9.3.1  Disclosure (Cont. 1)

9.3.1.9 
REPORTING VIOLATIONS OF CRIMES OUTSIDE OF THE JURISDICTION OF IRS

9.3.1.9.1 
Reporting Possible Violations of Federal, State, and Local Criminal Laws

9.3.1.9.1.2  (04-13-2005)
Emergency Circumstances

  1. Title 26 USC §6103(i)(3)(B) contains provisions by which relevant return information may be disclosed in situations involving imminent danger of death or physical injury to any individual. Such situations may include imminent danger of death or physical injury due to a terrorist incident, threat, or activity. Criminal Investigation special agents are authorized to make an immediate determination and subsequent disclosures to the extent necessary to appraise appropriate officers or employees of any Federal or state law enforcement agency of such circumstances pursuant to 26 USC §6103(i)(3)(B)(i). In addressing immediate disclosures of this nature, and if time permits, CI personnel should consult with their local Disclosure Official.

  2. For purposes of an imminent danger disclosure, both taxpayer and other than taxpayer return information may be disclosed. Disclosure is limited to only that data which is needed to stop the imminent danger. Returns cannot be disclosed, although data may be extracted from the returns for purposes of making a 26 USC §6103(i)(3)(B) disclosure.

  3. If additional information beyond that which is necessary to stop the imminent danger is needed for a non-tax Federal criminal investigation, an ex parte court order must be obtained.

9.3.1.9.1.3  (04-13-2005)
Non-Tax Crime Information (Witnessed or Received Orally or in Writing) Not Related to Tax Violations

  1. RESERVED

9.3.1.9.2  (04-13-2005)
Terrorism-Related Provisions of 26 USC §6103(i)

  1. This subsection describes what can be revealed if the information is offered by the IRS or requested by another agency.

    Note:

    These provisions expired 12-31-03. As of March 2004 they have not been extended.

9.3.1.9.2.1  (04-13-2005)
Disclosure of Information to Appropriate Officials

  1. Title 26 USC §6103(i)(3)(C) allows IRS on its own volition to disclose in writing return information (other than taxpayer return information) that may be related to a terrorist incident, threat, or activity to the extent necessary to apprise the head of the appropriate investigating/responding Federal law enforcement agency. For purposes of this section, taxpayer identity information is not considered taxpayer return information. The head of the agency may redisclose such information to officers and employees of such agency to the extent necessary to investigate or respond to the terrorist incident, threat, or activity.

  2. The IRS will furnish information involving substantive narcotics violations either directly to the DEA; the FBI; or to the Assistant Attorney General, Criminal Division, DOJ, in accordance with the disclosure laws and regulations. (The Attorney General assigned jurisdiction to the FBI to investigate Federal drug offenses effective January 21, 1982).

9.3.1.9.2.2  (09-25-2006)
Requested by Another Federal Agency

  1. All terrorism-related requests by other Federal agencies for returns or return information will be forwarded to the Disclosure Coordinator for Antiterrorism Disclosures. Except for imminent danger situations (see (6) below), the authority to make terrorism-related disclosures of returns and return information pursuant to the 26 USC §6103(i) provisions has only been delegated to Disclosure personnel.

  2. 26 USC §6103(i)(7)(A) allows IRS to disclose return information (other than taxpayer return information) upon the written request of the head (or his/her delegate) of a Federal law enforcement agency that is personally and directly engaged in the response to or investigation of any terrorist incident, threat, or activity. A taxpayer's identity is not considered taxpayer return information for this purpose. Such written request must set forth the specific reason(s) why such disclosure may be relevant to a terrorist incident, threat or activity. Limited redisclosure is permitted by state or local law enforcement employees who are part of a team with the Federal law enforcement agency involved in such a response/investigation.

  3. Title 26 USC §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 US Secret Service, if such 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. Such written request must set forth the specific reason(s) why such disclosure may be relevant to a terrorist incident, threat, or activity. Disclosures under 26 USC §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. Such disclosures may be made solely for the use of such officers and employees in such an investigation, collection, or analysis.

  4. Title 26 USC §6103(i)(7)(C) sets up an ex parte court order process similar to 26 USC §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. Such disclosures may be made solely for the use of such officers and employees in the investigation, response, or analysis, and, subject to 26 USC §6103(i)(4), in any judicial, administrative, or grand jury proceedings pertaining to the terrorist incident, threat, or activity. The application for the order must be approved by the Attorney General, Deputy Attorney General, Associate Attorney General, and Assistant Attorney General, or any US Attorney. In granting the order, the judge/magistrate must determine that there is reasonable cause to believe, based on information found to be reliable, that the return or return information may be relevant to a matter relating to such 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 involving a terrorist incident, threat, or related activity.

  5. Title 26 USC §6103(i)(7)(D) allows the Commissioner of Internal Revenue to authorize an application for an ex parte order described in 26 USC §6103(i)(7)(C). In granting the order, the Federal district court judge/magistrate must determine that, on the basis of the facts submitted by the applicant, there is a reasonable cause to believe, based upon information believed to be reliable, that the return information may be relevant to a matter involving a terrorist incident, threat, or activity. Information may be disclosed pursuant to 26 USC §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 solely for use in a Federal investigation, analysis, or proceeding concerning a terrorist incident, threat, or activity. The IRS disclosures to DOJ, made in support of an application for an ex parte order described in 26 USC §6103(i)(7)(D), are authorized under 26 USC §6103(i)(3)(C)(ii).

  6. Pursuant to 26 USC §6103(i)(3)(C)(i), in situations involving imminent danger of death or physical injury to any individual, CI special agents and TIGTA special agents are authorized to make immediate determination and subsequent disclosures to the extent necessary to apprise appropriate officers or employees of any Federal or state law enforcement agency of the potential danger. This procedure is discussed in IRM 9.3.1.9.1.2.

9.3.1.9.3  (09-25-2006)
Source of Information

  1. Other considerations may prohibit the disclosure of tax information for non-tax criminal purposes. This includes:

    1. information which would identify a confidential informant or seriously impair a civil or criminal tax investigation

    2. information obtained under a tax treaty

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

    4. information obtained from, or on behalf of, a grand jury proceeding, unless a valid court order permitting the use of such information has been issued under the USCS Fed Rules Crim Proc R 6(e)

    5. other information that cannot be disclosed under 18 USC §1905

9.3.1.9.4  (09-25-2006)
Situations Which May Require Disclosure

  1. Return information (other than taxpayer return information) relating to the commission of non-tax Federal criminal offenses or violations of non-tax Federal criminal laws, which is obtained by a special agent during the course of an official investigation, will be reported by memorandum to the SAC (see IRM 9.3.1.9.1.1) and may be disclosed pursuant to 26 USC §6103(i)(3)(A) by officials authorized under Delegation Order 11-2 (formerly Delegation Order 156 (Rev. 17)).

9.3.1.9.4.1  (04-13-2005)
Emergencies

  1. In emergency circumstances involving the imminent danger of death or physical injury to any individual, the Secretary may disclose return information to the extent necessary to apprise appropriate officers and employees of any Federal or state law enforcement agency (26 USC §6103(i)(3)(B)(i)), see IRM 9.3.1.9.1.2 for further discussion.

  2. In emergency circumstances involving flight from Federal prosecution, the Secretary may disclose return information to the extent necessary to apprise appropriate officers or employees of any Federal law enforcement agency (26 USC §6103(I)(3)(B)(ii)). Special Agents in Charge have 26 USC §6103(i)(3)(B)(ii) disclosure authority.

9.3.1.9.4.2  (04-13-2005)
Threats To The President and Certain Government Officials

  1. The US Secret Service is charged with the responsibility of protecting the President and certain other government officials and public figures, including:

    1. members of the President’s immediate family

    2. the President-elect

    3. the Vice President or other officer next in the order of succession to the Office of President

    4. former Presidents

    5. the wife, widow, and minor children of former Presidents

    6. Presidential and Vice Presidential candidates

    7. visiting heads of foreign states or foreign governments

  2. The Executive Protection Service, under the direction of the US Secret Service, is responsible for the protection of the Executive Mansion and foreign diplomatic missions in the District of Columbia metropolitan area.

  3. Any employee who receives information either orally or in writing which indicates a potential threat to the health or safety of one of the individuals in (1) above should report the information immediately by telephone to the nearest US Secret Service office or to the US Secret Service Intelligence Division, Washington, DC.

  4. If an employee discloses information as described in (3) above, he/she shall prepare a memorandum setting forth all the facts disclosed, together with any other facts bearing on the matter and full details as to the circumstances under which such information was acquired. The memorandum should be transmitted immediately to the SAC and a copy should be forwarded to the local Disclosure Officer who will prepare any necessary 26 USC §6103(p)(3) accounting forms.

9.3.1.9.4.3  (04-13-2005)
Reporting Other Information of Interest to the Secret Service

  1. The US Secret Service is also charged with the responsibility of identifying individuals or groups who may be involved in the following activities:

    1. the use of bodily harm, assassination, or kidnapping as a political weapon. This includes training and techniques used to carry out the act

    2. persons or groups who insist upon personally contacting high government officials for redress of imaginary grievances, etc

    3. any person who makes oral or written threatening, irrational, or abusive statements about high government officials

    4. professional gate crashers

    5. terrorists (individuals, groups) and their activities (bombing, etc.)

    6. the ownership or concealment by individuals or groups of caches of firearms, explosives, or other implements of war, when it is believed that their intended use is for other than legal purposes

    7. anti-American or anti-US government demonstrations in the United States or overseas

    8. information regarding civil disturbances

    9. counterfeiting of US or foreign obligations, i.e., currency, coins, stamps, bonds, US Treasurer’s checks, Treasury securities, Department of Agriculture Food Stamp coupons, etc

    10. the forgery, alteration, and fraudulent negotiation of US Treasurer’s checks, US Government bonds and Government Travel Requests (GTR’s)

  2. When the US Secret Service requests information concerning any of their responsibilities as described in (1) above when investigating threats against the President, disclosure can only be made to the US Secret Service by those individuals so authorized in Delegation Order 156.

  3. Any disclosure made under (2) above is limited by the provisions of 26 USC §6103.

  4. In all instances, the person making the referral will prepare and submit a memorandum detailing the information disclosed and the basis for the disclosure. The memorandum will be forwarded through the head of the office to the responsible Disclosure Officer.

9.3.1.9.4.4  (04-13-2005)
Forgery of a United States Government Check

  1. The local Disclosure Officer should be contacted in those instances whenever information is received or discovered which indicates a forged United States government tax refund check is involved in an investigation within the investigative jurisdiction of CI (including any investigation involving checks issued to fictitious payees).

    Note:

    Currently the SAC cannot make disclosure to the Secret Service as it is not an agency of the Department of the Treasury.

  2. In order to protect the development by CI of a possible criminal tax investigation, the US Secret Service will make:

    • no investigation in the forgery case until such action has been coordinated with CI

    • no consultation with the United States Attorney until such consultation can be done jointly with representatives of CI or until such consultation has been coordinated with the SAC

    • no action on any question of settlement of the forgery case until such action is agreeable with CI

  3. Copies of pertinent affidavits, handwriting exemplars, personal and criminal history, and other items of interest will be made immediately available by each agency to the other investigating agency, and each agency will keep the other informed of the progress of the investigation being made to avoid unnecessary duplication of effort.

  4. Disclosure regarding US government checks, other than tax refund checks, must be made pursuant to the guidelines contained in IRM 9.3.1.9.1.

9.3.1.9.4.5  (04-13-2005)
Diversion of Nuclear Material

  1. Information concerning potential diversion of nuclear material should be immediately reported by the special agent to his/her SSA who will transmit the information at once to the nearest FBI field office and, as soon as practicable, to the SAC.

  2. In all instances, the SSA making the referral will prepare a written report containing:

    1. all the information furnished to the FBI

    2. the name and title of the person to whom the information was given

    3. time and date of the referral

  3. This report should be forwarded by the SAC to the Chief, CI, as confirmation of the telephone referral. If this information is return information, the procedures in IRM 9.3.1.9.1 should be followed. In emergency situations, the Disclosure Officer should be contacted immediately so that he/she may contact the Office of Governmental Liaison and Disclosure for consultation, if necessary.

9.3.1.9.4.6  (12-02-2005)
Impersonations of a Federal Officer

  1. The Treasury Inspector General for Tax Administration (TIGTA) is charged with the responsibility to investigate charges against persons alleged to be impersonating employees of the IRS or wrongly using IRS seals or other identifying marks. All allegations of this nature should be reported promptly to TIGTA.

9.3.1.9.4.7  (09-25-2006)
Violations of Law Involving Serious Crimes by Informants Not Connected with a IRS Assignment

  1. Whenever the IRS has knowledge of the actual commission of a serious crime not connected with a IRS assignment by a CI/CW, the SAC shall make a determination of the advisability of notifying appropriate law enforcement authorities in accordance with IRM 11.3, Disclosure of Official Information. For the purpose of these IRM procedures, the phrase, " serious crime," means any crime which is a felony under Federal or state law.

  2. Approval of the Director, Field Operations will be required when it is advisable not to notify another law enforcement agency. In such cases, the SAC will notify the Director, Field Operations, by memorandum, of the facts and circumstances concerning the informant’s law violation and also provide a recommendation on reporting the violation and on continued use of the CI/CW.

  3. In determining the advisability of notifying appropriate law enforcement authorities of criminal activity by a CI/CW, the reviewing or approving officials, as appropriate, shall consider the following factors:

    1. the seriousness of the crime in terms of danger to life and property

    2. the degree of certainty of the information regarding the criminal activity

    3. whether the appropriate authorities already know of the criminal activity and the CI/CW's informant’s identity

    4. the degree to which notification would endanger the life of the CI/CW or any other person.

  4. Disclosures involving tax information must follow the procedures (see IRM 9.3.1.9).

9.3.1.10  (09-25-2006)
LIAISON DUTIES

  1. In all liaison contacts, IRS personnel shall adhere to existing disclosure provisions, particularly 26 USC §4424 and 26 USC §6103. Also, see IRM 9.3.1.9.

9.3.1.10.1  (04-13-2005)
Liaison with State and Local Law Enforcement Officials

  1. The SAC shall maintain liaison with local and state law enforcement officials to identify violations which warrant action by CI and to keep current in regard to enforcement problems in his/her office.

9.3.1.10.2  (04-13-2005)
Liaison with Other Federal Agencies

  1. The SAC will meet with other agencies to set up direct lines of communication for overall cooperation aimed at enhancing the respective law enforcement efforts of both agencies, including all civil and criminal aspects of financial crimes. Information will be obtained at the local level on an investigation-by-investigation basis, only as authorized by 26 USC §6103.

  2. The SAC will brief local Federal law enforcement officials on the disclosure provisions contained in the wagering law (26 USC §4424); those implemented through the Tax Reform Act of 1976 (26 USC §6103); and the implications of these provisions upon the IRS disclosure of information to other Federal agencies and the IRS procedures for informing other agencies of non-tax violations. The SAC will ensure that special agents follow the procedures set out in IRM 9.3.1.9 regarding indications of other Federal violations observed during an investigation.

9.3.1.10.3  (09-25-2006)
Disclosure of Information Received From Other Federal Law Enforcement Agencies

  1. The IRS is authorized by other Federal law enforcement agencies to receive certain information and reports from their investigative files. Access to information or reports received from other Federal investigative agencies should be limited to IRS personnel who require the information in the performance of their official duties.

  2. Unless specifically provided for under 26 USC §6103 or other laws or regulations, reports of investigations or other information received from other Federal agencies will not be:

    1. made available to the subject of an investigation, his/her attorney, or any other representative in connection with any official or private litigation

    2. introduced into evidence (example presentencing reports)

    3. incorporated into any paper or record of a court or other proceeding, which the subject, his/her attorney, or other representative have a right to see

  3. During inquiries conducted by CI involving information received from another law enforcement agency, there should be no disclosure to any person that his/her name was obtained from or that he/she is mentioned in any report or information obtained from that agency, unless specifically provided for under 26 USC §6103 or other laws or regulations.

  4. Reports received from other Federal enforcement agencies shall be maintained in secure storage facilities (see IRM 1.16.8, Emergency Planning and Incident Reporting). Sufficient records shall be maintained to show the name and position of each individual who inspects such a report, the date of the inspection, and the purpose of the inspection. Such reports shall not be removed from CI custody and no copies of any such reports shall be made.

  5. Any information or leads obtained from such reports shall be developed by independent investigation, and such reports shall not be used as exhibits or mentioned in final reports.

  6. No action shall be taken which identifies informants or investigative techniques employed by other Federal agencies.

  7. Such reports shall be returned upon request or when existing operating procedures require that such reports be returned to the agency involved. The report must be returned prior to submission of the special agent’s final report.

  8. Upon receipt of financial information from other Federal agencies involving a completed investigations, which contains possible tax related information, e.g., evidence of gross wagers received by a gambling operation reflecting a liability for wagering excise and income tax or evidence of income by an individual from embezzlement, bribery, extortion, or shylocking, an information item will be prepared. The information item will be evaluated for criminal potential. If criminal potential does not exist, the information item will be forwarded to the appropriate civil operating division provided that it does not contain grand jury information.

9.3.1.10.4  (04-13-2005)
Details of CI Employees to Other Agencies

  1. The Chief, CI; Director, Field Operations; or the SAC will provide a letter of notification to his/her employees who are detailed to other agencies. Exhibit 9.11.3–4 found in IRM 9.11.3, Investigative Property, is an example of such a letter.

  2. The letter should address issues of access to tax returns and return information. Access to tax returns and return information is authorized for those official duties which require disclosure for tax administration purposes. Access for other matters is governed by the provisions of 26 USC §6103(i).

  3. The letter must also address the use of IRS pocket commissions and enforcement badges. They may be used for official identification purposes, but the letter will clarify the advice IRS employees should give those contacted (see IRM 9.5.2, Grand Jury Investigations).

  4. Employees who have a need to know the details will receive an information copy of the appointment letter.

9.3.1.11  (09-25-2006)
SUBPOENAS SERVED ON CI EMPLOYEES AND REQUESTS TO TESTIFY

  1. Periodically, employees of CI are served with subpoenas to produce Internal Revenue records, information, or testify in a judicial or administrative proceeding. Treasury Regulation 301.9000–1 requires IRS employees to obtain appropriate authorization before they comply with a subpoena.

  2. The authorities permitted to approve the testimony or production of record vary with the type of request. See Delegation Order 11-2, Authority to Permit Disclosure of Tax Information and to Permit Testimony or the Production of Documents.

9.3.1.11.1  (04-13-2005)
IRS Tax Administration Proceedings

  1. An exception to the general rule is that no authorization is needed when testimony or production of records is requested by the attorney for the government in a tax administration investigation, e.g., testifying for the government in a criminal tax investigation or Tax Court case. However, authorization is needed when testimony or records are sought by a party to the litigation other than the government (e.g., the defense in a criminal investigation, a petitioner in a US Tax Court case, the plaintiff in a Federal tort claims case against an IRS employee, or the plaintiff in a refund litigation case).

  2. If the request to testify or produce information in a tax proceeding comes from someone other that the attorney for the government, contact CT Counsel immediately. Criminal Tax Counsel is responsible for preparing the authorization for approval and signature in this type of situation.

9.3.1.11.2  (04-26-1999)
Subpoenas Requesting Grand Jury Information

  1. Subpoenas and requests for information and documents obtained during a grand jury investigation should be referred to the attorney for the government in order to comply with the requirements of Fed R Crim P R6(e).

    Note:

    Be aware that if any of the information was collected during the administrative phase of the investigation, IRS may have to authorize the release of that portion of the information.

9.3.1.11.3  (04-13-2005)
Procedures for Obtaining Authorization To Testify In Other Than Tax Administration Cases

  1. Any request or demand for testimony or production of IRS information, along with any pertinent facts and/or background information, is to be immediately forwarded through the manager to the Disclosure Officer. Failure to do so in a timely manner may subject the employee and the IRS to sanctions such as contempt of court. This information may be transmitted by telephone or fax when there is not enough time for a formal transmittal and mailing.

  2. The Disclosure Officer will prepare the authorization and clear it through Counsel prior to its submission to the appropriate official for signature.

9.3.1.12  (04-13-2005)
REQUESTS FROM CONGRESSIONAL COMMITTEES, THE PRESIDENT, OR PURSUANT TO A TAX TREATY

  1. Any requests for on-site visits, or demands for testimony or production of Internal Revenue information from Congressional Committees, the President, or other persons under 26 USC §6103(g) or pursuant to a Tax Treaty must be immediately transmitted through the SSA to the SAC, along with any pertinent facts and/or background information. He/she will send the request to the Chief, CI.

  2. Authorizations in these instances are prepared by the Governmental Liaison and Disclosure Office (or other designated office), cleared through the Assistant Chief Counsel (Disclosure and Privacy Law) and authorized by the Commissioner or the Deputy Commissioner.

9.3.1.13  (04-13-2005)
REQUESTS FROM OTHER FEDERAL AGENCIES

  1. Requests for tax-related information from the following governmental offices located in Washington, DC, shall be sent by the SAC to the Chief, CI:

    1. national headquarters office of the FBI

    2. national headquarters office of Selective Service (records of Selective Service applicants are confidential and the information therein may not be released except in instances where extraordinary circumstances, such as national security consideration, require disclosure)

    3. all Congressional committees and subcommittees and their investigatory staffs

    4. Securities and Exchange Commission

    5. Headquarters IRS

    6. Federal Deposit Insurance Corporation

    7. any other requests for information to be obtained from departments and agencies in Washington, DC, which are not routine in nature

  2. If there is a question as to whether the material is of a routine nature, the request should be sent to the Chief, CI, who will determine its disposition.

  3. Any requests for information from other governmental offices located in Washington, DC, other than those covered in paragraph (1), shall be forwarded to the head of the other agency by the SAC.

9.3.1.14  (04-26-1999)
REPORTS TO CONGRESSIONAL COMMITTEES INCLUDING THE GENERAL ACCOUNTING OFFICE

  1. Other than ad hoc information requested by Congressional Committees, certain reports and procedures have been established in dealing with recurring reports or specific situations involving Congressional Committees. The following subsections describe a few that might concern CI.

9.3.1.14.1  (09-25-2006)
Approval of the Joint Committee on Taxation to Correct Misstatement of Fact on an Investigation

  1. There may be instances when the limited disclosure of tax information, to the extent necessary to correct misstatement of fact, may be warranted. When it is determined that such a correction is necessary for tax administration purposes, the Commissioner is authorized to make such disclosures, but only with the approval of the Joint Committee on Taxation on an investigation-by-investigation basis (see 26 USC §6103(k)(3)).

  2. The IRS should seek authorization to disclose when:

    1. A misstatement of fact has the potential for instigating taxpayer noncompliance or causing a proliferation of taxpayer noncompliance.

    2. A misstatement of fact discredits the integrity of the IRS.

  3. Whenever field personnel become aware of any situation where a misstatement may warrant correction by the IRS through the disclosure of return information, they should contact their Disclosure Office for assistance. Particular attention should be paid to those situations involving abusive tax shelters.

  4. Additional information may be found in IRM 11.3, Disclosure of Official Information.

9.3.1.15  (04-13-2005)
INSPECTOR GENERAL AND OFFICE OF PERSONNEL MANAGEMENT DISCLOSURES

  1. Disclosure to TIGTA and the Office of Personnel Management (OPM) have certain unique features.

9.3.1.15.1  (04-13-2005)
Office of Audit

  1. The Office of the Treasury Inspector General for Tax Administration can have access to information covered under 26 USC §6103.

  2. Criminal Investigation Division field offices should follow established protocol when responding to TIGTA auditors' requests for information on grand jury investigations.

  3. When TIGTA makes a request involving a matter investigated by a grand jury, the CI special agent handling or responsible for the case will review the case file and redact any grand jury information.

  4. Information obtained prior to the grand jury referral and all information obtained during the investigation which does not constitute a matter occurring before the grand jury, will be furnished to TIGTA. The IRS takes the position that grand jury material is any matter occurring before the grand jury, i.e., testimony, information obtained pursuant to a subpoena, and/or any information that discloses the scope or direction of the investigation. Criminal Investigation Division will advise Office of Audit if full disclosure cannot be made of all items in the file because certain items fall within the scope of Rule 6(e). Criminal Investigation Division will describe in general terms the nature of the items (e.g., a transcript of testimony).

  5. If the CI special agent has questions about any specific items, he/she should consult with CT Counsel about whether the information should be redacted. If the special agent and CT Counsel cannot resolve the question as to whether specific information is grand jury related, CI may then consult with the attorney for the government who handled the criminal case.

  6. On open investigations (not fully adjudicated), prior to providing any documents to TIGTA auditors, CI will consult the attorney for the government assigned to the investigation to ensure that the attorney for the government does not object to the information being released to TIGTA auditors. If the attorney for the government believes that the release of such information could damage the ongoing investigation, CI, TIGTA and the government attorney will determine whether an accommodation can be made.

  7. If TIGTA believes that the items are not covered by Rule 6(e) and should be released, TIGTA will make a specific request to CI limited to the items important to completing the audit. Criminal Investigation Division will promptly reconsider releasing the items in the request and advise TIGTA of their decision. If TIGTA and CI cannot agree, the final decision will be made by the attorney for the government.

  8. All parties to the dispute will treat it as a priority and will provide an expedited review of the issues. They will attempt to resolve the dispute at the lowest possible level, seeking CT Counsel advice as soon as possible. If all attempts within the IRS fail to resolve the issue, the Division Counsel/Associate Chief Counsel (Criminal Tax) may, if unable to resolve the matter, refer the matter to the DOJ for final resolution.

9.3.1.15.2  (09-25-2006)
Office of Personnel Management

  1. Title 26 USC §6103(l)(4)(B) permits the disclosure of returns and return information to Department of the Treasury officers and employees for use in a personnel action or proceeding, or in preparation for such action or proceeding, to the extent necessary to advance or protect the government’s interests.

  2. This provision permits the IRS to disclose returns and return information to OPM when such information is needed in a personnel action of any kind. The reclassification of position grade levels by OPM is an "administrative action" within the meaning of 26 USC §6103(l)(4)(B), and OPM’s desk audits are considered preparation for this action.

  3. Disclosure to OPM under the provisions of 26 USC §6103(l)(4)(B) does not require a written request, but only officials with Delegation Order 156 authority may authorize such disclosures. Blanket disclosures of returns and return information to OPM should not be made. The need for confidentiality must be balanced against the need for specificity of information. See IRM 11.3.20, Personnel Records for additional guidelines to be followed.

9.3.1.16  (04-13-2005)
FOREIGN TAX TREATY INFORMATION EXCHANGES

  1. Tax treaties may contain secrecy clauses restricting disclosure of information exchanged pursuant to the treaty. (This is currently true of the US-Canadian Simultaneous Criminal Investigation Program. Canadian Customs and Revenue Agency (CCRA) should be alerted if any disclosure is contemplated). Access to such information is governed by 26 USC §6103.

  2. Director, Operations Policy and Support (CI:OPS) must be consulted prior to any disclosure or publicity involving international investigations wherein another country has participated in the investigation.

9.3.1.17  (04-13-2005)
PROTECTING RECORDS FROM UNAUTHORIZED DISCLOSURE

  1. The Chief, CI; Directors, Field Operations; SACs, and ASACs, are responsible for safeguarding CI records deposited in their respective offices. They will take adequate precautions, by arranging for safe storage facilities and the installation of necessary security devices, to guard against the loss or unauthorized disclosure of these records. The Physical Security Program, IRM 1.16, lists the minimum protection required for the various kinds of CI records and documents.

  2. Special agents and other CI personnel are responsible for the safeguarding of CI records in their custody against loss, destruction, or unauthorized access, and against unauthorized disclosure of information. To prevent unauthorized access or disclosure, documents and records in their possession, when not in use, will be provided with three protection points in accordance with IRM 1.16.

9.3.1.18  (04-13-2005)
PROTECTING TAXPAYER RECORDS AGAINST UNAUTHORIZED ACCESS

  1. Unauthorized Access (UNAX) is the willful unauthorized access or inspection of any return or return information. This does not include accidental or inadvertent access or inspection of a return or return information.

  2. Special agents and other CI personnel are not allowed to access or inspect taxpayer records when involvement in the matter could cause a possible financial conflict of interest or when there is a personal relationship or an outside business relationship that could raise questions about impartiality in handling the tax matter.

  3. Unauthorized Access (UNAX) covers both paper and electronic records of returns and return information, including local databases with return information.

  4. The Office of the Treasury Inspector General for Tax Administration, has total responsibility for investigation of all allegations of UNAX.

9.3.1.19  (09-13-2006)
PENALTIES FOR UNAUTHORIZED INSPECTION AND DISCLOSURE

  1. Criminal and civil sanctions may be imposed upon persons who have made intentional UNAX or disclosure violations.

  2. The TIGTA has investigative jurisdiction of unauthorized inspection or disclosure of Federal tax information by Federal or state employees, corporate shareholders, contractors, and others.

9.3.1.19.1  (04-13-2005)
Unauthorized Disclosure of Information

  1. Title 26 USC §7213 provides criminal penalties of up to a $5,000 maximum fine, imprisonment for a maximum of 5 years, or both, together with the cost of prosecution and dismissal from employment for the willful unauthorized disclosure of a return or return information.

  2. An unauthorized disclosure is made willfully when it is done voluntarily and intentionally with full knowledge that it is wrong.

9.3.1.19.2  (09-13-2006)
Unauthorized Access or Inspection of Return or Return Information

  1. Title 26 USC §7213A provides criminal penalties of a fine not to exceed $1000, imprisonment for a period of not more than one year, or both, together with the cost of prosecution and dismissal for the willful unlawful access or inspection of any return and return information.

  2. Unauthorized access to return or return information is to be reported to the immediate CI supervisor. The CI supervisor will advise TIGTA of all intentional unauthorized accesses.

  3. For a complete discussion of unauthorized accesses or disclosures of confidential tax information, see IRM 11.3.38.6, Referral of Unauthorized Disclosure and/or Inspection.

9.3.1.19.3  (04-13-2005)
Civil Liability Under 26 USC §7431

  1. Civil actions for damages are permitted against the Federal government rather than against the Federal employee.

  2. Title 26 USC §7431 provides that where a Federal officer or employee knowingly or negligently discloses a return or return information in violation of the disclosure restrictions, the wronged party may bring a civil action for damages against the government.

  3. Certain non-Federal employees may be sued for damages under 26 USC §7431, if they have violated the disclosure statutes.

  4. No liability shall arise under 26 USC §7431 where the disclosure was the result of a good faith but erroneous interpretation of 26 USC §6103.

  5. If employees are criminally charged with inspection or disclosure of a taxpayer's return or return information, the IRS is required to notify the taxpayer that their records were inspected or disclosed.

  6. Any IRS official or employee who receives a complaint or summons in a civil suit containing allegations of unauthorized disclosure should immediately notify his/her supervisor and Counsel.

9.3.1.20  (09-25-2006)
REPORTING UNAUTHORIZED ACCESS, INSPECTIONS AND DISCLOSURES

  1. Internal Revenue Service employees are required to report suspected instances of willful (voluntarily and intentional with full knowledge of wrong doing) unauthorized access, inspection, or disclosure of returns and return information to TIGTA.

  2. Inadvertent unauthorized access, inspection and disclosure are not willful and are therefore exempt from the above TIGTA reporting procedures. Criminal Investigation employees must report violations of this nature directly to their immediate CI supervisor who, in turn, is to report them to the local disclosure officer. Form 10848, Improper Disclosure Report, is used for this purpose (see IRM 11.3.38.6).

9.3.1.21  (04-13-2005)
NON-DISCLOSURE LAWS OTHER THAN 26 USC §6103 PERTAINING TO CRIMINAL INVESTIGATION DIVISION ACTIVITIES

  1. Employees of the IRS have access to information falling under the provisions of other non-disclosure regulations. IRS employees must abide by those regulations, just as the IRS subjects parties permitted to have tax information to the limitations and penalties associated with 26 USC §6103. Criminal Investigation Division employees most frequently encounter disclosure regulations in the areas of information obtained in the grand jury setting, from intercepted communications, or from the Social Security Administration.

9.3.1.21.1  (04-26-1999)
Disclosure of Grand Jury Information

  1. See IRM 9.3.1.4.

9.3.1.21.2  (09-25-2006)
Disclosure of Intercepted Communications

  1. All persons having access to transcripts of private conversations are reminded that the contents of intercepted communications may be disclosed solely within the course of their official duties and on a need-to-know basis. Any disclosure of the contents of intercepted messages, which is not pursuant to 18 USC §2517, may subject the offending party to a civil action for damages under 18 USC §2520, and the possibility of having to show cause why he/she should not be held in contempt under 18 USC §2518(8)(c).

    Note:

    Once the contents of intercepted communications are made known to IRS officials, the access and disclosure provisions of 26 USC §6103, §7213A, §7213, and §7431 are applicable (see 18 USC §1905).

9.3.1.21.3  (09-25-2006)
Disclosure of Social Security Administration Records

  1. Regulations under the Social Security Act authorize the Social Security Administration to disclose information to any officer or employee of the Department of the Treasury lawfully charged with the administration of Titles II, VIII, or IX of the Social Security Administration, the Federal Insurance Contributions Act, the Self-Employment Act, the Federal Unemployment Tax Act, or any Federal income tax law for the purpose of such administration only. The regulations expressly forbid further disclosure of information thus obtained, or its use for any purpose other than administration of the employment and income tax laws.

  2. If an attorney for the government requires returns or return information in the possession of the Social Security Administration, he/she should submit a written request to the Chief, Communications & Liaison requesting authorization for Social Security Administration to release the information (see IRM 11.3.22, Disclosure to Federal Officers and Employees for Tax Administration Purposes).

Exhibit 9.3.1-1  (04-26-1999)
Memorandum of Understanding: Access to Grand Jury Matters for Internal Audit Purposes

RESERVED

Exhibit 9.3.1-2  (04-26-1999)
Statement Regarding Use and Disclosure of Federal Tax Information By State or Local Government Employee Appointed to Assist A Federal Grand Jury Investigation

STATEMENT REGARDING USE AND DISCLOSURE OF FEDERAL TAX
INFORMATION BY STATE OR LOCAL GOVERNMENT EMPLOYEE
APPOINTED TO ASSIST A FEDERAL GRAND JURY INVESTIGATION
I understand that I have been formally appointed pursuant to (US CODE SECTION UNDER WHICH APPOINTED) to assist in a Federal grand jury investigation and that because of this appointment I am considered a Federal employee for Federal tax information disclosure purposes.
I understand that during the course of this appointment I may receive Federal tax information under 26 USC §6103(h) or (i). I understand that such information is provided solely for use in the Federal grand jury investigation in which I am assisting and related Federal judicial or administrative proceedings, and for no other purpose. I specifically understand that such information may not be used or disclosed for state or local law enforcement.
I understand that the willful, unauthorized disclosure of Federal tax information is a crime (felony) under 26 USC §7213(a) punishable by a fine of not more than $5,000, or imprisonment of not more than 5 years, or both, together with the costs of prosecution. Such disclosure may also give rise to civil liability under 26 USC §7431.
   
  (Signature)  
       
Name:    
Title:    
Address:    
     
Department:    
     

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