11.3.8 Disclosure of Written Determinations

Manual Transmittal

April 21, 2017

Purpose

(1) This transmits revised text for IRM 11.3.8, Disclosure of Official Information, Disclosure of Written Determinations.

Material Changes

(1) Editorial changes have been made throughout to update IRM/statute/organizational references and terms. Web and citation references were added/updated throughout to make the text easier to research in electronic media.

(2) Revised the title of IRM 11.3.8.1 to Program Scope and Objectives, to properly reflect the information communicated in this subsection. Included important information to conform to the new internal and management control standards under the following titles:

  1. IRM 11.3.8.1.1, Background - Added information about the background of policies pertaining to Written Determinations.

  2. IRM 11.3.8.1.2, Authority - Added legal authorities pertaining to the IRS Written Determination process.

  3. IRM 11.3.8.1.3, Responsibilities - This IRM applies to all IRS personnel and contractors who provide records under the provisions of IRM 11.3 Disclosure of Official Information.

  4. IRM 11.3.8.1.4, Acronyms - Compiled a list of frequently used acronyms pertaining to the Written Determination process.

  5. IRM 11.3.8.1.5, Related Resources - Added related resources applicable to the Written Determination process.
    All other subsequent subsections were renumbered accordingly.

(3) Deleted section 11.3.8.2, Definitions, since this information is now incorporated in the internal controls section added to IRM 11.3.8.1. All other subsections were renumbered accordingly.

(4) IRM 11.3.8.2, Fees and Billing Procedures, information from (1) and (2) were switched for clarity.

(5) IRM 11.3.8.5.1, Disclosure Disputes, new (4) added to provide additional resources on disclosure disputes.

(6) IRM 11.3.8.6, Indexes of Headquarters Written Determinations, clarified language in (1) to better identify the title and location of the index.

(7) IRM 11.3.8.7 changed title to Form SS-8 Written Determinations, to distinguish the guidance in this section of Written Determinations.

(8) IRM 11.3.8.7.1, Headquarters Written Determinations, updated section with address and fax number of the Disclosure Centralized Processing Unit where these types of requests should be sent for processing. Also changed any mention of "Chief, Headquarters Disclosure Office" , throughout this IRM to "Disclosure Centralized Processing Unit" .

(9) IRM 11.3.8.8, changed title to, Headquarters Freedom of Information Act Electronic Reading Room. Also added the word "Electronic" to other portions of this IRM that reference the FOIA Reading Room.

(10) IRM 11.3.8.9, Mailing Lists, removed (2) from this section since the information is no longer relevant.

(11) IRM 11.3.8.10, Disclosure Manager Responsibilities, clarified procedure in this section to correspond with the procedure in IRM 11.3.13, Freedom of Information Act (FOIA). Also added references to IRM 11.3.13 throughout this section as appropriate.

Effect on Other Documents

This material supersedes IRM 11.3.8, dated April 22, 2011.

Audience

All Operating Divisions and Functions.

Effective Date

(04-21-2017)

Related Resources

The Privacy and Disclosure Virtual Library can be found at: https://organization.ds.irsnet.gov/sites/vldp/default.aspx

Phyllis T. Grimes
Director
Governmental Liaison, Disclosure and Safeguards

Program Scope and Objectives

  1. Purpose: This IRM section covers disclosures of and public access to Written Determinations. Written determinations include the following:

    1. Private Letter Rulings (PLR)

    2. Technical Advice Memoranda (TAM)

    3. Determination Letters

    4. Chief Counsel Advice (CCA); and

    5. Ruling letters issued by the office of Exempt Organizations of Tax Exempt and Government Entities (TE/GE) Division denying or revoking tax exempt status.

  2. A Written Determination does not include the following:

    1. any advance pricing agreement entered into by a taxpayer and the Secretary,

    2. any background information related to an advance pricing agreement,

    3. any application for an advance pricing agreement,

    4. any closing agreement under IRC §7121; or

    5. background information related to a closing agreement.

      Note:

      See IRC §6110(b)(1), IRC §6103(b)(2)(C), and IRC §6103(b)(2)(D) for additional information.

  3. Audience: These procedures apply to all IRS employees and contractors.

  4. Policy Owner: The Disclosure office, under Governmental Liaison, Disclosure and Safeguards (GLDS) is responsible for oversight of Disclosure policy.

  5. Program Owner: The GLDS office, under Privacy, Governmental Liaison and Disclosure (PGLD), is the program office responsible for oversight of the Servicewide Disclosure policy.

  6. Primary Stakeholders: The following offices have the responsibility for preparing and issuing Written Determinations:

    • Office of the Associate Chief Counsel (Procedure and Administration)

    • Office of the Associate Chief Counsel (Corporate)

    • Office of the Associate Chief Counsel (Financial Institutions and Products)

    • Office of the Associate Chief Counsel (Income Tax and Accounting)

    • Office of the Associate Chief Counsel (Passthroughs and Special Industries)

    • Office of the Division Counsel/Associate Chief Counsel, TE/GE

    • Office of the Associate Chief Counsel (International)

    • Office of the Commissioner, TE/GE

Background

  1. IRS Written Determinations are documents the IRS is required to make available for public inspection and can be found online at the FOIA Electronic Reading Room. The public inspection provisions only apply if the written determination is issued. It is important to note that pursuant to IRC §6110(k)(3), written determinations cannot be used or cited as precedent.

  2. In general there are three types of IRS written determinations:

    • Taxpayer-specific rulings or determinations - furnished by IRS National Office in response to a request by a taxpayer for a written determination.

    • Technical Advice Memoranda (TAM) - furnished by National Office upon request of a Director or chief appeals officer.

    • Chief Counsel Advice (CCA) - furnished by any national office component of the Office of Chief Counsel and issued to field employees of the IRS or Office of Chief Counsel

Authority

  1. The following items govern the authority pertaining to the publication of Written Determinations:

    • IRC §6110

    • 26 CFR §301.6110

    • IRC §6103

    • Revenue Procedure Proc. 2017-1, Revenue Procedure Proc. 2017-2, and Revenue Procedure Proc. 2017-4 (as updated annually and published as the first, second, and fourth revenue procedures each year).

    • 5 USC §§552 and 552(a)

Responsibilities

  1. This IRM is used by all IRS employees to help comply with the disclosure provisions of IRC §6110 pertaining to Written Determinations.

Acronyms

  1. The following is a list of the acronyms that are used in this IRM section:

    Acronyms

    Acronym Definition
    CCA Chief Counsel Advice
    CCDM Chief Counsel Directives Manual
    CFR Code of Federal Regulations
    CPU Centralized Processing Unit
    FOIA Freedom of Information Act
    GLDS Governmental Liaison, Disclosure and Safeguards
    IRC Internal Revenue Code
    IRM Internal Revenue Manual
    PGLD Privacy, Governmental Liaison and Disclosure
    PLR Private Letter Ruling
    SB/SE Small Business Self Employed
    TAM Technical Advice Memorandum
    TE/GE Tax Exempt and Government Entities
    USC United States Code


Related Resources

  1. The following table lists other sources of guidance on written determinations:

    Resource Title Guidance
    IRM 11.3.5 Disclosure of Official Information, Fees Determining fees for public inspection of agency records
    IRM 11.3.13 Disclosure of Official Information, Freedom of Information Act (FOIA) Requests for access to written determination information under the FOIA
    Chief Counsel Directives Manual (CCDM) 37.1.1 Written Determinations Under Section 6110 Procedures for the processing of written determinations for public inspection under IRC §6110
  2. Additional information may also be found at these related resources:

Fees and Billing Procedures

  1. Pursuant to IRC §6110, all billing for fees associated with requests for background file documents are performed by personnel of the Disclosure and Litigation Support Branch. The calculation of fees associated with requests for issuance of private letter rulings are performed by personnel of the Docket, Records, and User Fee Branch. Both branches are within the Legal Processing Division, Office of the Associate Chief Counsel (Procedures and Administration), hereafter referred to as Counsel's Legal Processing Division.

  2. Instructions relating to fees and billing procedures for services performed in connection with the public inspection of written determinations are provided in IRM 11.3.5, Fees.

Documents Requiring Preparation for Release

  1. This section contains instructions regarding documents requiring preparation for release.

Written Determinations

  1. Requests for written determinations issued pursuant to a request made on or after November 1, 1976, are handled by Counsel's Legal Processing Division.

  2. The initial preparation of written determinations for inspection is performed in connection with the issuance process and is the responsibility of the employee assigned to issue the determination.

  3. Within Headquarters, the following offices have the responsibility for preparing and issuing written determinations:

    • Office of the Associate Chief Counsel (Procedure and Administration)

    • Office of the Associate Chief Counsel (Corporate)

    • Office of the Associate Chief Counsel (Financial Institutions and Products)

    • Office of the Associate Chief Counsel (Income Tax and Accounting)

    • Office of the Associate Chief Counsel (Passthroughs and Special Industries)

    • Office of the Division Counsel/Associate Chief Counsel, TE/GE

    • Office of the Associate Chief Counsel (International)

    • Office of the Commissioner, TE/GE

  4. Additional processing (such as requests for additional deletions) and preparation for printing are performed by Counsel's Legal Processing Division.

  5. All written determinations, released each week pursuant to IRC §6110, are available online at a link provided in the Freedom of Information Act (FOIA) Electronic Reading Room at: https://www.irs.gov/uac/electronic-reading-room .

  6. In Field Offices, Form SS-8 written determinations are issued by the Small Business and Self-Employed (SB/SE) operating division.

  7. Prior written determinations are those issued pursuant to a request made prior to November 1, 1976. Prior written determinations fall within two categories:

    1. Reference written determinations: any written determination that the Commissioner determines to be the basis for a published revenue ruling, unless such revenue ruling is obsoleted, revoked, superseded, or otherwise held to have no effect; and

    2. General written determinations: any other written determination.

  8. General written determinations issued prior to July 5, 1967 will be prepared for release only in response to a written request.

  9. The preparation of prior written determinations for inspection is the responsibility of Counsel's Legal Processing Division.

  10. Prior written determinations issued by District Directors are not subject to release.

Background File Documents

  1. Background File Documents include:

    1. The request for a written determination,

    2. Any written material submitted in support of such request by the person who made the request (or such person's authorized representative),

    3. Any written communication, or memorandum of a meeting, telephone communication, or other contact between Internal Revenue Service (IRS) personnel and anyone outside the IRS about a written determination, received before the issuance of the written determination, except as excluded in (2) below, and

    4. Any subsequent communication between Headquarters and area business division concerning the factual circumstances underlying the request for a technical advice memorandum, or concerning a request by the area business division for reconsideration by the Headquarters of a proposed technical advice memorandum.

  2. Background File Documents do not include:

    1. Communications between the Department of Justice and the IRS relating to any pending civil or criminal case or investigation,

    2. Communications within the IRS,

    3. Internal memoranda or attorney work products prepared within the IRS, including the Transmittal Memorandum for a technical advice memorandum,

    4. Correspondence or any portion of correspondence relating solely to making deletions pursuant to the release of written determinations or relating to a request for postponement of the release of written determinations,

    5. Material relating to a request for a written determination that is withdrawn prior to issuance or that the IRS declines to answer, a request for technical advice or Chief Counsel Advice that Headquarters declines to answer, or the appeal by a taxpayer of a business divisions' decision not to seek technical advice,

    6. A response to a request for technical advice that the area business division declines to adopt, and the area business divisions' subsequent request for reconsideration, or

    7. The application and supporting documents for an organization denied exempt status or the examination file for an organization whose exempt status was revoked.

  3. Background File Documents for written determinations that have been released for public inspection are made available upon specific written request.

  4. The preparation for public inspection of Background File Documents (for written determinations issued by Headquarters) is the responsibility of Counsel's Legal Processing Division.

  5. The preparation for public inspection of the Form SS-8 Background File Documents is the responsibility of SB/SE.

Third Party Communications

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

  2. Such record will be considered a Background File Document as detailed in IRM 11.3.8.3.2 above.

  3. A notation that such communication has been made will be placed on the written determination when it is released to the public. The notation will consist of the date of the communication and the category of person making the communication, such as the following:

    • Congressional

    • Department of Commerce

    • Department of the Treasury

    • Trade Association

    • White House

    • Educational Institution

  4. The notation does not apply to any communication made by the Chief of Staff of the Joint Committee on Taxation per IRC §6110(d)(2), nor does it apply to communications between the Internal Revenue Service and Department of Justice with respect to a pending civil or criminal case or investigation (IRC §6110(d)(2)).

  5. Any person may request that the IRS disclose the name of the person making the communication. Such name will not be provided by the IRS if it would indirectly identify the taxpayer.

  6. Provisions exist for a person to obtain a court order requiring release of the identity of the recipient of a written determination involving a third party contact, and for the recipient or the third party to intervene in opposition to such action. See IRC §6110(d)(3).

Exemptions

  1. Certain information contained in written determinations or background file documents is exempt from release to the public.

Enforcement Cases

  1. The IRS is not required to make available to the public any technical advice memorandum or Chief Counsel advice or any related background file document involving any matter that is the subject of a civil fraud, criminal investigation, jeopardy or termination assessment until after any action relating to such investigation or assessment is completed. The material may then be made available if a written request is made for inspection.

Accounting and Funding Methods and Periods

  1. The IRS is not required to make available to the public, except upon written request, written determinations that relate solely to approval of any adoption of or change in the following:

    1. The funding method or plan year of a plan under IRC §412,

    2. A taxpayer’s annual accounting period under IRC §442,

    3. A taxpayer’s method of accounting under IRC §446(e), or

    4. A partnership’s or partners’ taxable year under IRC §706.

Exempt Organizations, Employee Plans, and Tax Convention Information

  1. IRC §6110 does not apply to any matter to which IRC §6104 or IRC §6105 applies.

Information Subject to Deletion

  1. Before making any written determination or background file documents (other than Chief Counsel Advice) available for public inspection, specific information shall be deleted:

    1. Names, addresses, and other identifying details of any person, other than the identifying details of a person who makes a third party communication discussed in IRM 11.3.8.3.3,

    2. Any information that would indirectly identify any person in the written determination,

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

    4. Information specifically exempted from disclosure by any statute (other than the Internal Revenue Code) that is applicable to the IRS,

    5. Trade secrets and commercial or financial information obtained from a person and privileged or confidential,

    6. Information, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy,

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

    8. Geological and geophysical information and data, including maps, concerning wells.

    Note:

    See CCDM 37.1.1 for additional information.

  2. For written determinations designated as Chief Counsel Advice, specific information shall be deleted in accordance with subsection (b) and (c) of 5 United States Code (USC) §552, except that no section of Title 26 (IRC) can be asserted in conjunction with 5 USC §552(b)(3). See IRM 11.3.13, Freedom of Information Act (FOIA).

Disclosure Disputes

  1. The preparation of a current written determination or background file documents for release to the public includes providing the person to whom the written determination pertains with a notice of intention to disclose such documents and with a copy of the text as proposed for release.

  2. Administrative and judicial remedies are provided whereby the person to whom the written determination pertains may attempt to restrain disclosure.

  3. Provisions also exist for administrative and judicial action to provide for additional disclosure of materials deleted or to compel disclosure of materials that have been improperly withheld.

  4. See CCDM 37.1.1 for additional information on Disclosure Disputes.

Indexes of Headquarters Written Determinations

  1. Counsel’s Legal Processing Division’s index of Headquarters Written Determinations is available online at the FOIA Electronic Reading Room at: https://www.irs.gov/uac/electronic-reading-room.

  2. Each current written determination is coded with a nine digit identification number (seven digits for written determinations issued prior to 1999). The first four digits represent the year, the next two digits the week of the year, and the last three digits the number assigned to the written determination for index purposes.

    Example:

    200901001 indicates that it is the first written determination issued for public inspection in the first week of 2009.

  3. The index is organized by Code section and lists the nine digit identification number for those written determinations that have been released. Requesters of copies of written determinations are encouraged to make their requests by the identification number, but may request all written determinations pertaining to a Code section.

  4. The IRC §6110 Index is identified as Publication 1078, and is organized as follows:

    1. An index is issued each week during which current written determinations are released;

    2. The weekly index includes that week’s new issuances (identified by asterisks) plus all issuances released during prior weeks of that same year. Consequently, each weekly index grows larger and supersedes the prior week’s index;

    3. The final weekly index of any year constitutes the cumulative yearly index. The first weekly index of the next year begins a new series and contains only that week’s issuances;

    4. In order to have a complete index of all current written determinations, it is necessary to have each yearly index issued to date, plus the latest weekly index.

Form SS-8 Written Determinations

  1. Requests for sanitized copies of worker classification determinations, background file documents, and other statistical information about determinations are available from the address listed in the "Where to File" section of the Instructions for Form SS-8, Determination of Worker Status for Purposes of Federal Employment Taxes and Income Tax Withholding, to determine which location to forward requests.

Headquarters Written Determinations

  1. Any request relating to a Headquarters written determination will be mailed or faxed to the Disclosure Centralized Processing Unit (CPU) for response.

    Mailing Address Fax Number
    IRS FOIA Request - HQ FOIA
    Stop 211
    PO Box 621506
    Atlanta, GA 30362-3006
    877-807-9215
  2. The receiving office will advise the requester of the procedure and request that any future requests be properly submitted to the Disclosure Centralized Processing Unit.

  3. It may be necessary to split a request and provide partial service locally if a request covers both area and Headquarters written determinations.

Headquarters Freedom of Information Act Electronic Reading Room

  1. The Freedom of Information Act Electronic Reading Room will receive current Headquarters written determinations released by Counsel's Legal Processing Division every Friday.

Headquarters Services

  1. The Freedom of Information Act Electronic Reading Room will maintain the written determinations received in identification number order.

  2. Members of the public may view written determinations maintained in the FOIA Electronic Reading Room and any indexes thereto. These written determinations are posted on the IRS website at: https://www.irs.gov/uac/electronic-reading-room.

  3. Indexes may be found in their entirety or in segments pertaining to specified sections of the Code.

  4. Any request received for Background File Documents will be forwarded by the Disclosure staff member to Counsel's Legal Processing Division, that will perform any necessary billing services.

Mailing Lists

  1. The internet site at https://www.irs.gov/uac/electronic-reading-room constitutes the only automatic distribution of written determinations and indexes that can be provided.

Disclosure Manager Responsibilities

  1. Disclosure staff members are responsible for providing advice and assistance to any member of the public seeking access to written determinations.

  2. For any IRC §6110 request received for written determinations, indexes or related materials available to the public, the Disclosure staff member will refer the requester to the Headquarters Freedom of Information Act Electronic Reading Room.

  3. If combined IRC §6110 and Freedom of Information Act (FOIA) requests are received, forwarding and notification instructions contained in IRM 11.3.8.7.1 above should be followed for the processing of the IRC §6110 part of the request. Routine FOIA processing instructions should be used for the remaining portion of the request. See IRM 11.3.13, Freedom of Information Act (FOIA).

  4. Disclosure staff processing FOIA or Privacy Act requests may encounter written determinations subject to IRC §6110 within a file being requested. See IRM 11.3.13.9.1 for information on how to process a request for written determinations under the FOIA.