7.28.4  Public Inspection of Written Determinations Under IRC 6110

7.28.4.1  (06-30-2009)
Background

  1. This subsection provides a brief overview of the key statutory provisions governing the public inspection of written determinations.

7.28.4.1.1  (06-30-2009)
General Disclosure Background

  1. IRC 6103 provides the general rules regarding the confidentiality of all tax returns and tax return information. In the absence of other specific Code disclosure authorization, tax returns and tax return information are confidential. IRC 6103(a) prohibits officers and employees of the United States from disclosing returns or return information, whether obtained in the performance of duty or otherwise.

  2. IRC 6103 itself contains exceptions to the rule that tax returns and tax return information are confidential. Furthermore, there are two major statutory exceptions that govern the public disclosure of Exempt Organizations (EO) tax information. The exceptions are as follow:

    1. IRC 6104 sets forth specific rules for the disclosure of EO applications, rulings, determinations, and returns.

    2. IRC 6110 sets forth special disclosure rules and procedures for certain categories of rulings, determinations, and technical advice memorandums.

  3. This IRM section provides guidance pertaining to IRC 6110. For general disclosure information, refer to IRM 11.3.9, Disclosure of Official Information – Exempt Organizations.

7.28.4.1.2  (06-30-2009)
IRC 6110 Background

  1. IRC 6110 sets forth special disclosure rules that require the Internal Revenue Service to release for public inspection the text of written determinations and any background file documents.

  2. IRC 6110(c) provides for the deletion (redaction) of certain identifying details pertaining to written determinations and background file documents.

  3. Previously, Section 301.6110-1 of the Regulations provided an exception for the public disclosure of EO denials and revocations. However, on December 2, 2003, the D.C. Circuit ruled in Tax Analysts v. Internal Revenue Service, 350 F.3d 100 (D.C. Cir. 2003), that the ruling letters issued by the Exempt Organization’s division are written determinations as defined in section 6110(b)(2).

7.28.4.2  (06-30-2009)
General Definitions

  1. A written determination means a ruling, determination letter, or technical advice memorandum.

  2. A background file document with respect to a written determination includes the request for that written determination, any material submitted in support of the request, and any communication between the Service and persons outside the Service in connection with such written determination.

    Note:

    This does not include any communication between the Department of Justice and the Service relating to a pending civil or criminal case or investigation.

7.28.4.3  (06-30-2009)
Guidelines for Letters Subject to IRC 6110

  1. General Drafting Principles

    1. When writing a letter to an organization, refer to the organization as "you" in the body of the letter.

      Example:

      "You requested a ruling regarding section 4945…"

    2. Letters issued to organizations should not include identifying information. For disclosure purposes, a legend needs to be prepared. Choosing the legend wisely can often make the ruling more readable.

    3. Generally, capital letters should be used for the names of individuals, corporations, places, and businesses. Lower case letters should be used to represent certain numbers and, when used with the word "dollars, " to represent sums of money. Refrain from the use of A, a, and I when using letters.

    4. When referring to an individual or entity by letter designation, generic designations may be helpful identifiers.

      Example:


      • Taxpayer
      • Subordinate
      • Authorized representative
      • Corporation
      • Limited Liability Company or LLC
      • Limited Partnership.

    5. Specific dates should be used only if they contribute to the analysis and ultimate conclusion of the issue.

      Example:


      • The date of an organization’s incorporation may be significant to the ruling.
      • The reference of a general time frame such as "incorporated during the time of desegregation" can be an appropriate substitute for an actual date if the timeframe is significant to the ruling.

  2. Third Party Contacts

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

    2. All contacts that qualify as third-party communications under Treas. Reg. 301.6110-4 must be noted on the front page of the written determination. The third party annotation should be placed in the upper left corner and shall consist of the date on which the contact was made and the category of the person making the contact. Examples of these categories include:
      • Congressional
      • Department of Commerce
      • Department of Treasury
      • Trade Association
      • White House
      • Educational Institution

  3. Citation Formats

    1. When using the term federal income tax, the term "federal " is lower case.

    2. When first referring to the Code, state section ___ of the Internal Revenue Code ("Code" ). Subsequent referrals are stated as section ____of the Code. In a paragraph, the first reference is to section ___ of the Code, and subsequent references to the term "Code" in that same paragraph are section ___.

    3. When first referring to regulations, state the full citation. Subsequent references may be made to section ____of the regulations.

    4. The order when citing Law section should be:
      1) Code
      2) Related Regulations
      3) Revenue Rulings
      4) Court Cases

    5. The Code and related regulations should be in numerical order, even if it is not in the same order as the rulings requested.

      Example:

      If an organization originally requests exemption under section 501(c)(7) and is being denied under that subsection, as well as under section 501(c)(4), then reference to code section 501(c)(4) will be annotated before reference to section 501(c)(7).

    6. When shortening a reference, there should be both a parenthetical and quotation marks.

      Example:

      Internal Revenue Code (" Code" )

  4. Quotation Marks

    1. Quotations of fifty or more words are indented left and right without quotation marks.

    2. Quotations of forty-nine or fewer words are enclosed in quotation marks, but not otherwise set off from the rest of the text.

  5. Research

    1. Any research performed in connection with working the case is attached to the left-hand side of the file in accordance with IRM 7.20.2.6.3, Case File Information Not Open for Public Inspection.

    2. Research may include legislative history, private letter rulings, general counsel memoranda, IRS memorandums, revenue rulings, revenue procedures, etc.

7.28.4.4  (06-30-2009)
Guidelines for Deletion (Redaction)

  1. Before any written determination or background file document is made available for public inspection, certain information must be deleted (redacted). IRC 6110(c) provides a list of material to be redacted, which includes the following:

    1. the names, addresses, and other identifying details of the person to whom the written determination pertains and of any other person, other than a person with respect to whom a notation is made under IRC 6110(d)(1), identified in the written determination or any background file document;

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

    3. information specifically exempted from disclosure by any statute (other than this title) which is applicable to the Internal Revenue Service;

    4. trade secrets and commercial or financial information obtained from a person and privileged or confidential;

    5. information the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;

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

    7. geological and geophysical information and data, including maps, concerning wells.

  2. The most common deletions from IRC 6110 are the name, address, and other identifying details of the person to whom the written determination pertains.

  3. See Exhibit 7.28.4-1, Checklist for IRC 6110 Written Determinations – Adverse Determinations, which provides a detailed list and examples of material to be deleted.

7.28.4.5  (06-30-2009)
Procedures for Determination Specialists

  1. The followings types of cases are subject to the provisions of IRC 6110:

    1. Proposed Denial of Exemption (disclosure is not made until the denial becomes final)

    2. Advance Approval of Grant Making Procedures under IRC 4945(g)

    3. Set-asides under IRC 4942(g)(2)

    4. Advance Approval of Voter Registration Activities under IRC 4945(f)

    5. Advance Approval of Unusual Grants per Rev. Proc. 81-7

    6. Any additional type prescribed in Rev. Proc. 2009-4 (updated annually)

  2. Cases subject to the provisions of IRC 6110 are also subject to mandatory review. See IRM 7.20.5.4, Cases Subject to Review.

  3. Specialists will complete the following actions for proposed adverse determinations:

    1. Review the Checklist for IRC 6110 Written Determinations - Adverse Determinations, and complete items 1 - 5. See Exhibit 7.28.4-1.

    2. Contact the organization and explain IRC 6110 disclosure of their application and the proposed adverse determination letter.

    3. Prepare the appropriate proposed adverse determination letter and redacted copy of the proposed adverse determination letter as follows:
      • Locate all names, addresses, and other identifying details of persons to whom the written determination pertains.
      • Create a legend to designate identifying information in the letter. Generally, capital letters B, C, and M should be used for the names of individuals, corporations, places, and businesses. Lower case letters x and y should be used to represent certain numbers and, when used with the word "dollars," to represent sums of money.

      Note:

      Refer to 7.28.4.3, Guidelines for Letters Subject to IRC 6110 , for additional guidance.


      • Insert the legend on page one and replace the redactable information in the body of the letter with the appropriate letter designation.
      • Insert the Uniform Issue List (UIL) Index number on the first page.
      • Insert all contacts that qualify as third-party communications on the upper left corner of the letter, and include the date the contact was made and the category of the person making the contact, such as "Congressional," " Treasury," etc.
      • Record the following information about the contact in the case file:
      1) Mode of contact: phone, in-person, mail, other
      2) Name and title of contacting party
      3) Category of contacting party
      4) Date of contact
      5) Brief description of the discussion

      Note:

      Refer to 7.28.4.3, Guidelines for Letters Subject to IRC 6110; IRM 11.3.8.4.3, Third Party Contacts; and IRM 37.1.1.2.9, Communications from Third Parties, for additional guidance.


      • Add "Enclosure, Publication 892" on the last page.
      • Leave the name and contact number blank on the proposed adverse determination letter and redacted copy of the proposed adverse determination letter.
      • Leave the name and address of the organization blank on the redacted copy of the proposed adverse determination letter. Use a generic description for the identifying information in the legend.

      Example:

      B = President, C = Secretary, M = Name of Organization, X = Name of Corporation


      • Save the proposed adverse determination letter, the redacted copy of the proposed adverse determination letter, and the Checklist for IRC 6110 Written Determinations, using the common format that begins with the EIN followed by the type of letter or form.

      Example:

      nn-nnnnnnn Proposed adverse redacted, nn-nnnnnnn Checklist and nn-nnnnnnn Proposed adverse

    4. After managerial concurrence, send the documents via encrypted e-mail to the QA Mailbox located at *TE/GE-EO-Determinations-QA. The subject line of the e-mail should only include the type of composed letter and, if applicable, the specialty category.

    5. Complete Form 3198-A indicating Mandatory Review required and identifying the case as adverse. If applicable, identify specialty cases. For example, Adverse - Partnership, Adverse - LLC.

  4. Specialists will complete the following actions for advance approval of grant making procedures under IRC 4945(g), set-asides under IRC 4942(g)(2), advance approval of voter registration activities under IRC 4945(f), and advance approval of unusual grants:

    1. Review the Checklist for IRC 6110 Written Determinations – Other, and complete items 1 - 5. See Exhibit 7.28.4-2.

    2. Contact the organization and explain IRC 6110 disclosure, solicit proposed deletions, and resolve any disputes.

    3. Prepare the appropriate approval letter and redacted copy and the redacted copy of the approval letter as follows:
      • Locate all names, addresses, and other identifying details of persons to whom the written determination pertains.
      • Create a legend to designate identifying information in the letter. Refer to (3)(c) above for additional detail.
      • Insert the legend on page one and replace the redactable information in the body of the letter with the appropriate letter designation.
      • Insert the Uniform Issue List (UIL) Index number on the first page.
      • Include the name of the specialist and the toll-free telephone number on the approval letter.
      • Insert all contacts that qualify as third-party communications on the upper left corner of the letter, and include the date the contact was made and the category of the person making the contact, such as " Congressional," "Treasury," etc.
      • Record the following information about the contact in the case file:
      1) Mode of contact: phone, in-person, mail, other
      2) Name and title of contacting party
      3) Category of contacting party
      4) Date of contact
      5) Brief description of the discussion

      Note:

      Refer to 7.28.4.3, Guidelines for Letters Subject to IRC 6110; IRM 11.3.8.4.3, Third Party Contacts; and IRM 37.1.1.2.9, Communications from Third Parties, for additional guidance.


      • Leave the name and address of the organization blank on the redacted copy of the proposed adverse determination letter. Use a generic description for the identifying information in the legend.

      Example:

      M = Name of Organization, N= Name of Scholarship Program


      • Save the approval letter, the redacted copy of the approval letter, and the Checklist for IRC 6110 Written Determinations, using the common format that begins with the EIN followed by the type of letter or form.

      Example:

      nn-nnnnnnn Advance Approval 4945g redacted, nn-nnnnnnn Checklist and nn-nnnnnnn Advance Approval 4945g

    4. Send the documents via encrypted e-mail to the QA Mailbox located at *TE/GE-EO-Determinations-QA. The subject line of the e-mail should only include the type of composed letter and, if applicable, the specialty category.

    5. Complete Form 3198-A indicating Mandatory Review required and identifying the case as IRC 4945(g), IRC4945(g)(2), IRC 4945(g)(f), or Advance Approval Unusual Grants.

7.28.4.6  (06-30-2009)
Procedures for Quality Assurance

  1. Quality Assurance reviews cases that are subject to the provisions of IRC 6110.

  2. Quality Assurance will complete the following actions for proposed adverse determination cases:

    1. The reviewer will ensure the proposed adverse determination letter includes:
      • A properly completed legend with information that should be redacted according to IRC 6110 disclosure procedures
      • Name and contact telephone number of the reviewer
      • The correct Uniform Issue List (UIL) Index number on the first page
      • Any third party communications on the first page
      • Enclosure, Publication 892, on the last page.

    2. The Quality Assurance Group Secretary ("secretary" ) will mail the proposed adverse determination letter via certified mail, update the status of the case to indicate the 30-day proposed adverse letter was mailed, and place the case file in the designated location for the required period of time. If a protest is received during the required time period, the reviewer will take the appropriate action outlined in item (e) below.

    3. If there is no protest from the organization, the case will be returned to the reviewer for closing.
      • The reviewer will confirm receipt of the certified letter. A telephone call may be placed to confirm receipt.
      • The reviewer will complete items 6 – 9 of the Checklist for IRC 6110 Written Determinations – Adverse Determinations and ensure all other items are properly completed. See Exhibit 7.28.4-1.
      • The reviewer will prepare the redacted final adverse determination letter, final adverse determination letter, redacted proposed adverse determination letter, and Form 437, Notice of Intention to Disclose (" Notice 437" ). The reviewer will redact the reviewer’s name and contact telephone number. These documents, along with the Checklist for IRC 6110 Written Determinations, will be saved using the common format that begins with the EIN followed by the type of letter or form.

      Example:

      nn-nnnnnnn Proposed adverse redacted, nn-nnnnnnn Notice 437, and nn-nnnnnn Proposed adverse, nn-nnnnnnn Final redacted, and nn-nnnnnnn Final.


      • The reviewer will e-mail the redacted final adverse letter, redacted proposed adverse letter, final adverse, proposed adverse letter, Notice 437, and the Checklist for IRC 6110 Written Determinations via encrypted e-mail to the designated Legal Assistants of the Disclosure and Litigation Support Branch. The subject line of the e-mail should state "IRC 6110 package. "

      Note:

      If the redacted final adverse determination letter, final adverse determination letter, redacted proposed adverse determination letter, and Notice 437 are returned as undeliverable mail, then the reviewer will notify the designated Legal Assistants of the Disclosure and Litigation Support Branch via encrypted e-mail. The subject line of the e-mail should state " Undeliverable Mail."


      • The reviewer will complete and/or analyze any appropriate follow-up forms. This may include referral to Review of Operations (ROO), completing Form 5666 -TE/GE Referral, processing Form 1120, or any other appropriate follow-up based on the facts and circumstances of the case.
      • The reviewer will complete the Quality Assurance Determination Case Processing Instruction Sheet to instruct the secretary to close the case status 02 and forward the case to the TE/GE Processing Office.

    4. If the organization requests an extension of time to submit a protest, the reviewer will consider the reasons given, the length of time, and other relevant facts. The reviewer will document his/her decision and, as appropriate, notify the organization. Multiple or lengthy requests for extensions should be discussed with the Manager EODQA.

    5. If the organization submits a valid protest as outlined in the proposed adverse determination letter, the reviewer will forward the case to Appeals. See IRM 7.20.5.6.1, Response to Adverse Letter, for detailed procedures to determine if a protest is valid. The reviewer will complete the following to forward the case to Appeals:
      • Prepare a letter for the organization stating that the case was sent to Appeals.
      • E-mail the redacted proposed adverse letter, proposed adverse letter, and the Checklist for IRC 6110 Written Determinations via encrypted e-mail to the Quality Assurance (QA) Mailbox located at *TE/GE-EO-Determinations-QA.
      • Complete the Quality Assurance Determination Case Processing Instruction Sheet to instruct the secretary to update the case to status 54, retrieve the e-mail from the QA Mailbox, send the encrypted e-mail to the Appeals Secretary, and forward the case to Appeals.

    6. If Appeals overturns the proposed adverse determination, then IRC 6110 is not applicable. The application, the favorable determination, and other correspondence between the organization and the IRS will be open to public inspection under IRC 6104. See IRM 7.20.5.6.2, Adverse Letters Returned from Appeals; IRM 8.78, Appeals Tax Exempt and Government Entities Cases; and IRM 11.3.9, Disclosure of Official Information – Exempt Organizations.

    7. If Appeals upholds the proposed adverse determination, the reviewer will complete the following:
      • Prepare Form 5456 to inform the group manager/specialist of the Appeals decision and, if applicable, recommend other necessary actions.
      • Complete the Quality Assurance Determination Case Processing Instruction Sheet to instruct the secretary to close the case status 02 and forward the case to the TE/GE Processing Office.

  3. Quality Assurance will complete the following actions for advance approval of grant making procedures under IRC 4945(g), set-asides under IRC 4942(g)(2), advance approval of voter registration activities under IRC 4945(f), and advance approval of unusual grants cases that are ready for approval:

    1. The reviewer will analyze the letter and case file. The reviewer will ensure the appropriate approval letter has been prepared by the specialist. The letter should include the name of the specialist as the person to contact and the toll-free telephone number.

    2. The reviewer will ensure the redacted letter contains a legend that includes information that should be redacted according to IRC 6110 disclosure procedures. The reviewer will redact the name of the specialist and the contact telephone number. The reviewer will complete the Checklist for IRC 6110 Written Determinations.

    3. The reviewer will complete Notice 437.

    4. The approval letter, redacted letter, Notice 437, and Checklist for IRC 6110 Written Determinations will be saved using the common format that begins with the EIN followed by the type of letter or form.

      Example:

      nn-nnnnnnn Advance Approval 4945g redacted; nn-nnnnnnn Notice 437; IRC 6110 Checklist and nn-nnnnnn Advance Approval 4945g.

    5. The reviewer will e-mail the redacted approval letter, approval letter, Notice 437, and the Checklist for IRC 6110 Written Determinations via encrypted e-mail to the designated Legal Assistants of the Disclosure and Litigation Support Branch. The subject line of the e-mail should state " IRC 6110 package."

      Note:

      If the redacted approval letter, approval letter, and Notice 437 are returned as undeliverable mail, then the reviewer will notify the designated Legal Assistants of the Disclosure and Litigation Support Branch via encrypted e-mail. The subject line of the e-mail should state "Undeliverable Mail."

    6. The reviewer will complete the Quality Assurance Determination Case Processing Instruction Sheet to instruct the secretary to close the case status 01 and forward the case to the TE/GE Processing Office.

7.28.4.7  (06-30-2009)
Procedures for TE/GE, EO Determinations, Programs and Support Group

  1. Upon specific written request, the public may request a redacted copy of the background file documents for written determinations which have been released for public inspection. The Disclosure and Litigation Support Branch within the Legal Processing Division, Office of the Associate Chief Counsel (Procedure and Administration), is responsible for processing this type of written request.

  2. The Disclosure and Litigation Support Branch will contact the TE/GE, EO Determinations, Programs and Support Group, upon receipt of a written request for background file documents for a written determination issued by EO Determinations.

  3. The Programs and Support Group will complete the following:

    1. Locate the determination case or the DVD of the case.

    2. Photocopy the right side of the case file or print a copy of the right side of the case file from the DVD.

    3. Redact all identifying information. This may require contact with the determination specialist that was assigned to the case.

    4. Mail the redacted copy of the background file documents to the following address:
      Internal Revenue Service
      Disclosure & Litigation Support Branch
      PO Box 7604
      Washington, DC 20044

Exhibit 7.28.4-1  (06-30-2009)
Checklist for IRC 6110 Written Determinations — Adverse Determinations

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Exhibit 7.28.4-2  (06-30-2009)
Checklist for IRC 6110 Written Determinations — Other

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