining timely and accurate information.

    Note:

    This point cannot be overemphasized.

  2. Disclosure personnel should speak to the attorney or requester responsible for serving the request or subpoena. This call should be used to:

    • Verify receipt of the subpoena

    • Determine additional background and scope of the subpoena ( See IRM 11.3.35.10)

    • Verify the time frame for the appearance/production of records and

    • Explain any disclosure complications

      Example:

      Some IRC §6103 disclosures may require written authorization.

      Example:

      An ex parte court order or other written request under IRC §6103(i) is necessary prior to testimony pursuant to IRC §6103(i)(4).

      Example:

      A subpoena for personnel records requires close analysis by Disclosure personnel in order to determine whether a routine use disclosure or the Privacy Act (b)(11) court order exception applies.

      Note:

      This call must be documented in the E-DIMS Case History Notes.

  3. To the extent possible, Disclosure personnel must attempt to avoid unnecessary appearances by IRS employees in judicial and administrative proceedings.

  4. If there are disclosure complications, Disclosure personnel should request that the issuing party withdraw the request/subpoena. Although a written statement of withdrawal is desirable, an oral statement by the requester to the effect that the IRS need not appear in response to his/her request/subpoena is generally sufficient to close out the case. A note to this effect should be included in the testimony file and in the E-DIMS case history notes. Disclosure personnel should send a letter confirming withdrawal to the requester.

  5. If the authorization to testify is denied, and the requester refuses to withdraw the request/subpoena, the authorizing official must give the employee written confirmation of the denial. A copy may be provided to the court when he/she respectfully declines to testify for lack of authorization as required by Treasury Regulation 301.9000-3.

    Note:

    See IRM 11.3.35.13(3).

  6. If there is insufficient time to gather and analyze the facts, prepare a report, and obtain an authorization, Disclosure personnel should contact the requester and inform him/her to this effect (or request that Area Counsel do so). The requester should be informed that the employee would appear if he/she insists, but that the employee will explain to the court or other authority that the request/subpoena was served at the last minute and that Treasury Regulation 301.9000-3 does not permit testimony or production of IRS information without the proper authorization. When confronted with this situation, the requester may seek a postponement, withdraw the subpoena, or still require the employee to appear.

  7. The use of certified documents is another way where appearance of an IRS employee at trial may be minimized. Offer the requester certified documents in lieu of appearance and testimony by an employee. The certified copies of returns and return information are admissible into evidence in accordance with IRC §6103(p)(2)(C) and IRC §7514.

    Note:

    See IRM 11.3.6, Seals and Certifications .

  8. Certified documents are particularly useful when tax returns are desired. If time allows, Disclosure personnel should:

    • Suggest that the requester withdraw a subpoena for returns and

    • Send a Form 4506, Request for Copy of Tax Return, to the appropriate Campus, checking the box on the form to request a certified copy for court purposes

      Note:

      RAIVS provides only ink stamp certifications.

  9. When information is provided pursuant to a subpoena, a note to this effect should be included in the testimony file and in the E-DIMS case history notes. Disclosure personnel may also send a letter to the requester explaining this action.

    Note:

    Responding to a request or demand for documents protected under the confidentiality statutes requires a testimony authorization even though the release is done with the owner's consent (e.g. IRC §6103(c) consent for tax records). However, no authorization is needed if it is made clear to the requester that the release is made pursuant only to the consent and that the IRS considers the demand/request withdrawn.

  10. Additionally, if a request/subpoena is served on more than one IRS employee, depending on the circumstances, the requester should be contacted to see if just one employee, or at least fewer employees, may appear.

    Note:

    If a request/subpoena is known to be served on more than one IRS office for the same documents, by the same requester, then the subpoenas should be grouped and worked in one office for consistency of response.

  11. If it is clear that an IRS employee will have to appear in court, depending on the circumstances of the case, contact the requester to see if he/she will agree to let the employee appear on a few hours' notice or at a specific time, rather than requiring appearance from the beginning of the proceeding.

  12. Returns and taxpayer return information initially provided under an (i) order require a finding under IRC §6103(i)(4)(A)(i), or an order under IRC §6103(i)(4)(A)(ii) in order to be disclosed in a proceeding.

    1. Return information other than returns and taxpayer return information, initially provided under an (i) order request, may be disclosed in a proceeding pursuant to IRC §6103(i)(4)(B) without a finding or an order.

    2. An IRS employee may testify about already disclosed (i) records and their meaning but may not make additional disclosures in testimony.

    3. A written testimony authorization may be required, depending on whether testimony is in conjunction with an IRS case and on who is requesting the testimony. The employee's testimony is limited to the disclosures already made under the (i) order request. The testimony is limited to that which has already been disclosed. However, see Treasury Regulation 301.6103(c)-1 for disclosure consents made in open court.

    4. Caution dictates that if a non-written authorization is needed, written advice about the limitations of the permitted testimony should be provided to the employee in the same format as a testimony authorization. If there is no assigned Chief Counsel attorney, the Disclosure Office should prepare the written advice.

11.3.35.13  (01-01-2006)
Disclosure Caveats

  1. Unless directed otherwise in the authorization instructions, employees may not testify regarding:

    • Information that may tend to identify a confidential informant

    • Unrelated third party tax information

    • Wagering tax information as defined in IRC §4424

    • Tax treaty (convention) information

    • Secret grand jury information

    Note:

    In such instances, seek assistance through Disclosure and Counsel channels if a problem develops.

  2. An IRS employee faced with a court order to testify or produce documents prior to receiving testimony and/or production authorization should respectfully decline to testify. The employee should explain to the court that Treasury Regulation 301.9000-3 does not permit him/her to testify or produce IRS information unless the employee has received authorization to testify or produce IRS information and that he/she is awaiting authorization. To the extent necessary, Disclosure or Chief Counsel personnel or Government counsel (usually an Assistant U.S. Attorney) should accompany the employee to explain the situation.

  3. An IRS employee faced with a court order to testify or produce documents with respect to information that is not authorized to be disclosed by the testimony and production authorization should respectfully decline to testify or produce documents with respect to those matters. If returns and return information are involved, the employee should explain to the court that disclosure could subject him/her to civil and criminal sanctions. Disclosure or Chief Counsel personnel, or Government counsel (usually an Assistant U.S. Attorney) should accompany the employee to explain the situation to the court.

  4. In nontax cases, the fact that a person presents a subpoena or other request or demand indicating he/she is the attorney for a taxpayer, is not sufficient to establish that person as the authorized representative of a taxpayer for purposes of disclosing confidential tax information. IRC §6103(c) and (e) require that a taxpayer consent in writing or in open court on the record to the disclosure of his/her confidential tax information. In tax cases, disclosure may be made where the requirements of IRC §6103(h)(4) are met.

  5. Prior to taking the stand as a government witness or a witness for the opposing party in a nontax civil or criminal proceeding, the subpoenaed employee should apprise Government counsel of the limits of the testimony authorization.

  6. Should Government counsel ignore IRS instructions and request testimony which clearly is beyond the scope of the authorization (e.g., testimony concerning third parties or confidential informants) or raise no objection when such testimony is requested by the opposing counsel, the employee should inform the court of any statutory restrictions on disclosure and of the testimony instructions issued by the IRS. The employee should be careful to not directly or indirectly disclose tax information (e.g., fact of filing) when making this explanation. If the line of questioning is pursued, the employee should request the court's permission to consult with IRS officials before responding. If the court refuses to grant permission and insists that the employee testify, the employee should respectfully decline to testify because statutory authority and/or IRS approval is lacking.

  7. Where the legality of the disclosure is questionable, such as when non-Government counsel moves for disclosure based on a constitutional premise as in Brady v. Maryland 373 U.S. 83 (1963) ( See IRM 11.3.35.14), the employee should be guided by Government counsel in providing testimony. In either situation, the IRS will support its employees in any " good faith" decision on their part about the propriety of their actions in protecting the confidentiality of IRS information.

  8. Any IRS officer, employee, or contractor who discloses IRS records or information without authorization under Treasury Regulation 301-9000-3, may be subject to administrative discipline, up to and including dismissal, applicable contractual sanctions and civil or criminal penalties, including prosecution under 5 USC 552(a) or IRC §7213.

11.3.35.14  (03-10-2009)
Brady v. Maryland and the Jencks Act

  1. In all criminal cases, the Government is under a constitutional obligation to disclose, upon the defendant's request, evidence material either to guilt or punishment (exculpatory evidence), Brady v. Maryland , 373 U.S. 83 (1963). This includes evidence that may be used to impeach or discredit a Government witness. Giglio v. United States, 405 U.S. 105 (1972). It also encompasses Henthorn material (information about the credibility and/ or integrity of a Government employee who will be called as a witness).

  2. The Brady rule does not however, require the Government to seek exculpatory material that is not already in its possession. The Brady decision does not require that the Government perform the defense's task of locating all exculpatory material; rather, the rule of the case is that if such material exists in the Government's files used for purposes of prosecuting the offense, the Government is prohibited from hiding such material from the defense.

  3. If the IRS is not one of the investigating agencies in a prosecution, there are no Brady obligations and Government employees may not disclose information in response to a Brady based order. Chief Counsel should be consulted regarding Brady based orders in cases where IRS is not one of the investigating agencies.

  4. When the IRS discloses returns and/or return information in response to a Brady based order (it can be written or oral but the sufficiency of an oral request should be coordinated with Chief Counsel), the IRS will seek a court order that limits the use of such information by the defendant to the particular proceedings. U.S. v. Moriarity , 69-1 USTC paragraph 9212 (Ed. Wisc. 1969), sets out the guidelines for this order.

  5. In such cases, the IRS will request that the judge inspect the returns and/or return information to determine whether disclosure to the defendant is constitutionally mandated.

    1. The production of any information that may identify, directly or indirectly, a confidential informant depends on the facts and circumstances in each case.

    2. Consideration must be given to such factors as the informant's relationship to the case, whether his/her life may be threatened by the disclosure, and the potential impact of nondisclosure on the Government's case.

    3. It is the policy of the IRS to protect the confidentiality of informants and any decision to release such information to the judge or in court is a matter of extreme sensitivity.

    4. If necessary, an IRS designee may testify about the contents of the returns and/or return information disclosed.

    Note:

    The designee usually will not be permitted to testify or produce documents that may reveal third party information not subject to the order or which would tend to identify, directly or indirectly, a confidential informant.

  6. The Jencks Act (18 USC 3500) relates only to pre-trial statements of Government witnesses in Federal criminal cases. Any such statements given to the Government relating to the subject matter of the witness' testimony must be provided to the defense.

  7. Disclosures of returns and return information under Jencks must be in a tax proceeding as provided in IRC §6103(h)(4)(D).

11.3.35.15  (01-01-2006)
Briefing the Employee Who Will Testify

  1. Disclosure personnel must advise the requested/subpoenaed employee of the authorization and the permissible scope of testimony and production of IRS information before the employee is scheduled to appear.

    Note:

    See Exhibit 11.3.35-2 that provides a briefing guide/handout to be used.

  2. The following items are examples of matters that might be addressed:

    1. The specifics of the testimony and production authorization; the particular records, tax entities and tax records that the employee may disclose.

    2. The need to segregate documents and not testify about matters not authorized for disclosure.

    3. The need to confine testimony to the limits of the authorization. Additional information (and personal opinions, unless authorized) should not be volunteered.

    4. During testimony, the need for employees to make sure that they understand a question and give the accompanying counsel time to raise any objections they might have before responding. If the employee does not understand a question or does not know the answer, he/she should say so.

    5. The employee's right to say that he or she cannot properly answer a question when a "yes or no" answer is requested without an explanation, if the "yes or no" answer could be misleading.

  3. Disclosure personnel will instruct all employees appearing in testimony cases in Federal and state courts and administrative proceedings other than IRS matters to provide feedback to the Disclosure Office regarding the nature of the testimony given and documents produced. Feedback may be provided in written or oral format.

  4. Feedback information will be documented in the E-DIMS Case History Notes and used by Disclosure personnel to close out the testimony file and, if necessary, account for disclosures and comply with the notice requirement of IRM 11.3.35.17.

11.3.35.16  (01-01-2006)
Accounting Requirements

  1. Use Form 5482 to meet the accounting requirements of the Privacy Act of 1974, at 5 USC 552a(c) when applicable (i.e., personnel records).

    Note:

    See IRM 11.3.19, Privacy Act Accounting for Disclosures .

  2. Use Form 5466-B to meet the accounting requirements of IRC §6103(p)(3) when applicable.

    Note:

    See IRM 11.3.37, Recordkeeping and Accounting for Disclosures.

11.3.35.17  (03-10-2009)
Notifying Individuals That Their Records Were Made Available to a Person Under Compulsory Legal Process

  1. The Privacy Act of 1974, at 5 USC 552a(e)(8), requires that each agency make reasonable efforts to serve notice on an individual when any record on that individual is made available to any person under a compulsory legal process when the process becomes a matter of public record.

  2. "Compulsory legal process" is:

    1. An order of a court of record, including an ex parte order pursuant to IRC §6103(i)(1), or

    2. A summons or a subpoena (whether for testimony or records, or both) issued by a judge or magistrate of a court of competent jurisdiction.

  3. It does not include interrogatories and motions for discovery unless in accordance with a court order enforcing such discovery.

  4. Except for (5), (6) and (7) below, appropriate Disclosure and Chief Counsel personnel in the office releasing documents or giving testimony about an individual pursuant to a compulsory legal process will ensure that a notice is issued to the individual indicating that information concerning him/her was made available pursuant to compulsory legal process. The notice should contain a summary of the information provided and should be provided within 5 working days of any record being made public.

  5. Whenever the individual whose information was made available under compulsory legal process is present in the judicial or administrative proceeding when that information is disclosed, the notice requirement set out in (4) may be considered satisfied and no additional notification is required. The case file will be noted that the individual was present at the time of disclosure.

    Example:

    The individual is a party, witness, or observer in the proceeding.

  6. If disclosure is in response to a grand jury subpoena or an ex parte order pursuant to IRC §6103(i)(1), notice should not be given until the subpoena or order becomes a matter of public record. If the subpoena or order does not indicate whether it is a matter of public record, it may be necessary to request the issuing authority to advise the IRS when the matter becomes public so that the required notice may be issued.

  7. Notification is not necessary where the compulsory legal process (whether or not a matter of public record) calls for information contained in a system of records which has been exempted from the requirements of 5 USC 552a(e)(8) pursuant to 5 USC 552a(j)(2).

    Example:

    A Criminal Investigation worksheet contained within Privacy Act System of Records 46.009, which is exempt under Section (j)(2) of the Privacy Act.

  8. Mailing the notice to the individuals last known address constitutes a reasonable effort to serve the notice.

  9. A copy of the notice shall be placed in the case file.

11.3.35.18  (01-01-2006)
Witness Fees

  1. In a non IRS matter, witness fees received with a subpoena, court order or other written request requiring testimony by an IRS employee or official should be turned over immediately to the Disclosure Office along with the subpoena and other court related material.

  2. Within 10 workdays, the Disclosure Office will forward the payment for deposit or return it to the requester, as appropriate. If deposited, the witness fees collected should be promptly forwarded to the appropriate office and coded with the proper accounting codes. If the check is payable to an employee, it must be endorsed prior to being forwarded.

  3. Payments may not be held longer than the ten workdays before forwarding to the appropriate fiscal management office. The 10-day limit will provide sufficient time to determine whether approval will be granted for the testimony and will eliminate having to issue a refund of the payment where the subpoena is withdrawn or quashed.

  4. If the subpoena is not withdrawn or if approval or denial of testimony is not made within the 10-day period, the payment should be deposited. The fiscal function will be notified to refund the payment if the subpoena is later withdrawn or quashed.

  5. Payment of witness fees is required prior to the appearance and testimony of an IRS employee when these fees are mandated under Federal or state laws. Where testimony is to be permitted and witness fees have not been paid, the Disclosure Office should contact the requester to secure payment.

  6. Witness fees held by the Disclosure Office pending disposition are high security items and must be protected in accordance with the security guidelines in IRM 1.16, Physical Security Program.

  7. If testimony is not allowed or the subpoena is withdrawn prior to the deposit of the fee, the Disclosure Office must return the payment to the requester.

Exhibit 11.3.35-1  (01-01-2006)
Form 6339 - Testimony Report

Testimony Report Received by:
Jane Walnut, Disclosure Manager
Date:
 
 2/1/08
1. Name of Contact:
 Bill Maple, Special Agent
2. Function:
        CI
3. Phone Number:
888-500-0000
4. Title of Case:
United States v. John X. Elm., et al
5. Type of Case:

Criminal (Federal Narcotics Violations)
6. Docket Number:
CR-XX00-00
7. Court Location:

 U.S. District Court, Northern District of [State/City/State]
8. Date & Time Testimony/Production Required:
10:00 a.m., Mon., 2/6/08
9. Subpoenaed/Requested Employee a. Name:
William Maple and Susan Willow
b Title:
Maple and Willow are Special Agents
c. Post of Duty:
[City/Address/other]
10. Subpoena/ Request served a. On behalf of:
 
b. By:
Jack Q. Oak, Assistant U.S. Attorney, City, State
11. Subpoena/ Request calls for:
 
-Copies of 2004-2006 income tax returns filed by defendants John Elm, Mary Elm and Harry Pine.
-Testimony and related records pertaining to wagering tax raid on Elm residence on 12/22/06.
12. Is subpoenaed/requested information available? (If yes, explain in item 19.)
 
13. Any confidential information or sensitivity? (If yes, explain in item 19.)
 
14. Any open Civil or Criminal Case? (If yes, explain in item 19.)
 
15. Would disclosure seriously impair Federal tax administration? (If yes, explain in item 19.)
 
16. Recommendation of Approving Official:
 
-Produce copies of returns and permit testimony to extent information is public record.
17. Recommended Scope of Authorization:
 
-Copies of returns to be produced pursuant to IRC §6103(i)(1) assuming approval under IRC §6103(i)(4) (see item 19). 
 
-Testimony and related records regarding wagering tax raid and seizure of narcotics (see item 19) authorized only to extent that they are a matter of public record. Any other wagering tax information is protected from disclosure by IRC §6103(o) and 4424.
 
-No information regarding identity of informant to be disclosed. No other returns or return information can be disclosed without waiver.
18. Rationale for recommended Authorization: 
19. Additional pertinent information and continuations of earlier items: 

Item 12 cont.- 
2004-2006 returns for Harry Pine are at FRC and may not be available by Monday. All other records are available.
 
Item 13 cont.-
There was an informant in the criminal tax investigation on the Elms; however, it is not anticipated that testimony will jeopardize the identity of the informant since the wagering information can be disclosed only to the extent it is public record information. No LEM or other sensitive material is present.
 
Item 14 cont.-
There is a closed criminal wagering tax case on the Elms for years 2001-2004 (case was closed without referral for prosecution).
 
During a wagering tax raid on the Elms' residence, Agents Maple and Willow seized a quantity of narcotics.
 
The AUSA has advised that we will be receiving an ex parte court order for returns under IRC §6103(i)(1) no later than COB 2/3/07.
 
Form 6339 (Rev. 12-1981) Department of Treasury Cat. No. 43289F Internal Revenue Service
 

Exhibit 11.3.35-2  (01-01-2006)
Testimony Considerations

  1. When an employee is required to testify and possibly disclose confidential information or any other job related information, the following items must be kept in mind:

    1. Specific authorization to testify or produce records is required in non-IRS matters (or in IRS matters where the request comes from a party other than the Government).

      Reminder:

      This authorization is not necessary when testifying on behalf of the Government in an IRS matter.

    2. A representative from the Disclosure Staff or Chief Counsel will obtain the authorization and brief the employee about the appearance.

    3. If necessary, employees can be accompanied by someone from Chief Counsel or the Office of the U.S. Attorney.

    4. The authorization will state the limits of testimony. Disclosure of confidential information is subject to the provisions of IRC §6103, the Privacy Act and legal privileges.

    Reminder:

    The provisions contained in this section, not the text in the subpoena or demand, will determine what confidential information may be provided in testimony.

  2. During testimony, follow the guidelines below:

    1. First and foremost, always tell the truth.

    2. Before answering a question, make sure you fully understand it.

    3. If you don't know the answer to a question, just say you don't know.

    4. If you can answer a question with a "yes" or "no" answer, you should do so.

    5. Some attorneys try to force a "yes" or " no" answer by a witness when further explanation is necessary. In such situations, state that the answer requires an explanation and the Court will ordinarily permit you to do so.

    6. Do not speculate with phrases like, "I think," "I believe," and "probably," when in fact you don't know. Again, if you don't know, just say you don't know.

  3. Employees are entitled to reimbursement for any travel expenses associated with an appearance, but any fees received from the requesting party must be turned over to the IRS.

    Note:

    The field Disclosure Office or Chief Counsel can help process any fees received.

  4. Employees will be asked to write a brief summary of their testimony or state why they were not required to testify.

  5. Any questions concerning a subpoena to testify, or to be deposed, should be directed to the field Disclosure Office.

  6. Do not volunteer any information concerning pending litigation to non-IRS Counsel without prior approval.


More Internal Revenue Manual