11.3.16 Privacy Act Notification Programs

Manual Transmittal

May 02, 2018

Purpose

(1) This transmits revised IRM 11.3.16, Disclosure of Official Information, Privacy Act Notification Programs.

Material Changes

(1) Editorial changes have been made throughout to update IRM/statute/organizational references and to make the text easier to follow.

(2) Changed ownership and responsibilities throughout from Governmental Liaison and Disclosure and Safeguards (GLDS) to Privacy Policy and Compliance (PPC).

(3) IRM 11.3.16.1 - Revised the title 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 11.3.16.1.1, Background - Added brief historical information on Privacy Act notification programs.

  2. IRM 11.3.16.1.2, Authorities - Added legal authorities governing Privacy Act notification programs.

  3. IRM 11.3.16.1.3, Responsibilities - Added Privacy, Governmental Liaison and Disclosure (PGLD) and Servicewide responsibilities concerning Privacy Act notification programs.

  4. IRM 11.3.16.1.4, Terms and Definitions - Definitions from prior IRM 11.3.16.1 was incorporated into this new subsection.

  5. IRM 11.3.16.1.5, Acronyms - Compiled a list of frequently used acronyms and their definitions for Privacy Act notifications programs.

(4) IRM 11.3.16.2 - Moved definitions to IRM 11.3.16.1.4.

(5) IRM 11.3.16.6 - Added references to IRMs 11.3..28, 11.3.35, and 11.3.37

(6) IRM 11.3.16.6.1 - Added references to IRMs 11.3..28 and 11.3.35

Effect on Other Documents

This supersedes IRM 11.3.16, dated August 27, 2013.

Audience

All Operating Divisions and Functions.

Effective Date

(05-02-2018)

Related Resources

The Disclosure and Privacy Knowledge Base is available at:
https://portal.ds.irsnet.gov/sites/vl003/pages/default.aspx.

Frances Kleckley
Director, Privacy Policy and Compliance

Program Scope and Objectives

  1. Purpose: This IRM provides instructions, guidelines, and procedures necessary for Privacy Act notification programs.

  2. Audience: The information and guidance in this IRM applies to all IRS employees and contractors.

  3. Policy Owner: Privacy Policy and Compliance (PPC) is responsible for Privacy Act oversight.

  4. Program Owner: The PPC office, under Privacy, Governmental Liaison and Disclosure (PGLD), is the program office responsible for oversight of the Servicewide Privacy Act notification program.

Background

  1. Section (e)(3) of the Privacy Act requires that individuals be provided certain information so that they can determine whether to provide personal information when federal agencies ask for that information. The information provided allows the individual to make an informed decision of the consequences of not providing all or part of the information.

  2. The section also explains when the Privacy Act requires notice of disclosure of a person's information due to compulsory legal process.

Authorities

  1. The Privacy Act of 1974, as amended, 5 United States Code (USC) § 552a.

  2. Department of the Treasury Regulations appear at Title 31, Part I, Subpart C, of the Code of Federal Regulations. Additional information specific to the IRS is in Appendix B of these regulations.

Responsibilities

  1. The PPC office within PGLD has oversight for IRS-wide compliance with Privacy Act notification programs. The business units have a responsibility to be familiar with the requirements because they prepare documents that ask individuals to fill out forms providing personal information. Contact PPC via the *Privacy mailbox.

Terms and Definitions

  1. For purposes of this IRM section, the following definitions apply:

    Term Definition
    Authority The "authority" that authorizes the solicitation of the information would generally be the applicable sections of the Internal Revenue Code.
    Effects on individual The "effects" upon an individual for not providing all or part of the requested information, including incidental effects such as possible accrual of interest, loss of benefits, initiation of enforcement action, or other applicable results of his or her refusal.
    Individual A citizen of the United States or an alien lawfully admitted for permanent residence (including sole proprietors). The Privacy Act does not apply to any entity which is not a natural person, such as a partnership, corporation, decedent, estate or trust.
    Mandatory or voluntary disclosure Whether the individual is required to provide the information requested or may refuse to do so.
    Principal purpose(s) The reason the information is needed, which is the overall reason for which the IRS performs the operation in which the information is to be used, rather than the detailed processing which it is to undergo.
    Routine uses The disclosure of a record outside the Department of the Treasury for a purpose which is compatible with the purpose for which it was collected.

Acronyms

  1. The following acronyms are used in this IRM section:

    Acronym Definition
    PGLD Privacy, Governmental Liaison and Disclosure
    PPC Privacy Policy and Compliance
    USC United States Code

Notice to Individuals Asked to Supply Information

  1. The Privacy Act of 1974 (5 USC § 552a(e)(3)) requires each agency that maintains a system of records, to inform each individual requested to supply information (either on the form it uses to collect the information, or on a separate form that can be retained by the individual), of:

    1. The authority (whether granted by statute or by Executive Order of the President) which authorizes the solicitation of the information and whether disclosure of such information is mandatory or voluntary for tax matters;

    2. The principal purpose(s) for which the information is intended to be used.

    3. The routine uses that may be made of the information; and

    4. The effects on the individual, if any, of not providing all or any part of the requested information.

      Note:

      See IRM 11.3.16.1.4 above for the definitions of applicable terms used in this list.

      Caution:

      Care should be taken in drafting the notice to ensure that the individual is not misled or inadvertently coerced.

  2. This provision is intended to ensure that individuals from whom information about themselves is collected are informed of the reasons for requesting the information, how it may be used, and what the consequences are, if any, of not providing the information.

  3. Implicit in this provision is the notion of informed consent since an individual should be provided with sufficient information about the inquiry to make an informed decision on whether or not to respond.

  4. The intent of the Privacy Act is that the notice be informative to the recipient. In order to be meaningful to the average person, it should avoid the use of technical language and should not be so lengthy as to discourage or confuse the reader. The content should summarize rather than itemize the information required so as to avoid unnecessary detail.

  5. This provision of the Privacy Act is applicable only to inquiries in which the individual is requested to provide information about himself or herself or his or her own affairs. It does not pertain to inquiries directed to third parties asking for information about someone else.

  6. The provision applies both to taxpayers and to other persons to whom inquiries about themselves may be addressed, such as IRS employees.

    Note:

    Pursuant to 5 USC § 552a(j), Treasury has exempted IRS Criminal Investigation records from the application of the 5 USC § 552a(c)(3) notification requirement.

Notice to Individuals Asked to Disclose Their Social Security Account Number

  1. Section 7 of the Privacy Act of 1974 provides that it is unlawful for any Federal, State, or local government agency to deny to any individual any right, benefit, or privilege provided by law because of such individual’s refusal to disclose his or her social security account number.

  2. The Tax Reform Act of 1976 allows a State or political subdivision to require the disclosure of Social Security Numbers to establish the identity of any person affected by:

    • Any tax law

    • Any general public assistance law

    • Any driver's license law

    • Any motor vehicle registration law

    • In the issuance of birth certificates and enforcement of child support orders

    Exception:

    An exception is made for any disclosures which are required by Federal statute, and for a disclosure to any Federal, State, or local government agency maintaining a system of records in existence and operating before January 1, 1975, if such disclosure was required under statute or regulation adopted prior to such date for the purpose of verifying the identity of an individual.

  3. An agency which requests an individual to disclose his or her social security account number is to inform the individual:

    1. Whether the disclosure is mandatory or voluntary;

    2. By what statutory or other authority such number is solicited; and

    3. What uses will be made of it.

  4. The authority for requiring the use of social security account numbers as identifying numbers for tax administration purposes is provided by IRC § 6109.

  5. The Notice to Individuals Asked to Disclose Their Social Security Account Numbers, when required by a request related to tax administration purposes is integrated with the Notice to Individuals Asked to Supply Information, and has therefore no existence as a separate form.

The "Umbrella" Approach for Tax Returns

  1. The various inquiries made of individuals by the IRS in the course of tax administration are basically part of a single process. Rather than include the identical notice information in numerous forms or letters which represent repeated contacts with the same individual pertaining to the same situation, the IRS has adopted an "umbrella" approach in which the initial contact of a series includes a notice which the individual may retain and which would be applicable to all future inquiries related to that situation. This approach spares the recipient from receiving repetitious and unnecessary identical notices.

  2. A universal notice included in the Form 1040 and Form 1040A instruction packages applies to:

    1. U.S. Individual Income Tax Returns;

    2. Declarations of estimated tax;

    3. Any other tax returns required to be filed by an individual;

    4. Schedules, statements, or other documents related to the returns;

    5. Subsequent inquiries necessary to complete, correct and process the returns of taxpayers;

    6. Determining the correct tax liability; and

    7. Collection of any unpaid tax, interest or penalty.

  3. This initial notice fulfills the notice requirements insofar as any further inquiries are concerned in the normal course of IRS Campus processing, including initial billing of tax due on the returns.

  4. Although the notice provided with the return instruction package would be legally adequate for subsequent inquiries, the IRS makes available a further notice, designated as Notice 609, Privacy Act and Paperwork Reduction Act Notice, for use when a distinct series of actions takes place beyond Campus processing.

  5. Notice 609 is revised as necessary to conform to the wording used for the universal notice approved for inclusion in the Form 1040/1040A instruction packages.

  6. Notice 609 is distributed to:

    1. Taxpayers subject to collection activity on Taxpayer Delinquent Accounts

    2. Taxpayers subject to Taxpayer Delinquency Investigations (in accordance with instructions provided by the appropriate Division Commissioner) and

    3. Taxpayers whose returns are selected for examination in accordance with instructions provided by the appropriate Division Commissioner

  7. Additional copies of Notice 609 are provided to any taxpayer upon request.

  8. The distribution of Notice 609 described in (6) and (7) above does not require any individual documentation as such distribution is made in addition to the minimal legal requirement.

  9. The distribution of the universal notice plus the distribution of separate Notice 609 for the collection related stream and the examination related stream should satisfy the notice requirement for all tax administration inquiries which can be anticipated.

    Note:

    For Notice 609 purposes, the Appeals process is considered a continuation of the examination and collection processes.

  10. In the event that field officials encounter circumstances requiring additional notices, a further distribution of Notice 609 may be made if the wording appears appropriate to the circumstances.

  11. Separate notices for tax administration purposes should not be adopted without prior concurrence of the:

    1. Appropriate Headquarters function;

    2. Director, PPC (contact PPC via the *Privacy mailbox); and

    3. Office of Chief Counsel (Procedure and Administration).

Notices Not Related to Tax Administration

  1. The Privacy Act requirements for a notice to individuals asked to supply information, and a notice to individuals asked to disclose their social security account numbers, are also applicable to inquiries not related to tax administration, such as requests for information from IRS employees for administrative purposes.

  2. The variety of information requested on such forms has made the use of a universal notice inappropriate. Accordingly, such forms will generally have individual notices. The notices should be included in the form itself, whenever feasible.

  3. The inclusion of necessary privacy notices in administrative forms is the responsibility of the records owner. Such notices require approval of the Director, PPC (contact PPC via the *Privacy mailbox). If necessary, Director, PPC staff will coordinate with the Office of Chief Counsel (Procedure and Administration) regarding privacy act notices not related to tax administration.

Notifying Individuals That Their Records Were Made Available to a Person Under Compulsory Legal Process

  1. Subsection (e)(8) of the Privacy Act requires that agencies "make reasonable efforts to serve notice on an individual when any record on such individual is made available to any person under compulsory legal process when such process becomes a matter of public record."

  2. This provision applies to disclosures made pursuant to:

    1. Subpoenas and summonses,

    2. The order of a court of "competent jurisdiction," as authorized by subsection (b)(11) of the Privacy Act, and

    3. An IRC § 6103(i) ex parte order.

      Note:

      See also IRM 11.3.28 and IRM 11.3.35 for disclosure of tax return and return information, and IRM 11.3.37 for the accountings required by 6103(p)(3).

  3. This provision does not apply to disclosures made pursuant to a written request by, or with the written consent of, the individual to whom the record pertains and consequently does not apply if the process leading to disclosure is at the behest or on the behalf of the subject of the record.

  4. While this provision does not apply to disclosures made pursuant to subsections (b)(1), (2), (4)-(10), and (12) of the Privacy Act, this provision does apply when a disclosure is made pursuant to a routine use as provided by subsection (b)(3) that authorizes disclosures in response to subpoenas or court orders.

  5. This provision does not apply to disclosures from a system of records exempt pursuant to subsection (j)(2) of the Privacy Act, as they are not subject to the subsection (e)(8) notification requirement.

Notification Procedure

  1. This procedure will be carried out by the person making the disclosure following established procedures for the compulsory legal process. Disclosure may be contacted for guidance when needed at the *Disclosure mailbox..

  2. Any compulsory legal process which appears to make an individual’s record (which is subject to the Privacy Act) available to a third party should be carefully examined to determine whether it is subject to the notification procedure.

    Note:

    The notification procedure only becomes effective if the record is actually disclosed. Nothing in this instruction should be interpreted as authorization for any disclosure.

  3. Notice is to be given within five working days of making a disclosure pursuant to compulsory legal process, except as provided in (4) below.

  4. If the disclosure is made in response to a grand jury subpoena or an ex parte order pursuant to IRC § 6103 (i)(1), IRC § 6103(i)(5), or IRC § 6103(i)(7)(C), the notice should not be given until the subpoena or order becomes a matter of public record. If the subpoena or order does not indicate whether it is a matter of public record, it may be necessary to request the issuing authority to advise the IRS when the matter becomes public so that the required notice may be issued. See also IRM 11.3.28 and IRM 11.3.35 for notification rules involving ex parte orders in judicial, administrative or grand jury situations.

  5. The notice will be mailed to the individual’s last known address. One copy of the notice should be maintained in the administrative or other file from which the disclosed documents originated. One copy should be associated with the record disclosed, if practical.