11.3.5  Fees

Manual Transmittal

March 10, 2016

Purpose

(1) This transmits revised text for IRM 11.3.5, Disclosure of Official Information, Fees.

Material Changes

(1) Made editorial changes throughout to improve coherence and clarity and to update organizational titles from Disclosure Officer to Disclosure Manager. Verified and updated web references and links.

(2) Added information in 11.3.5.2(2) about the disposition of user fees collected by IRS.

(3) Added information in 11.3.5.3 to provide context for the use of fee categories under the Freedom of Information Act (FOIA).

(4) Revised 11.3.5.3.3(1) to include the broadened definition of the news media incorporated in the OPEN Government Act of 2007 amending section (a)(4)(A) of the Freedom of Information Act (FOIA).

(5) Revised 11.3.5.4 to broaden the explanation of the effect of user category on fees charged and incorporate Interim Guidance to promote the use of electronic media.

(6) Revised 11.3.5.4.1 to include a reference to the incorporation of Interim Guidance on fees for responses using electronic media.

(7) Revised 11.3.5.4.2 to include a reference to the incorporation of Interim Guidance on fees for responses using electronic media.

(8) Revised 11.3.5.4.3 to include a reference to the incorporation of Interim Guidance on fees for responses using electronic media.

(9) Changed 11.3.5.5 subsection title from Manner of Payment to General Fee Issues to provide a better description of common issues when processing requests that generate fees.

(10) Changed the sequencing of 11.3.5.5.1 through 11.3.5.5.5 to create more logical flow.

(11) Revised 11.3.5.5.1(4), adding requirement to contact requester prior to closing request as imperfect.

(12) Revised 11.3.5.5.2(1) and (4) to indicate research to determine instances of non-payment in requester's payment history is limited to cases closed in the preceding six years.

(13) Revised 11.3.5.5.3 to incorporate Interim Guidance relating to the minimum billing amount.

(14) Revised 11.3.5.5.4 to incorporate Interim Guidance relating to the minimum billing amount and 11.3.5.5.4(7) to include limitations on fee collection imposed by the OPEN Government Act of 2007 amending FOIA section (a)(4)(A).

(15) Revised 11.3.5.6.2 to remove as a factor weighing against granting a fee waiver a request's or a requester's associations with groups or movements inconsistent with the public interest because of their advocacy of discrimination, segregation, public disorder or illegal activity.

(16) Revised 11.3.5.6.3 to adjust the minimum fee amount in accordance with previously issued Interim Guidance.

(17) Changed title of 11.3.5.7.1 from "Copies" to "Duplication."

(18) Revised 11.3.5.7.2 to raise the average cost for the services of clerical, professional and supervisory personnel involved in locating records from $17.00 for each hour or fraction of an hour to $41.00 per hour.

(19) Changed 11.3.5.7.3 subsection title from Computer Costs to Fees for Electronic Services and updated to incorporate Interim Guidance on fees for responses using electronic media.

(20) Revised 11.3.5.7.5 to raise the average cost for the services of clerical, professional and supervisory personnel involved in reviewing records from $21.00 for each hour or fraction of an hour to $45.00 per hour.

(21) Removed 11.3.5.7.7, Certification. IRS is not required to certify under the FOIA. Disclosure sometimes certifies for courts but does not charge for these services. Other offices may certify under routine procedures, but the FOIA fees chapter does not govern the procedures of those offices.

(22) Removed 11.3.5.7.8, Contractors because Disclosure rarely sends files to contractors for duplication other than for the purpose of facilitating the processing of a case through our case processing system. We don't charge a fee when the reason for duplication or conversion is driven by our choice of processing method rather than specific requirements of the request itself or the requester's preference.

(23) Revised 11.3.5.8 to incorporate Interim Guidance Memorandum PGLD-11-0313-01 relating to the minimum billing amount. Also removed reference to minimum billing not applying to 6103, 6104 or 6110 requests.

(24) Removed paragraphs (3), (4) and (5) from 11.3.5.9.2 because they relate to case processing concerns not related to fees.

(25) Updated 11.3.5.9.5 to reflect fees changes for requests for I.R.C. § 6110 records processed by the Office of Chief Counsel.

(26) Removed reference to exhibit 11.3.5-1 in 11.3.5.9.6.

(27) Removed 11.3.5.9.7, Mixed Requests.

(28) Revised 11.3.5.10 to incorporate changes to payment processing for Disclosure Offices using the AFOIA case management system. Added misapplied payment procedures to instructions at 11.3.5.10(9) and removed outdated procedures from 11.3.5.5.2(8).

Effect on Other Documents

This material incorporates Interim Guidance Memorandum PGLD-11-0313-01, Interim Guidance on Computing Fees When Providing Freedom of Information Act (FOIA) Responses on Removable Electronic Media, and Setting at $25.00 the Minimum Billing Amount Disclosure Will Charge for FOIA Responses, and supersedes IRM 11.3.5, Disclosure of Official Information - Fees, dated December 28, 2007.

Audience

All Operating Divisions and Functions

Effective Date

(03-10-2016)

Related Resources

The Disclosure intranet home page can be found at: http://discl.web.irs.gov/Default.asp.



Joyce H. Peneau
Acting Director, Governmental Liaison, Disclosure and Safeguards

11.3.5.1  (03-10-2016)
Background

  1. This section contains instructions for collecting authorized fees for providing copies of records and for related services, such as search, review and certification.

  2. These instructions are applicable to services or copies provided by Disclosure personnel or by other personnel acting pursuant to provisions of chapter 11.3, Disclosure of Official Information.

11.3.5.2  (03-10-2016)
Authority

  1. 31 U.S.C. § 9701 states that each service or item of value provided by an agency to a person must be self-sustaining to the extent possible. User charges must be fair and based upon the cost to the Government, the value of the service or item to the recipient, the public policy or interest served, and other relevant facts.

  2. Generally, federal agencies must credit user fee collections to the general fund of the Treasury as miscellaneous receipts, as required by 31 U.S.C. § 3302, unless a statute provides otherwise. The Treasury, Postal Service, and General Government Appropriations Act of 1995 (Pub. L. 103–329), enacted on September 30, 1994, allowed the Service to spend up to $119 million per fiscal year of new or increased user fee receipts, provided the fees were based on the cost of providing services. On January 4, 2005, the Transportation, Treasury, Housing and Urban Development, the Judiciary, the District of Columbia, and the Independent Agencies Appropriations Act of 2006 (Pub. L. 109–115) eliminated the $119 million cap on annual spending. This effectively allows the Service to retain receipts from new user fees or increases to existing fees.

  3. Statutory provisions that relate specifically to charges for the disclosure of records by the Internal Revenue Service include:

    1. 5 U.S.C § 552(a)(4)(A)

    2. 5 U.S.C. § 552a(f)(5)

    3. I.R.C. § 6110(k)(1)

    4. I.R.C. § 6103(p)(2)

  4. The Freedom of Information Act (FOIA) provides that some categories of requesters receive a basic level of services without fees or at reduced fees.

  5. The Department of the Treasury issued regulations establishing fees for specific services in connection with the disclosure of records at 31 C.F.R. Part 1, Section 1.7. The IRS has issued regulations at 26 C.F.R. § 601.702 to implement and enhance the Treasury regulations. The IRS FOIA regulations are available at:
    http://www.ecfr.gov/cgi-bin/text-idx?SID=5fb7d863db610fe5bb52a66facb25fb1&mc=true&node=pt26.22.601&rgn=div5#se26.22.601_1702.

11.3.5.3  (03-10-2016)
Categories of Users - FOIA

  1. Under the FOIA, requesters fall into one of four different user categories. The category of user determines the range of fees an agency may charge for FOIA services. Generally, FOIA requesters, other than one in the "all other requester" category must attest, under penalty of perjury, to the category of user they believe themselves to be. Where it is apparent no fees apply, or where Disclosure personnel can readily determine the category of user, do not treat the request as imperfect merely because the requester does not include this statement.

11.3.5.3.1  (03-10-2016)
Commercial Use

  1. A commercial use request is one that furthers the commercial, trade, or profit interests of the requester or person on whose behalf the request is made.

  2. Factors that may help identify commercial use include:

    • The intended use of the information

    • The identity of the requester in the absence of any acceptable explanation to the contrary

    • The nature of the records requested

    • Any previous experience with the requester or type of request

  3. Commercial use may include the resale of the information or any other purpose that is related to commerce, trade or profit. Take care to differentiate commercial users intending to offer general information for resale (including those who represent trade journals of limited circulation) from news media serving the general public who would not be considered commercial users. Certain requesters who seek access to information for the purpose of resale, but by so doing, facilitate the Internal Revenue Service’s dissemination of information to a significant segment of the public (e.g., taxpayers, tax practitioners, legislators), may be considered either media requesters or "all other requesters." Seek advice from Media Relations if an apparent commercial user claims to represent the news media.

  4. By their nature, some types of records suggest a commercial interest, unless the requester cites unusual circumstances. For example, you may infer that information requests from a competitor or a competitor’s representative for records relating to software or other technical data, or to the acquisition of equipment, facilities, supplies, or services are by their nature commercial requests.

  5. Although commercial users may use business letterhead stationery, a business title, an address known to be a business location, and you may find other evidence of commercial status contained within the request, do not base a commercial use determination solely on these criteria. Requests from attorneys, accountants or other representatives may be commercial use requests if the requesters are known to represent principals who would otherwise be considered commercial users. Do not make a commercial use determination simply because the requester generates a large volume of FOIA/Privacy Act cases on behalf of clients.

  6. Any requester described as an "all other requester" whom you determine to be a commercial use requester must be given an opportunity to submit evidence refuting that determination. Because you must contact the requester to ask whether the requester will agree to pay review fees, take that opportunity to allow the requester to submit additional information that may alter your determination.

  7. A request from a commercial enterprise for its own returns or return information relating to corporate income, excise or employment taxes does not constitute a "commercial use request" . These fall into the "all other requester" category.

11.3.5.3.2  (03-10-2016)
Educational or Noncommercial Scientific Institutions

  1. This category refers to institutions whose purpose is to conduct scholarly or scientific research.

  2. Educational institution refers to:

    • Preschools

    • Public or private elementary schools

    • Public or private secondary schools

    • Institutions of undergraduate higher education

    • Institutions of graduate higher education or

    • Institutions of vocational education that operate a program or programs of scholarly research

  3. Preschool, elementary, secondary and vocational schools rarely qualify as "educational" institutions for fee purposes because they don’t generally conduct programs of scholarly research. However, they may qualify as a component of local government and, as such, be eligible for a fee waiver. See 26 C.F.R. § 601.702(f)(2)(F)(iv) and IRM 11.3.5.6.5 (2) below.

  4. Evaluate requests individually. Ensure the request is from an institution that has a scholarly research program and the requested documents serve a scholarly research goal of the institution rather than an individual goal. This “institution” versus “individual” test also applies to student requests. Generally, a requester seeking access to records for a student research project is categorized as an all other requester.

  5. Noncommercial scientific institution refers to an independent nonprofit institution whose purpose is to conduct noncommercial scientific research, and whose results are not intended to promote any particular product or industry.

  6. In some cases, educational or noncommercial scientific institutions may perform work under contract for the specific benefit of commercial entities and warrant treatment as commercial users.

11.3.5.3.3  (03-10-2016)
News Media

  1. The OPEN Government Act of 2007, amending section (a)(4)(A)(ii) of the FOIA, defines representatives of the media to include "any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience." The term "news" as defined by the Act means "information that is about current events or that would be of current interest to the public." The Act also addresses the evolution of news delivery methods and allows for consideration of alternative media as news media entities.

  2. The news media may include freelance journalists if they can demonstrate a solid basis for expected publication, such as a publication contract or by demonstrating a history of publication.

  3. Representatives of narrowly focused publications such as house journals, trade journals or organizational newsletters that are not designed for ordinary circulation to the general public are not considered news media for this purpose. However, if publications are available by public subscription or on news stands, the representatives may be considered news media.

11.3.5.3.4  (03-10-2016)
All Other Requesters

  1. Consider any person who does not fit into one of the three categories described above as an "all other requester. "

11.3.5.4  (03-10-2016)
Categories of Services - FOIA

  1. The FOIA allows federal agencies to charge for records searches, records reviews, for copying records, and for direct costs associated with providing records in electronic formats, subject to limitations based on the user category of the requester. Where possible, caseworkers should provide records using electronic media rather than in paper form.

11.3.5.4.1  (03-10-2016)
Commercial Users

  1. Charge commercial users fees for records searches, records reviews and copying. However, these requesters are entitled to two hours of free search time. They also receive the first one hundred pages copied without charge, if producing the records in paper form. See IRM 11.3.5.7.3 for more information on fees for records produced on electronic media.

  2. Commercial Users may not make requests for the reduction or waiver of fees. Do not honor any such requests.

11.3.5.4.2  (03-10-2016)
Educational, Noncommercial Scientific Institution or the News Media

  1. Educational or noncommercial scientific institutions whose purpose is scholarly or noncommercial scientific research and representatives of the news media incur fees only for copying records. There is no fee for the first one hundred pages copied, if producing records in paper form. See IRM 11.3.5.7.3 for more information on fees for records produced on electronic media. Do not charge these users search or review fees.

  2. In addition to the fee limitations stated above, you may consider requests from educational institutions, noncommercial scientific institutions, and news media requesters for fee reductions or the waiver of all fees. .

  3. Prior to performing extensive computer or manual research in response to a request from an educational or noncommercial scientific institution or a representative of the news media, confirm that the request is actually under the auspices of the qualifying institution or the employing news organization, rather than simply representing the interests of the requesting staff member.

11.3.5.4.3  (03-10-2016)
All Other Requesters

  1. "All other requesters" are subject to fees for records searches and copying. However, these requesters are entitled to two hours of free search time. They also receive the first one hundred pages copied without charge, if producing the records in paper form. See IRM 11.3.5.7.3 for more information on fees for records produced on electronic media. Do not charge these users review fees.

  2. First party requests, where the information would otherwise be available under the Privacy Act, are charged fees under the Privacy Act instead of the FOIA. See IRM 11.3.5.9.1 below, for additional information about fees relating to Privacy Act requests.

11.3.5.5  (03-10-2016)
General Fee Issues

  1. Depending on the nature of the request, the fee category of the requester, the requester's past payment history and other issues, requests generally require a commitment to pay and may require pre-payment and the resolution of past debts in some instances.

11.3.5.5.1  (03-10-2016)
Commitment to Pay

  1. Requests for records generally must include a commitment to pay fees. The commitment may be a simple statement expressing a willingness to pay appropriate or reasonable fees. See IRM 11.3.5.6.1(4) below, if the request contains both a firm commitment to pay and a request for a fee waiver. See IRM 11.3.5.5.3 below, when the fee exceeds the commitment to pay.

  2. The IRS generally rejects Freedom of Information Act requests as imperfect in the absence of a commitment to pay fees unless the request does not generate fees. A FOIA requester should make a firm commitment to pay unless the request does not generate fees as in the following examples:

    • Fee is less than the $25.00 minimum billing amount

    • Valid fee waivers

    • 100 or fewer pages from an "Educational, Noncommercial Scientific Institution or News Media Requestor"

    • No search fee and 100 or fewer pages from an "all other requester"

    • Responsive document is a CD containing fewer than 1000 pages of information when there are no other applicable fees (See IRM 11.3.5.7.3, below, for procedures on fees for records produced on electronic media)

  3. Use good judgment to ensure requesters are aware of the general level of fees to which they are committing. For instance, an attorney making a request on behalf of a client may anticipate a fee that a student engaged in a research project might not expect.

  4. When requesters indicate an upper limit to the fees they are willing to pay and the fee estimate goes beyond that amount, contact the requester to reformulate the request or to adjust the limit prior to closing the case as imperfect.

  5. You may reject requests citing other disclosure authorizations, such as the Privacy Act or IRC § 6103, in the absence of a commitment to pay fees.

  6. When addressing fee issues with requesters, also address any other perfection issues that prevent request processing.

  7. When requesters claim a requester classification that will generate lower fees than the facts merit, ensure their commitment reflects the correct classification.

11.3.5.5.2  (03-10-2016)
Requests Involving Late Payment or Nonpayment

  1. Request payment of fees prior to performing services beyond the minimal effort needed to estimate the fees whenever:

    1. the requester has a history of late payments (more than 30 days) within the preceding six years,

    2. the requester has failed to pay prior fees within the preceding six years, or

    3. the requester is a minor, an incompetent or other person not capable of making the required commitment to pay fees.

  2. For purposes of nonpayment, a requester is the individual in whose name a request is made. Where a request is made on behalf of another individual and previous fees have not been paid within the designated time period by either the requester or the individual on whose behalf the request is made, IRS will require full payment of all outstanding fees and any estimated fees before processing a new request.

    Note:

    A requester could include an entity (e.g. partnership or corporation). If a partnership submits a FOIA request and an authorized member of the partnership signs the request, then the partnership, jointly, and all of the partners, severally, are responsible for the payment of FOIA fees, including outstanding FOIA fees owed by the partnership or their client(s) on whose behalf the partnership or one of its partners have submitted FOIA requests. For a corporation, a requester clearly holding himself or herself out to be a representative of the business (e.g., a CPA of an accountancy corporation using corporate letterhead) obligates himself or herself as well as the corporation to the fees. In the case of a franchise, only the local franchise is held responsible.

  3. Failure to pay prior fees means the failure to pay fees in a situation where the IRS actually worked a case and requested payment in connection with a response that was actually made or that the Service was prepared to make. There is no failure to pay fees if the Service merely provided an estimate that the requester was not obligated to accept. There is no failure to pay fees if the requester fails to respond to a request for prepayment because extensive efforts were anticipated. Subsequent requests do not create additional failures to pay when the Service has refused to work a case because of a prior failure to pay. However, unpaid fees in any IRS office will prohibit processing in all other offices.

  4. Document all fees and payments in the electronic case processing system. Research the requester's payment history for the preceding six years to determine instances of non-payment prior to processing the request.

  5. However, if the Disclosure Manager authorizes it, the caseworker may ignore non-payment of prior fees if the requester expresses no current interest in the records and processing the request would be burdensome to the Service.

  6. A decision not to request a prior fee does not preclude the use of that incident of nonpayment or an incident of late payment as the basis for demanding advanced payment of current fees.

  7. Document the case history with the reasons for requesting advance payment before processing the case.

  8. When applying these guidelines for demanding advanced payment remember that a history of late payment is not the same as non-payment. See IRM 11.3.5.5.2(1) above. A history of late payment does not allow the Service to refuse services which would be entirely free under current law; it merely permits a demand for advance payment when an actual fee is anticipated. Only unpaid fees will preclude processing of subsequent requests.

11.3.5.5.3  (03-10-2016)
Requests Involving Extensive Efforts

  1. When anticipated fees will equal or exceed $250.00 due to extensive search, review or copying, obtain payment prior to performing additional work on the request.

  2. The estimate of anticipated fees must be reliable and based on a realistic and factual appraisal of cost:

    1. The request must clearly show that the extent of the search and/or the volume of records justify a fee estimate of at least $250.00. If not immediately apparent, continue processing to the extent necessary to estimate the fee.

    2. When requesters ask for their own tax records, it is appropriate to make a preliminary search of appropriate databases such as IDRS or AIMS to verify the extent of responsive records to determine the possible need for pre-billing.

    3. Document the basis for a fee estimate of $250.00 or more in the case history.

  3. The estimate of $250.00 or more represents the amount due after allowing the free search time or free copies to which the requester is entitled.

  4. Advise the requester, in accordance with 26 C.F.R. 601.702(f)(4)(ii):

    1. how search, review or copy fees were calculated and the estimated amount for each,

    2. that additional fees may become due if the actual search time, review time or number of copies exceed the estimate,

    3. that if the fee estimate exceeds the commitment to pay, the requester may discuss reformulating the request with the Disclosure Manager in order to reduce fees, and

    4. that a refund may be made if the estimate is greater than the actual costs for search or number of copies.

      Note:

      Do not refund search fees if an executed search does not locate or result in the release of records. Do not refund review fees after completing a review that does not result in the release of records.

  5. If the requester has submitted payment and actual fees exceed the payment amount, request additional fees only if they are $25.00 or more.

  6. If the requested payment has been made and actual fees are at least $2.00 less than the payment amount, authorize a refund and advise the requester of the amount. Issue refunds for less than $2.00 only upon request.

  7. To minimize the need for refunds, Disclosure personnel must develop expertise at estimating fees realistically. A conservative estimate resulting in additional fees or waiving an additional fee under the minimum billing amount is preferable to creating the potential expense of processing a refund.

11.3.5.5.4  (03-10-2016)
Processed Requests

  1. Process all requests stating an adequate commitment to pay and all requests where you anticipate no fees due unless the requests:

    1. require pre-payment. See IRM 11.3.5.5.2 and IRM 11.3.5.5.3, above.

    2. are otherwise imperfect.

  2. When computing fees:

    1. See IRM 11.3.5.5.3 above if the cost is anticipated to exceed $250.00.

    2. Do not bill for fees totalling less than $25.00.

    3. Requesters are liable for applicable search and/or review fees even if no records are located or released.

  3. Generally, if the total fee exceeds those services provided free to the requester, provide a combined final response and billing letter and send it with the responsive documents. In situations where fees exceed the requester's commitment to pay, contact the requester by telephone or by mail for agreement to pay the higher fee or to reformulate the request.

  4. Your final response letter must include the following:

    1. A description of the computation for applicable search, review and copy fees, allowing for any free services and any fees waived, reduced or previously paid.

    2. A statement to make checks or money orders payable to United States Treasury.

    3. A statement that fees paid are reimbursement for services performed and are not refundable.

    4. An explanation that IRS will not process future requests until all fees are fully paid.

  5. Document in case records how fees were computed. This is especially important when fees exceed the minimum charge amount and include efforts by other offices. Include the identity of the person reporting the search efforts and a short statement describing what was done.

  6. If the response involves both free and charged services, include a statement describing the type of service that was free and the type of service and amount due for services incurring charges.

  7. The OPEN Government Act of 2007, amending section (a)(4)(A) of the FOIA, prohibits the assessment of fees when the agency has not complied with the 20 working day statutory response unless unusual or exceptional circumstances apply. Unusual and exceptional circumstances are defined in FOIA subsections (a)(6)(B) and (C).

11.3.5.5.5  (03-10-2016)
Inspection of Records

  1. You may collect any applicable fees before providing copies or permitting inspection of records.

    Note:

    Fees for first party requesters are limited to copying.

11.3.5.6  (03-10-2016)
Fee Waivers

  1. The Freedom of Information Act allows agencies to furnish records without charge, or at a reduced charge, when the agency determines that waiver or reduction of the fee is in the public interest and is not primarily in the commercial interest of the requester. See IRM 11.3.5.6.2 below.

  2. The application of various disclosure statutes may sometimes overlap, so that requests made pursuant to Privacy Act or Internal Revenue Code provisions may also appear to have FOIA aspects. Waive fees regardless of the statute cited in the disclosure request or the procedure under which the case is controlled and processed if the services provided are substantially similar to those performed in response to FOIA requests.

  3. Apply the most appropriate fees for any services provided. If varying fees appear to be equally applicable to a situation, Disclosure Managers may exercise discretion to apply the lowest appropriate fee.

  4. Nothing in this IRM prevents IRS employees from providing copies of tax administration records without charge while performing assigned tax administration duties. For example, compliance employees may provide copies of returns or work papers without charge to taxpayers and their representatives as needed to facilitate the examination of returns or collection of taxes due.

11.3.5.6.1  (03-10-2016)
Requesting Waivers

  1. IRS will only consider written fee waiver or reduction requests.

  2. The requester must provide the rationale and any required evidence to support a fee waiver or reduction request.

  3. Under some circumstances, the appropriateness of waiving fees may be self-evident and may warrant action at the initiative of the Disclosure Manager even in the absence of a written request for a waiver. For instance, requests from charitable organizations, educational institutions and news media organizations where releasing the records would obviously benefit the general public do not generally incur fees even though the requester did not specifically ask for a waiver. Disclosure Managers may also waive fees when the requester demonstrates that release of the records serves a humanitarian purpose or when the Disclosure Manager determines that a waiver of fees is equitable and contributes to efficient government operations.

  4. Where a request contains both a firm commitment to pay fees and a request for a fee waiver, consider both statements and interpret the request to be a firm promise to pay fees if the fee waiver is not granted. Send an acknowledgment letter.

    1. If granting the fee waiver, process the request and indicate in the response letter that the waiver was granted. Extend appeal rights for any records denied.

    2. If denying the fee waiver, but no fees accrue, process the request and state in the response letter that a fee waiver was not considered because there was no fee.

    3. If denying the fee waiver, and fees are expected, address both the fee waiver denial and any denial of the records at issue in the response. Grant appeal rights for both the denial of records and the denial of the fee waiver. If the fee waiver denial is reversed and the requester has not yet paid the fee, remove the fee from the electronic case processing system and notify the requester to ignore any invoice that may have been issued. If the requester has paid the invoice, issue a refund.

  5. Where a request asks for a fee waiver, but includes no firm commitment to pay fees, send an acknowledgment letter and make the fee waiver determination before processing the request.

    1. If granting the fee waiver, process the request.

    2. If denying the fee waiver, but there are no fees, process the request and indicate in the response that a fee waiver was not considered because there were no fees.

    3. If denying the fee waiver and there are fees, do not process the request. Indicate in the response letter that the requester must resubmit the request with a commitment to pay any fees due before processing will continue. Grant appeal rights for the denial of the fee waiver and close the case as imperfect.

    4. If the fee waiver denial is reversed on appeal, the Service will re-open and process the request. The 20 workday period begins to run from the date the copy of the appeal determination letter is received by the Disclosure office.

11.3.5.6.2  (03-10-2016)
Public Interest

  1. Fees may be waived or reduced when, at the discretion of the determining official, it is in the public interest because furnishing the information is likely to contribute significantly to public understanding of IRS operations or activities and is not primarily in the commercial interests of the requester.

  2. The determination to waive fees in the general public's interest is based on an evaluation of the information involved, its value to the public and the intent and capability of the requester.

  3. Consider the degree to which release of the records will inform public understanding of IRS operations. Use the following criteria to inform your decision-making process:

    • Is the information of current significance?

    • Does the information carry historical, scientific, or economic significance?

    • Is the information otherwise available to the public?

    • Are the records of interest to a broad segment of the population?

    • Is requester able and likely to convey significant information that will increase public understanding of IRS operations?

    • Could release of the information reduce government costs by eliminating the need for other forms of distribution or by reducing the future volume of FOIA requests for the same information?

    Also weigh the commercial interest of the requester against the significance of increased public understanding of IRS operations or activities. Note that information concerning the requester alone is unlikely to contribute to the public understanding of IRS operations or activities.

  4. The following attributes of a requester could be relevant to a determination to waive fees:

    1. Recognition as a scholar, researcher or authority in a field related to the material requested

    2. Association with a university, laboratory, or bona fide research activity related to the material requested

    3. Membership in relevant professional associations

    4. An established record of publication or dissertation on related subjects

    5. A reputation for impartiality appropriate to scholarly, scientific or journalistic endeavors

    6. A demonstrated capability to publish, reprint or disseminate information

    7. A demonstrated capability to preserve records in a library, archives, museum, or other publicly accessible location

    8. Makes a cogent proposal for utilizing the material requested in a manner primarily benefitting the general public

  5. The following factors weigh against granting a fee waiver:

    1. The information is of limited interest to the public

    2. The requested information is clearly exempt, so there is nothing to disclose and, therefore, no benefit to public understanding of the operations or activities of IRS. An example would be a request for third-party returns or return information where the requester has not shown a material interest or produced a consent to authorize disclosure

    3. The requester is unlikely to disseminate the information because much of it is personal to the requester

    4. A considerable portion of the requested information relates to the requester's own affairs or involves an administrative or judicial proceeding between the requester and the Government

    5. The basis for the request relates to a hobby or a personal purpose such as genealogical research

    6. The information is for use in the requester's entrepreneurial or commercial enterprise or may be offered for sale and the release of the information does not reduce Government costs by eliminating the need for other forms of distribution or reducing the anticipated volume of further FOIA requests for identical information

    7. The request is one of a number of other requests from the same requester seeking the same or similar information

11.3.5.6.3  (03-10-2016)
Indigence

  1. A written declaration of indigence, even under penalty of perjury, does not entitle a request to a waiver of fees.

  2. Inasmuch as an indigent falls into the All Other Requester FOIA category he or she receives two hours search time and the first one hundred pages copied without charge, as well as free services up to the $25.00 minimum payment amount. See IRM 11.3.5.8(2) below.

11.3.5.6.4  (12-31-2001)
Humanitarian Requests

  1. Disclosure Managers may waive fees when the requester has demonstrated that the request primarily serves a humanitarian purpose intended to benefit a person other than the requester.

11.3.5.6.5  (03-10-2016)
Other Waivers

  1. Do not charge for copying when the requester furnishes the supplies and equipment and makes the copies at the government location. Only allow such activities if they do not disrupt ordinary business, inconvenience other members of the public, or create hazardous or unpleasant conditions.

  2. Disclosure personnel may encounter circumstances other than those described in this IRM where fee waivers contribute to the efficient performance of Government business. Disclosure Managers may exercise their discretion to waive fees in these situations. Normally, charge no fees for providing records to Federal, state, local, or foreign governments, to agencies or offices thereof, or to international governmental organizations.

11.3.5.6.6  (03-10-2016)
Documentation

  1. Denials of fee waivers are subject to administrative appeal and judicial review and require appropriate documentation to adjudicate.

  2. Document in case records all fee waiver decisions in a manner that enables subsequent reviewers to understand the rationale for the determination. The case record (i.e., the administrative record) is the only information used in judicial reviews of fee waiver denials.

  3. Be prepared to submit a declaration justifying an adverse determination. Include all significant facts you considered prior to making the decision.

11.3.5.7  (03-10-2016)
Fee Provisions

  1. The fees addressed in this text apply to requests for the disclosure of records, including those authorized by the Freedom of Information Act, I.R.C. § 6103(c) and I.R.C. § 6103(e).

  2. Special provisions concerning Privacy Act access requests, copies of returns, Exempt Organization returns and applications, Employee Plans documents, and written determinations are contained in subsections with those headings.

  3. In the absence of any special provisions, resolve any doubts concerning fee computations by assuming that Freedom of Information Act fee provisions apply, unless Disclosure Managers determine that a lower fee is appropriate.

11.3.5.7.1  (03-10-2016)
Duplication

  1. The fee for paper copies is $0.20 per copy of each page, up to 8 1/2'' x 14''.

  2. Charge fees for copies exceeding 8 1/2'' x 14'' in multiples of $0.20 for each additional 119 square inches or fraction thereof, unless the equipment used to produce the copies is known to involve an actual cost exceeding that rate.

  3. Charge the actual cost to duplicate photographs, films, and other similar materials.

  4. The fee for copies is the same regardless of whether copies are produced in response to the request at hand or are drawn from existing stocks including, at the convenience of the Service, original materials or surplus printed materials. See IRM 11.3.13, regarding FOIA requests that involve the release of free IRS publications.

  5. Copy fees apply to records produced by word processing equipment and to computer printouts. Additional charges may apply for searching data processing or word processing equipment in order to produce copies.

  6. See IRM 11.3.5.7.3, below, for procedures on fees for records produced on electronic media.

  7. Even though a FOIA requester specifies inspection rather than a request for copies, copy fees apply when it is necessary to produce a copy to permit inspection as with the following examples:

    1. Original documents require redactions of exempt material prior to inspection

    2. The storage medium does not allow visual inspection

    3. Equipment needed for inspection is not available at the inspection site

    4. Transfer of an open case file would disrupt tax administration

11.3.5.7.2  (03-10-2016)
Searches

  1. The regulations at 26 C.F.R. § 601.702(f) provide for search fees at the salary rate of the person making the search. The regulations also permit the Service to establish an average rate in lieu of doing a computation for each search . The average fee for services of clerical, professional, and supervisory personnel involved in locating records (other than electronic records) is $41.00 for each hour or fraction thereof.

  2. The fee for searches of computerized records is the actual direct cost of the search, including computer search time, runs, tape duplication, other operations, computer programming costs for data base extraction and similar programs, and the operator's salary. Computer costs are described in IRM 11.3.5.7.3 below.

  3. The search fee applies to all searches, including those that take less than one hour beyond any free search time allowance. While charges may be assessed for portions of hours, these portions of less than one hour should be aggregated before "rounding up." For example, if two functions report 20 minutes of search time each, the total billed is one hour. Do not round up each 20 minute charge to one hour and bill the requester for two.

  4. Search time includes planning and managing the search, preparing memorandums or making phone calls to the offices that actually perform the search activity, preparing transmittal memorandums, reporting on the results of the search, and restoring any documents to their proper place in the file. Search efforts include any analysis necessary to determine that a record is subject to the request and any time spent examining a file to identify individual records subject to the request. Search time does not include time spent determining whether to assert an exemption.

  5. Assess one half hour search time for each separate accession when requesting records from Federal Records Centers.

11.3.5.7.3  (03-10-2016)
Fees for Electronic Records

  1. Fees for the use of computers and related data processing equipment are based on actual costs to the Service.

  2. Fees apply to all data processing operations required by the request, regardless of whether they are characterized as conversion to electronic format, searches, runs, matches, analyses, tape duplication, or other terms.

  3. Variations in equipment and operations necessary to service a request preclude establishing a standard fee in many cases. Base actual costs on information provided by the employees performing the services.

  4. In addition to fees based on the equipment used, computer costs may include employee salary. For non-commercial requesters, the charges begin when the cost exceeds the equivalent dollar amount of any free services allowed for the requester's fee category. See 26 C.F.R. § 601.702(f)(5)(i)(B).

  5. Because inquiries using IDRS incur minimal computer time costs, charge only for applicable search time and copies.

  6. Charge for direct costs related to converting (copying, scanning, etc.) records to another medium (electronic) to facilitate delivery of the records to the requester. For example, if you convert paper files to an electronic format to provide records on CD or DVD, the FOIA regulations stipulate fees that reasonably approximate the cost to the IRS of converting them. This includes the cost of transmitting the files to be copied, copying them to the appropriate storage medium and the cost of the storage medium and any protective case or container used for delivery. Use the following guidelines which approximate the current costs of paper to electronic file conversions:

    1. Do not charge a fee for the cost of transmitting or copying files to electronic media representing fewer than 1,000 physical pages. This takes into account the $25.00 minimum fee for any FOIA request.

    2. Assess a $25.00 fee for each CD/DVD if providing files representing 1,000 or more physical pages. This covers the costs of transmitting and copying the files.

    3. Assess a fee of $25.00 for each additional CD, DVD, or other storage device needed to account for the additional transmitting and copying costs.

    4. If you use storage devices other than CDs or DVDs that cost $5.00 or more each, recover this additional cost. Note that CD and DVD costs are minimal, and are already factored into the $25.00 incremental costs associated with providing responsive documents of 1,000 pages or more.

    Note:

    Do not charge fees if you photocopy or scan paper files to facilitate our own review of those documents. This includes costs associated with converting (copying, scanning, etc.) records to another medium (electronic) to upload the records into the electronic case processing system to facilitate our review and processing of the records. This also includes costs for any other activity that our FOIA processing system requires such as copy contract costs incurred to facilitate FOIA reviews.

  7. Requesters will pay fees for electronic services based on their requester category and the fee category of the service provided. Remember to allow all requester categories any free services they are entitled to. Also, remember the $25.00 minimum billing amount when computing the fee.

11.3.5.7.4  (03-10-2016)
Aggregating Requests

  1. When there is reasonable evidence that a requester or group of requesters has submitted a series of requests to avoid search or copy fees, aggregate the requests and apply the appropriate fees for the aggregated request. For example, a requester who previously requested a lengthy list of related records in a single request, now asks for one type of record per request. Also, a requester who asks for a single year’s audit file in one request, but follows that closely with similar requests for additional years. It is not appropriate, however, to advise a requester that "in the future, we will aggregate any requests you submit."

  2. Generally, avoid aggregating requests for unrelated records. A requester who makes separate requests for unrelated records within a short time period is entitled to the free search and copy allowances for each. Some examples of unrelated requests:

    1. Audit records and contract files

    2. A TDA file and collection delegation orders

    3. GCM background files and various IRM sections

11.3.5.7.5  (03-10-2016)
Review

  1. Review is the process of examining records to determine whether to disclose them under the FOIA and to determine if any FOIA exemptions apply. Review includes doing all that is necessary to prepare the records for release, including making any appropriate deletions. Review charges apply only to commercial use requesters.

  2. Charge review fees only for the initial determination to apply FOIA exemptions to requested records. Do not charge the same fees again after appeal of withheld records. However, review charges may be appropriate when exemptions are considered for the first time subsequent to an appeal, such as in the case of a total denial where no review charges were assessed initially.

  3. The regulations at 26 C.F.R. § 601.702(f) provide for review fees at the salary rate of the person performing the review. The regulations also permit the Service to establish an average rate in lieu of individual computations each time records are reviewed. The average fee for services of clerical, professional and supervisory personnel involved in reviewing records is currently $45.00 for each hour or fraction thereof. The provisions for review activities taking less than one hour are identical to those found in IRM 11.3.5.7.2(3), above, for searches.

  4. A subsequent commercial use requester for previously reviewed records will only be responsible for any incremental additional search, review and copy fees required to respond to the request.

11.3.5.7.6  (03-10-2016)
Other Costs

  1. Provide other services and materials not specifically identified elsewhere at actual cost.

  2. Bill actual shipping charges for moving records from one location to another or for an employee's travel to the site of requested records. When shipping records using a shipping service, use the current version of Form 9814, Request for Mail/Shipping Service.

  3. The IRS may, at its discretion, provide and charge fees for services not required by the FOIA.

11.3.5.8  (03-10-2016)
Minimum Billing Amount

  1. If the costs of routine collection and processing of a fee are likely to equal or exceed the amount of the fee, the Freedom of Information Act requires agencies to forego collection of that fee.

  2. In order to comply with this provision, IRS will charge no fee in any FOIA case unless the fee (after accounting for any free search, review or copying efforts) is equal to or exceeds $25.00.

  3. You may combine fees outstanding from prior requests with current charges to meet the $25.00 minimum for billing.

11.3.5.9  (03-10-2016)
Special Provisions

  1. Special fee provisions apply to Privacy Act access requests, requests for copies of returns, requests involving written determinations and requests for Freedom of Information Reading Room materials.

11.3.5.9.1  (03-10-2016)
Privacy Act Access Requests

  1. The Privacy Act of 1974 allows collection of fees for copying records but does not make any provision for search or review fees.

  2. Copy fees for Privacy Act requests are the same as those for Freedom of Information Act requests and the same allowances for free copying apply.

  3. Process Freedom of Information Act and Privacy Act requests from individuals for records about themselves under the fee provisions of the Privacy Act.

11.3.5.9.2  (03-10-2016)
Copies of Returns

  1. You may receive a request for a copy of a tax return on Form 4506, Request for Copy of Tax Return. Forward any Form 4506 requests to the appropriate RAIVS Unit in IRS campuses. This is an IRS routine agency procedure.

  2. Charge the standard FOIA copying fee rather than using the Form 4506 pricing for copies of returns included in the release of a file containing such copies.

11.3.5.9.3  (03-10-2016)
Exempt Organization Returns and Applications

  1. Process requests for copies of exempt organization returns and applications pursuant to I.R.C. § 6104 in accordance with IRM 21.7.7, Exempt Organizations and Tax Exempt Bonds. Requesters will use Form 4506-A, Request for Public Inspection or Copy of Exempt Organization Tax Form, for this purpose.

  2. The Service will charge based on the FOIA fee category of the requester. See IRM 11.3.9 for more information about disclosures of Exempt Organization records.

11.3.5.9.4  (03-10-2016)
Employee Plans Documents

  1. Employee Plans personnel or Disclosure personnel, when appropriate, provide copies of employee plans documents pursuant to I.R.C. § 6104.

  2. The Service will charge a fee for copies furnished based on the FOIA fee category of the requester. See IRM 11.3.10 for more information about disclosures of Employee Plan records.

11.3.5.9.5  (03-10-2016)
Written Determinations

  1. Written determinations include rulings, determination letters, technical advice memoranda, and Chief Counsel advice issued pursuant to I.R.C. § 6110.

  2. The Associate Chief Counsel (Procedure and Administration) in Headquarters processes requests for background files associated with written determinations (6110 requests). Requests for background file documents should contain the requester’s agreement to pay the Service a fee for searching for the file, making deletions, and making copies. The request should state the maximum amount of charges the Service may incur without further authorization from the requester. If the request does not contain a stated maximum amount or the fees will exceed the stated maximum amount, the Service will forward to the requester a payment agreement with the estimated cost for processing the request. The payment agreement must be signed and returned to the Service before the Service will begin processing the file.

  3. The fee for processing a request for background file documents is $100.00 per hour. This fee covers all costs associated with processing the request, including the costs to search for, make deletions to, and copies of the background file documents. See Revenue Procedure 2012-31 for more information.

11.3.5.9.6  (03-10-2016)
Freedom of Information Reading Room Materials

  1. Material in the Freedom of Information Reading Room is not subject to a search fee when made available by the Reading Room.

  2. Disclosure personnel processing requests for Freedom of Information Reading Room materials (rather than referring them to the Freedom of Information Reading Room) do not apply search fees.

  3. Disclosure personnel may apply search fees when it is necessary to obtain the materials elsewhere, such as when former Freedom of Information Reading Room materials are no longer maintained because they have become obsolete.

  4. Determine the copy fees for Freedom of Information Reading Room materials furnished by IRS personnel based on the category of the requester.

11.3.5.10  (03-10-2016)
Requesting and Processing Payments

  1. Request payments using appropriate pattern correspondence that identifies the payment amount, payment types accepted, an address for mailing and a payment due date.

  2. Because Disclosure Offices use an electronic case management system, they generally do not receive and input casework and payments locally.

  3. When the Centralized Processing Unit (CPU) receives an unsolicited payment with an original request, CPU:

    1. scans the request and payment

    2. indexes the request as a new case

    3. suspenses the payment by recording receipt and retaining the payment securely

    4. does not post payment to Payment Manager

    5. distributes a weekly listing of held payments to Disclosure management

    6. follows caseworker instructions to deposit payment or return voided payment instrument to requester using appropriate pattern letter language

      Exception:

      Deposit payments received in the Headquarters mailbox

      Note:

      The Data Services CPU analyst will review the held payments log weekly and will initiate contact with caseworkers to address payments held beyond 20 work days.


    The caseworker:

    1. determines the status of the payment within 20 work days

      Note:

      If unable to determine the fee due or a pre-payment amount within 20 work days, or if the payment received exceeds the fee due, follow the procedures below to have voided payment returned to requester using appropriate pattern letter language.

    2. advises CPU to deposit payment or to return voided payment instrument to requester using appropriate pattern language,

    3. posts fees due on closed cases in Payment Manager

    4. prepares fee payment stubs for billing

    5. posts payment at completion of processing

  4. When case processing or the requester's previous payment history requires a request for advance payment, the caseworker:

    1. estimates the fee as accurately as possible while, to the extent practicable, avoiding overbilling that results in the later issuance of a refund and ,

    2. prepares a fee payment stub for pre-payment.

      Note:

      At the completion of case processing (CPU will have received the advance payment), caseworker determines and posts the fee, posts payment to Payment Manager and prepares a fee payment stub for additional billing or initiates the refund process, as applicable


    When the CPU receives an advance payment (with advance fee payment stub), CPU:

    1. scans a copy of the advance fee payment stub and the payment and indexes as a new case

    2. posts payment to Payment Manager

    3. forwards payment to Beckley Finance Center following instructions in (6), below

  5. As a part of closing out and responding on a processed case, the caseworker will:

    1. determine any appropriate fees,

    2. post fees due in Payment Manager, and

    3. prepare fee payment stubs for billing.


    When CPU receives a payment on a closed case (usually with fee payment stub), CPU:

    1. scans an image of the check into the Responsive Documents section of the closed case,

    2. posts payment to Payment Manager,

    3. notifies caseworker, and

    4. forwards payment to Beckley Finance Center following instructions in (6), below.

  6. CPU prepares Form 3210, Document Transmittal, listing all payments received and not suspensed, the requester name, the payment amount, the check or money order number and date along with the account number for depositing the funds, as follows:

    1. Account 3223 – FOIA requests, PA requests, and miscellaneous. See IRM 11.3.5.2(2)

    2. Account 20X6877 – Returns and return information (I.R.C. § 6103).

  7. CPU forwards Form 3210 and payments to the Beckley Finance Center Accounting section at:


    IRS/Beckley Finance Center
    Attn: DCU
    PO Box 9002
    Beckley, WV 25802-9002

    If using UPS for shipping. If using UPS, forward Form 3210 and payments to:
    IRS/Beckley Finance Center
    Attn: DCU
    110 N. Heber St.
    Beckley, WV 25801

    Note:

    See IRM 10.2.13, Physical Security Program, Information Protection for information on proper shipping procedures for materials containing SBU information or PII. See also Document 13144, Proper PII Shipping Procedures and Document 13056, Shipping Procedures for Personally Identifiable Information (PII).

  8. The Accounting Section will deposit the payments to the appropriate account in accordance with its procedures.

  9. Upon learning that a FOIA payment was misapplied to a taxpayer’s account, unidentified remittance account, or an account other than the appropriate account listed above, the caseworker:

    1. prints the IDRS transcript that shows where the payment was applied, if applicable,

    2. prints or has printed a copy of the payment from the remittance transaction register (RTR) (Disclosure has specific employees with direct access to RTR)

    3. completes debit section of Form 2424, Account Adjustment Voucher, with the name, address, MFT, period, transaction date (TC 670 date), 1st transaction - TC 672, and the debit amount (amount of the total payment misapplied)

    4. completes credit section by entering 5100 in the Name and address section, recording the transaction date (TC 670 date), 1st transaction - TC 670, and the credit amount (must be the same as debit amount)

    5. completes the explanation with the following language - "FOIA payment for case [enter complete case number] misapplied. Must be credited to Beckley for FOIA Acct. – 3223. Please IPAC"

    6. Mail all three documents to:


      Internal Revenue Service
      Attn: RACS - Team 104, Mail Stop 6261
      333 W Pershing
      Kansas City, MO 64108

      Note:

      See IRM 10.2.13, Physical Security Program, Information Protection for information on proper shipping procedures for materials containing SBU information or PII. See also Document 13144, Proper PII Shipping Procedures and Document 13056, Shipping Procedures for Personally Identifiable Information (PII).

    7. posts payment and applies it to the case if it is not already posted there

    8. adds the fee to Payment Manager for the case if not already posted there

    9. advises Disclosure manager to notify original caseworker’s manager if the case was worked by another caseworker. The original caseworker is responsible for taking all applicable corrective actions in (a) through (h) above.

  10. If a requester has previously failed to pay a fee in a timely fashion (i.e., within 35 days of the billing date ), you may require the requester to pay the full amount owed plus any applicable interest (31 U.S.C § 3717), and to make an advance payment of the full amount of the estimated fee before beginning to process a new request or the pending request.

  11. When charging interest, the Service will assess interest starting the 36th day following the billing date. Charge interest at the rate prescribed in 31 U.S.C § 3717. In addition, the Service may take any steps authorized by the Debt Collection Act of 1982, including administrative offset pursuant to 31 C.F.R. Part 9, Disclosure to Consumer Reporting Agencies and Use of Collection Agencies, to encourage repayment.

11.3.5.11  (05-24-2005)
Refunds

  1. Disclosure Managers and the Disclosure Deputy Associate Directors (or their designees) may authorize refund of monies paid in response to a written request whenever:

    1. The Service erred in computing the fees

    2. The Service provided the wrong materials

    3. The Service failed to provide material paid for

      Note:

      See IRM 11.3.5.5.1(4)(d) above

    4. An advance payment resulted in an overpayment

    5. Unusual circumstances make issuance of a refund appear equitable and the requester would not enjoy free access to records that would normally incur a fee

  2. Request refunds by issuing a pattern memorandum from the appropriate designee to the Accounting Section listing the date of the original transaction and identifying:

    1. Account number

    2. Case number (if any)

    3. Name and address of the requester or the payment submitter, as appropriate

    4. Amount of refund.

  3. The Accounting Section will process requests for refunds in accordance with its procedures.


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