13.1.5 Taxpayer Advocate Service (TAS) Confidentiality

Manual Transmittal

August 27, 2020

Purpose

(1) This transmits a complete revision to IRM 13.1.5, Taxpayer Advocate Case Procedures, Taxpayer Advocate Service (TAS) Confidentiality.

Material Changes

(1) 13.1.5.1 Updated to incorporate the Internal Controls per IRM 1.11.2.1.

(2) 13.1.5.2 Added discussion of how this chapter fits into the Taxpayer Bill of Rights, and updated an external hyperlink in paragraph 4.

(3) 13.1.5.3 Added new paragraph 2 about the Freedom of Information Act. Added definition of a felony in paragraph 3 and clarified procedures related to reporting suspected felonies. Clarified reporting of indicators of fraud. In paragraph 4, added examples of fraud indicators, discussed the standard the IRS must meet to establish fraudulent intent, explained how TAS employees report refund schemes affecting multiple taxpayers. Added new paragraph 5 to discuss reporting practitioner misconduct to the Office of Professional Responsibility. Clarified the disclosure rules for a subpoena apply to all types of litigation.

(4) 13.1.5.4 Removed paragraph 2 that discussed nonstandard disclosure procedures before that concept was introduced. Added a note clarifying that TAS Confidentiality does not protect information received from sources other than the taxpayer or taxpayer's representative. Separated the discussion of protecting documents from protecting TAMIS and TAS work products. Added a cross reference to an example found elsewhere in this chapter.

(5) 13.1.5.5 Clarified which TAS management officials above the LTA have TAS confidentiality authority. Added a new IRM cross reference in section (5). Added an exception explaining how TAS responds to Freedom of Information Act requests. References to Area Directors changed to DEDCAs to reflect current TAS organizational alignment.

(6) 13.1.5.7 Clarified the note in paragraph 1. Added paragraph 2 to clarify when TAS uses the nonstandard disclosure procedures to make fraud referrals or report suspected felonies, and explains how to make such referrals when the nonstandard disclosure procedures do not apply.

(7) 13.1.5.8 Rewrote first sentence for clarity.

(8) 13.1.5.8.1 Added a definition of a standard disclosure to paragraph 1, and explained how it relates to the OAR process. Converted a note into paragraph 2. Removed all references in paragraph 2 to disclosing TAMIS history to provide relief. Added a second example of a standard disclosure in paragraph 2.

(9) 13.1.5.8.3.1 Updated an IRM cross reference and its related link.

(10) 13.1.5.8.3.2 Added cross reference to procedures TAS employees use to report refund schemes affecting multiple taxpayers.

(11) 13.1.5.8.3.3 Added new paragraph 2 and example explaining disclosure of noncompliance to Criminal Investigation. Added new paragraph 3 about disclosures related to IRS personnel actions. Added new paragraph 4 about requests for TAS employee testimony.

(12) 13.1.5.8.3.4 Updated an IRM cross reference and its related link.

(13) 13.1.5.9 Updated section title to reflect new material added. Added introductory sentence and a second cross reference to paragraph 1. Added paragraphs 2, 3, 4, and 5 for disclosures related to litigation.

(14) 13.1.5.10 Consultation with the TAS Attorney Advisor handling confidentiality matters and with the Counsel to the NTA added to paragraphs 2, 5, 6, and 8. Throughout the section, all references to Area Directors changed to DEDCAs to reflect current TAS organizational alignment. Paragraph 6 split up into two separate steps, creating a new paragraph 7. Adjusted the time frames given in the paragraph 8 table.

(15) 13.1.5.11 Added new section describing three disclosure scenarios involving stolen identities.

(16) 13.1.5.12 Added new section describing procedures for disclosing practitioner misconduct. Includes an example.

(17) 13.1.5.13 Added information about how to determine the current Attorney-Advisor for Confidentiality.

(18) Grammar, punctuation, and minor wording changes throughout the IRM.

Effect on Other Documents

The IRM 13.1.5, dated February 1, 2011, is superseded.

Audience

Taxpayer Advocate Service employees

Effective Date

(08-27-2020)

Erin Collins
National Taxpayer Advocate

Program Scope and Objectives

  1. Purpose: This section explains the Local Taxpayer Advocate’s (LTA’s) discretion not to disclose certain information to the IRS pursuant to Internal Revenue Code (IRC) § 7803(c)(4)(A)(iv).

  2. Audience: These procedures primarily apply to LTAs and Case Advocates (CAs). However, all TAS employees should reference this IRM when addressing confidentiality and disclosure questions.

  3. Policy Owner: The National Taxpayer Advocate is the owner of the policies contained in this IRM.

  4. Program Owner: The National Taxpayer Advocate is responsible for the administration, procedures, and updates related to this program.

Background

  1. IRC § 7803(c)(4)(A)(iv) provides that each LTA, may, at the taxpayer advocate’s discretion, not disclose to the Internal Revenue Service contact with, or information provided by, such taxpayer.

  2. Any reference to a taxpayer in this chapter also includes a taxpayer’s authorized representative, as IRC § 7803(c)(4)(A)(iv) also extends to contact with representatives and information provided by representatives

  3. TAS plays an important role in protecting taxpayer rights and promoting taxpayer confidence in the integrity and accountability of the IRS. TAS employees resolve taxpayer problems and disputes between taxpayers and the IRS. To succeed, TAS employees must be viewed, both in perception and reality, as an independent and impartial voice for the taxpayer within the IRS. To promote such independence, IRC § 7803(c)(4)(B) requires each local office of the Taxpayer Advocate to maintain a separate telephone, facsimile, and electronic communication access, as well as a separate post office address. Confidentiality plays an important role in promoting TAS’s independence.

Authority

  1. IRC § 7803(c)(4)(A)(iv) provides LTAs with the authority not to disclose to the IRS contact with or information provided by the taxpayer.

  2. Other laws may supersede this discretion and may require LTAs to disclose taxpayer contact or taxpayer-provided information. See IRM 13.1.5.3.

  3. If information is not provided by the taxpayer (or the taxpayer's representative), then the confidentiality procedures described in this chapter do not apply. See IRM 13.1.5.7.

  4. If information is to be disclosed to a party other than the IRS, then the confidentiality procedures described in this chapter do not apply. See IRM 13.1.5.5 (5).

Responsibilities

  1. LTAs may exercise the discretion not to disclose information to the IRS or determine if disclosure may be warranted. See IRM 13.1.5.5.

  2. Deputy Executive Directors Case Advocacy (DEDCAs) will have discussions with LTAs before the LTA exercises this discretion in nonstandard disclosure situations.

  3. The National Taxpayer Advocate or designee will review LTA and DEDCA recommendations and make a confidentiality determination in nonstandard disclosure situations. See IRM 13.1.5.10.

Program Reports

  1. Reports to monitor the quality of TAS cases are derived from TAMIS and the TAS Case Quality Review System (CQRS). The CQRS generates monthly and fiscal year cumulative reports as well as specific queries for data analysis.

  2. TAS performs managerial reviews designed to ensure TAS employees are taking advocacy focused actions to facilitate case resolution.

Terms

  1. The following contains a list of terms used throughout this IRM.

    Term Definition
    Alternative Dispute Resolution The use of methods such as mediation, arbitration, and negotiation to resolve a dispute instead of litigation.
    Confidentiality Confidentiality is the protection of personal information. Each Local Taxpayer Advocate may, at the taxpayer advocate’s discretion, not disclose to the Internal Revenue Service contact with, or information provided by, a taxpayer (or a taxpayer’s authorized representative).
    Emergency Disclosure An emergency disclosure is where TAS discloses taxpayer provided information to the IRS when the taxpayer is likely to be immediately harmed if the IRS does not take prompt action or cease an action (e.g., release a levy), and TAS is unable to contact the taxpayer to obtain consent to disclose information to the IRS.
    Nonstandard Disclosure A nonstandard disclosure is when no other type of disclosure to the IRS applies (e.g., standard or emergency disclosure) and TAS discloses taxpayer provided information to the IRS. There are three types of nonstandard disclosures: disclosure to prevent harm to health or safety, disclosure to address a systemic problem, and other disclosures, including disclosures to address noncompliance.
    Ombud(s) Person(s) to whom taxpayers may come with complaints and questions and who resolve disputes between taxpayers and the IRS without litigation.
    Right to Confidentiality Taxpayers have the right to expect that any information they provide to the IRS will not be disclosed unless authorized by the taxpayer or by law. Taxpayers have the right to expect the IRS to investigate and take appropriate action against its employees, return preparers, and others who wrongfully use or disclose taxpayer return information.
    Standard Disclosure A standard disclosure is one where TAS discloses taxpayer provided information to the IRS with the taxpayer's consent to obtain relief for the taxpayer.
    Systemic Advocacy Management System (SAMS) SAMS is an online portal through which taxpayers, practitioners, and IRS and TAS employees submit systemic issues to TAS.
    Taxpayer Bill of Rights (TBOR) Congress enacted the TBOR in IRC § 7803(a)(3) to require the Commissioner to ensure IRS employees respect taxpayers’ rights in their interactions with the IRS. TBOR groups the existing rights in the tax code into ten fundamental rights, and makes them clear, understandable, and accessible.
    Taxpayer Advocate Management Information System (TAMIS) TAS uses TAMIS to record, control, and process cases and to analyze the issues that bring taxpayers to TAS.

Acronyms

  1. The following table contains a list of acronyms and their definitions used throughout this IRM.

    Acronym Definition
    ABA American Bar Association
    ACS Automated Collection System
    ADR Alternative Dispute Resolution
    CA Case Advocate
    CCDM Chief Counsel Directives Manual
    CFR Code of Federal Regulations
    CI Criminal Investigation
    CNC Currently Not Collectible
    Cong. Rec. Congressional Record
    DEDCA Deputy Executive Director Case Advocacy
    Dept. Department
    DNTA Deputy National Taxpayer Advocate
    DOJ Department of Justice
    EDCA Executive Director Case Advocacy
    EDSA Executive Director Systemic Advocacy
    EITC Earned Income Tax Credit
    ESI Electronically Stored Information
    Fed. Reg. Federal Register
    FOIA Freedom of Information Act
    GAO Government Accountability Office
    GLS General Legal Services
    IRC Internal Revenue Code
    IRM Internal Revenue Manual
    IRS Internal Revenue Service
    ITIN Individual Taxpayer Identification Number
    IVO Integrity & Verification Operation
    LTA Local Taxpayer Advocate
    No. Number
    NTA National Taxpayer Advocate
    OAR Operations Assistance Request
    OPR Office of Professional Responsibility
    PGLD Privacy, Governmental Liaison and Disclosure
    Pub. L. No. Public Law Number
    RPO Return Preparer Office
    RRA 98 Internal Revenue Service Restructuring and Reform Act of 1998
    SAMS Systemic Advocacy Management System
    SB/SE Small Business/Self-Employed Division
    SSN Social Security Number
    TAG Technical Analysis and Guidance
    TAMIS Taxpayer Advocate Management Information System
    TAO Taxpayer Assistance Order
    TAS Taxpayer Advocate Service
    TBOR Taxpayer Bill of Rights
    TIGTA Treasury Inspector General for Tax Administration
    Treas. Reg. Treasury Regulation
    U.S.C. United States Code

Related Resources

  1. Additional information is located on the TAS intranet under Case Advocacy Tools under the TAS Confidentiality Templates link. Direct links to the Confidentiality Questionnaires and Routing Slip are shown below:

    • NTA Confidentiality Determination.

    • Confidentiality Questionnaire Routing Slip.

    • Case Advocate Confidentiality Questionnaire.

    • Local Taxpayer Advocate Confidentiality Questionnaire.

    • Systemic Advocacy Confidentiality Questionnaire.

  2. The NTA Attorney-Advisor for Confidentiality may change periodically. You can locate the current assigned Attorney-Advisor on the TAS intranet at http://tas.web.irs.gov/fpdl/templates/7668.aspx or contact the Supervisory Attorney Advisor for current contact information.

  3. The Office of the Division Counsel/Associate Chief Counsel (NTA Program) is available if you need guidance about how IRC § 7803(c)(4)(A)(iv) applies in your casework.

Why Confidentiality is Important to Taxpayers and TAS

  1. The discretion not to disclose under IRC § 7803(c)(4)(A)(iv) is one of the statutes that underlie the Right to Confidentiality found in the Taxpayer Bill of Rights (TBOR). The IRS Commissioner and the National Taxpayer Advocate announced the IRS adoption of the TBOR on June 10, 2014. On December 18, 2015, Congress added new paragraph (a)(3) to IRC § 7803 to require the Commissioner to ensure IRS employees are familiar with, and act in accordance with, the TBOR. See Pub. L. No. 114-113, Division Q, section 401. For more information about other statutes that protect the Right to Confidentiality and the other nine rights in TBOR, see What the Taxpayer Bill of Rights Means for You at http://www.taxpayeradvocate.irs.gov/taxpayer-rights/right-8.

  2. Confidentiality is often viewed as essential to any relationship in which one party is charged with representing, advocating on behalf of, or negotiating for another party. See, e.g., IRC § 7525 (extending the traditional attorney-client confidentiality privilege to communications between taxpayers and federally authorized tax practitioners). Senator John Breaux, a sponsor of RRA 98 in the Senate, explained the importance of TAS confidentiality as follows:

    "We are really trying to build some walls between the IRS and the Taxpayer Advocate and their work with the taxpayers, the American citizens of this country, to make sure that they, the taxpayers, know the person they are dealing with is independent, has their interests at heart, and doesn’t have to go report to the Internal Revenue Service district director about what he or she has discussed or talked about with the taxpayer who is seeking assistance.… There will be someplace they can go, which will be independent of the IRS, which will have as their first, second, third, and last mission to help that taxpayer. They can be comfortable there will not be communication or sharing of information of their discussions with the Taxpayer Advocate with the Internal Revenue Service. I think this is a very important part of the bill that is before the Senate today." Cong. Rec. S4239, S4240 (May 5, 1998) (Statement of Senator John Breaux).

  3. TAS employees function as "ombuds" - persons to whom taxpayers may come with complaints and questions and who resolve disputes between taxpayers and the IRS without litigation. When TAS employees resolve disputes, they provide a form of alternative dispute resolution (ADR).

  4. TAS modeled its confidentiality policies and procedures after guidance developed and published by the Federal ADR Steering Committee and the American Bar Association (ABA). Confidentiality is a key element of ADR. See Administrative Dispute Resolution Act of 1996 (ADR Act), 5 U.S.C. § 574. Further, confidentiality is considered an essential characteristic of ombuds offices. Both the ADR Act and the ABA Standards for the Establishment and Operation of Ombuds Offices explicitly acknowledge the role confidentiality plays in bringing parties in a dispute to resolution. See American Bar Association, Revised Standards for the Establishment and Operation of Ombuds Offices, 14 (adopted Feb. 9, 2004) located at:http://www.americanbar.org/content/dam/aba/migrated/child/PublicDocuments/ombudsmen_1.authcheckdam.pdf. (last visited May 1, 2019); Federal Alternative Dispute Resolution Council, Department of Justice, Confidentiality in Federal Alternative Dispute Resolution Programs, 65 Fed Reg. 83,085 (Dec. 29, 2000). The ABA Standards provide:

    An ombuds does not disclose and is not required to disclose any information provided in confidence, except to address an imminent risk of serious harm. Records pertaining to a complaint, inquiry, or investigation are confidential and not subject to disclosure outside the ombuds’s office. An ombuds does not reveal the identity of a complainant without that person’s express consent. An ombuds may, however, at the ombuds’s discretion disclose non-confidential information and may disclose confidential information so long as doing so does not reveal its source. An ombuds should discuss any exceptions to the ombuds’s maintaining confidentiality with the source of the information.
    ***
    Confidentiality is an essential characteristic of ombuds that permits the process to work effectively. Confidentiality promotes disclosure from reluctant complainants, elicits candid discussions by all parties, and provides an increased level of protection against retaliation to or by any party. Confidentiality is a further factor that distinguishes ombuds from others who receive and consider complaints such as elected officials, human resource personnel, government officials, and ethics officers.

  5. TAS’s discretion not to disclose taxpayer information to the IRS serves the following purposes:

    1. To strengthen TAS’s independence and neutrality.

    2. To encourage taxpayers to trust and seek help from TAS without fear of retaliation by other IRS employees.

    3. To encourage taxpayers to freely communicate with TAS in order to resolve their problems with the IRS.

    4. To calm taxpayers’ fears that information provided to TAS will be used to harm them.

Other Federal Laws or Policies Relevant to TAS’s Disclosure of Taxpayer's Information When Working a TAS Case

  1. IRC § 6103 and the Privacy Act of 1974 (5 U.S.C. § 552a) generally protect taxpayer returns and return information from disclosure, subject to statutory exceptions. See IRM 9.3.1, Criminal Investigation, Disclosure and Publicity, Disclosure, IRM 11.3.1 , Introduction to Disclosure, and IRM 10.5.6 , Privacy Act.

  2. The Freedom of Information Act (FOIA), 5 U.S.C. § 552, as amended, provides for public access to records and information maintained by federal agencies. The FOIA applies to records either created or obtained by an agency and under agency control at the time of the FOIA request. All existing TAS records are subject to FOIA requests, including records maintained by the NTA and headquarters employees. The FOIA contains numerous exemptions and exclusions under which records may be withheld. See IRM 11.3.13, Freedom of Information Act (FOIA), and IRM 13.1.10.13, Freedom of Information Act.

  3. The failure to report a felony can be a "misprision of felony," which is a federal crime under 18 U.S.C. § 4. A person is guilty of misprision of felony if he or she has knowledge of the actual commission of a felony, conceals it, and does not make it known to a person in authority as soon as possible. Generally under federal law and in many states, a felony is any crime punishable by imprisonment for more than one year. This statute may be invoked when it relates to some other tax, money laundering, or currency violation. See IRM 9.1.3.4.3, 18 U.S.C. § 4 - Misprision of Felony. No TAS employee will conceal a felony. If TAS employees are unsure whether something is a felony, they should seek advice from the Office of Chief Counsel per IRM 13.1.10.2 , Obtaining Legal Advice from Chief Counsel. TAS employees who follow the nonstandard disclosure procedures in IRM 13.1.5.10 to report their knowledge of a felony to their LTA as soon as possible will be deemed to meet their obligation to make it known to a person in authority.

    Caution:

    Although it is a crime to not report a felony, in some situations IRC § 6103 will prohibit TAS employees from reporting certain crimes to the appropriate law enforcement agency. For example, see the identity theft example in IRM 13.1.5.11 (3).

  4. IRC § 7214(a)(8) requires all Federal employees acting in connection with internal revenue laws who have knowledge or information of violations of such laws, or knowledge of fraud committed under such laws, to report such violations in writing to the Secretary of the Treasury. (Treas. Reg. § 301.7214-1 states the violation should be reported to the Commissioner.) Failure to report such violations could result in termination, fines, or imprisonment. Mere suspicion of fraud is not enough; employees must have a firm indication of fraud to trigger the IRC § 7214(a)(8) reporting requirement.

    1. The policies and procedures established by the National Taxpayer Advocate (NTA) for implementing IRC § 7803(c)(4)(A)(iv) require the reporting of criminal violations and fraud committed under the internal revenue laws, consistent with IRC § 7214(a)(8).

    2. If a TAS employee believes that a taxpayer has committed (or will commit) a criminal or fraudulent violation of an internal revenue law, and the taxpayer has declined to work with TAS to bring the violation to the IRS’s attention (or prevent the violation), and the TAS employee received any of the information about the alleged fraud or offense from the taxpayer, the employee will follow nonstandard disclosure procedures in IRM 13.1.5.10 to report the violation (or potential violation) of an internal revenue law to the NTA for appropriate action. By reporting the violation (or potential violation) to the NTA using the nonstandard disclosure procedures in IRM 13.1.5.10, the CA and the LTA have complied with IRC § 7214(a)(8) even if the NTA determines no disclosure to the Commissioner is warranted. Thus, in certain situations, IRC § 7803(c)(4)(A)(iv) will take precedence over IRC § 7214(a)(8) .

      Note:

      If the TAS employee received none of the information about the alleged fraud or offense from the taxpayer, do not use the nonstandard disclosure procedures. Instead, see IRM 13.1.5.7.

    3. The requirement to report criminal violations and acts of fraud arises when a taxpayer refuses to work with TAS to achieve compliance (or avoid noncompliance) with the internal revenue laws. See IRM 13.1.5.8.3.3. However, even if the taxpayer continues to work with TAS, employees should follow the nonstandard disclosure procedures if the taxpayer does not act in a timely fashion, especially if there is an imminent threat of financial harm to the IRS or another taxpayer.

    4. Fraud is defined as an intentional wrongdoing designed to evade tax believed to be owing. The IRS must prove this fraudulent intent, but direct proof is rarely available. The IRS uses indicators or badges of fraud (identified via court precedent) to establish circumstantial evidence of fraudulent intent. These indicators include omission of entire sources of income, concealment of bank accounts or other property, substantial overstatement of deductions, presenting false or altered documents to claim credits, and maintaining multiple sets of books or records. See IRM 25.1.2.3, Indicators of Fraud, and IRM 25.1.6.3, Evidence of Fraud, for additional examples.

    5. The IRS must meet a much higher standard to establish fraudulent intent than it does to show mere negligence or substantial understatement. For example, in Cheek v. United States, 498 U.S. 192 (1991), the United States Supreme Court held that a good-faith misunderstanding of the law or a good-faith belief that one is not violating the law negates willfulness, whether or not the claimed belief or misunderstanding is objectively reasonable. Thus, if the court credits the taxpayer’s assertion that he truly believed an incorrect interpretation of the Internal Revenue Code, the Government has not carried its burden to prove willfulness, however unreasonable a court might deem such a belief. Of course, in deciding whether to credit the taxpayer’s claim, the court is free to consider any admissible evidence showing that the taxpayer had knowledge of his legal duties.

    6. TAS employees who identify an emerging refund fraud scheme affecting multiple taxpayers will submit a summary of the scheme on the Systemic Advocacy Management System (SAMS) as soon as possible. Include "refer to Task Force 24194" in the submission description. Describe the nature of the scheme and badges of fraud, but do not enter any personally identifiable information in the summary. Include TAMIS case number examples if available. You will receive an acknowledgement, but no further contact unless Systemic Advocacy needs further information. TAS employees who timely follow this SAMS process meet their obligation to report emerging schemes.

  5. Treasury Dept. Circular No. 230 (Circular 230) [31 CFR Part 10] provides the rules of practice applicable to persons representing taxpayers before the IRS, including sanctions for violating any of those rules. Section 10.53(a) of Circular 230 provides that if an IRS officer or employee has reason to believe a practitioner has violated any of the rules of practice, the officer or employee must make a written report to the appropriate IRS Office(s) responsible for administering/enforcing Circular 230 (i.e., report to the Office of Professional Responsibility (OPR) or the Return Preparer Office (RPO) regarding the suspected violation). How TAS employees comply with section 10.53(a) of Circular 230 will depend on whether TAS has consent of the taxpayer to make the report. If the taxpayer consents to revealing the representative's actions to OPR/RPO, the TAS employee will make a standard disclosure to OPR or RPO per IRM 13.1.5.8.1. If the taxpayer does not consent to the disclosure, follow the nonstandard disclosure procedures in IRM 13.1.5.10 to report the matter to the NTA, who will then make the written report to OPR or RPO. See IRM 13.1.5.12 for an example of when reporting a suspected violation may be appropriate, and IRM 13.1.23.5, Complaints from Taxpayers About Representatives, for additional information.

  6. The discretion not to disclose under IRC § 7803(c)(4)(A)(iv) does not apply to disclosures to persons other than the IRS. This means that requests from the Treasury Inspector General for Tax Administration (TIGTA), Government Accountability Office (GAO), the Department of Justice, the United States Attorney’s Office, or persons requesting information pursuant to the FOIA are not subject to the confidentiality provision in IRC § 7803. Similarly, the discretion not to disclose does not apply in the context of litigation. Follow the procedure described in IRM 13.1.5.5 (5) and IRM 13.1.5.9 when dealing with these requests.

  7. TAS employees must report bomb threats and similar emergency situations immediately. See http://serp.enterprise.irs.gov, under the link for Emergency Info at the top of the screen for procedures employees should use in various emergency situations. In addition, see IRM Exhibit 10.2.8-1, Incidents To Be Reported to SAMC, for a detailed list of incidents that must be reported.

  8. TAS employees must also report to TIGTA and other appropriate law enforcement personnel:

    1. Threats of serious bodily harm or injury to self or others;

    2. Employee crimes or other official misconduct as described by RRA 98 § 1203(b); and

    3. Any request by a taxpayer that TAS assist in defrauding the United States, conspire against the United States, or participate in or further any violation of the internal revenue laws.

    Note:

    Violations of the internal revenue laws may require disclosure to TIGTA, the IRS’s Criminal Investigation Division, or the Department of Justice.

Principles to Guide TAS’s Exercise of Discretion under IRC § 7803(c)(4)(A)(iv)

  1. To protect TAS independence, TAS policy generally favors nondisclosure, except in cases involving standard disclosures, emergency disclosures and disclosures to avoid harm to health or safety. These types of disclosure are explained in IRM 13.1.5.8.

  2. TAS’s exercise of discretion should:

    1. Promote broad expectation of confidentiality among taxpayers, TAS personnel, and other IRS personnel.

    2. Protect documents and statements (oral or written) received from the taxpayer or the taxpayer’s representative.

      Note:

      Identify where the information came from. If the information did not come from the taxpayer or the taxpayer's representative, TAS Confidentiality procedures under IRC § 7803(c)(4)(A)(iv) are not applicable.

    3. Protect notes (e.g., TAMIS history) and TAS work products that contain taxpayer provided information or the identity of a taxpayer.

    4. Recognize exceptional situations where strong legal and policy concerns require disclosure.

  3. In those instances where TAS discloses contact with a taxpayer or taxpayer-provided information to the IRS, disclosure should be limited to the information necessary to achieve the desired objective. See the second example in IRM 13.1.5.8.1.

    Note:

    TAS personnel must avoid disclosing TAMIS history to the IRS. Even in cases where TAS discloses information to the IRS, TAS will not allow the IRS direct access to TAMIS and will not provide the IRS with copies of TAMIS history. See IRM 13.1.5.8.1 (2) and the example in IRM 13.1.5.8.3.3. Although certain IRS employees have access to reports that contain TAMIS information, that access is very limited, and they do not have access to TAMIS history. For example, Wage and Investment Operations Assistance Request (OAR) Liaisons have access to the OAR Reports allowing them to compile information about the status of OARs TAS sent to them, but they are unable to access TAMIS history.

Discretion Not to Disclose: IRC § 7803(c)(4)(A)(iv)

  1. In response to a request from an IRS employee, an LTA may exercise discretion not to disclose contact with, or information provided by, the taxpayer or the taxpayer’s representative. The LTA must complete the LTA Confidentiality Questionnaire and follow the procedures in IRM 13.1.5.10 if the LTA either wants to exercise such discretion or believes a nonstandard disclosure is warranted.

  2. TAS’s discretion not to disclose information to the IRS may also be exercised by every intervening line supervisory position above the LTA up to and including the NTA. See IRM 1.11.4.4.1, Intervening Position Authority.

  3. Any determination by an LTA to either withhold from or disclose to the IRS contact with, or information provided by, the taxpayer or the taxpayer’s representative will be reviewed in accordance with the procedures provided in IRM 13.1.5.10.

  4. Although TAS will usually honor a taxpayer’s request to keep taxpayer-provided information confidential, TAS is not required by IRC § 7803(c)(4)(A)(iv) to honor such a request.

  5. TAS may withhold information from the IRS (including the Criminal Investigation Division) pursuant to IRC § 7803(c)(4)(A)(iv). See IRM 13.1.5.8.3.3. This discretion does not apply to requests for information from anyone other than the IRS. This means requests from TIGTA, GAO, the Department of Justice, the United States Attorney’s Office, or persons requesting information pursuant to the FOIA are not subject to the confidentiality provision in IRC § 7803(c)(4)(A)(iv). Requests from these non-IRS sources must still comply with the disclosure exceptions provided for under IRC § 6103.

    Caution:

    Case Advocates (CAs) should never disclose tax returns or return information to non-IRS personnel without prior approval except when disclosure is necessary to prevent harm to health or safety.
    Identify who is requesting the information. When a CA receives a request from someone outside the IRS, the CA should immediately advise the LTA, who will contact the DEDCA. The CA and LTA Questionnaires do not need to be used for this type of request. The DEDCA will then contact Counsel to the NTA for advice and notify the NTA, DNTA, and EDCA. Consultation with the Disclosure Office may be appropriate in some cases.

    Exception:

    Taxpayers should send FOIA requests to Disclosure as described at https://www.irs.gov/uac/irs-disclosure-offices. See IRM 13.1.10.13, Freedom of Information Act, for guidance on how TAS employees respond to FOIA requests. Disclosure will contact all IRS offices that may have documents pertinent to the FOIA request, including TAS. Upon contact from Disclosure, notify the TAS FOIA Coordinator in Technical Analysis and Guidance (TAG) through the *TAS TAG Policy and Guidance mailbox, as TAG documents FOIA requests for TAS to respond to TIGTA inquiries. If a TAS employee receives a FOIA request directly from a member of the public, the employee should forward it immediately to Disclosure. A TAS employee receiving a FOIA document request from Disclosure for a taxpayer seeking his own case information still notifies the DEDCA, and the DEDCA will notify the EDCA, but the Disclosure Office will be the primary source for answers to any LTA or DEDCA questions about the process. If the LTA or DEDCA needs further guidance or disagrees with the advice of the Disclosure Office, the LTA or DEDCA should seek advice from their local SB/SE Division Counsel contact. If, after discussion with SB/SE Division Counsel, the LTA or DEDCA still has concerns, contact the Counsel to the NTA. If the FOIA request includes a request for copies of Taxpayer Assistance Orders (TAOs) or IRS TAO responses, the LTA or DEDCA must seek advice from the Counsel to the NTA. See IRM 13.1.20.7, Release of TAOs and Written IRS Responses, for additional information.

Communicating Confidentiality Rules to Taxpayers and Taxpayers’ Representatives

  1. In the first contact with a taxpayer or the taxpayer’s representative, TAS personnel must explain the confidentiality rule of IRC § 7803(c)(4)(A)(iv). TAS personnel should also tell taxpayers (or their representatives) they will generally need to provide information to IRS personnel in order to resolve the taxpayer’s problem.

  2. The following is an example of what TAS employees could tell a taxpayer or taxpayer’s representative when he or she contacts TAS:

    The Internal Revenue Code gives the Taxpayer Advocate Service the discretion not to disclose certain information to the IRS. To provide you the assistance or relief you are requesting, however, the Taxpayer Advocate Service will likely have to disclose to the IRS at least some of the information you provide. If you ask me not to disclose to the IRS what you tell me or the fact that you have contacted the Taxpayer Advocate Service, the Taxpayer Advocate Service will generally honor your request.

  3. When TAS personnel need to expand the scope of what they disclose to the IRS beyond what the taxpayer or his or her representative agreed to in order to assist the taxpayer, TAS policy requires they seek consent from the taxpayer or taxpayer’s representative, unless such disclosure is required by law or permitted pursuant to emergency or nonstandard disclosure procedures, which are described in IRM 13.1.5.8.2 or IRM 13.1.5.8.3.

Information Subject to Nondisclosure to the IRS

  1. Information subject to nondisclosure under IRC § 7803(c)(4)(A)(iv) includes:

    1. The fact that a taxpayer or taxpayer’s representative contacted TAS.

    2. Information (including documents) provided to TAS by a taxpayer or taxpayer’s representative.

    3. TAMIS information, notes, and internal TAS memos or analysis containing taxpayer-provided information or the identity of a taxpayer who contacted TAS.

    Note:

    Identify where the information came from. If the information comes to TAS from the taxpayer or the taxpayer’s representative, TAS has discretion not to disclose. If, however, the same information comes to TAS from a third party or from IRS records, IRC § 7803(c)(4)(A)(iv) does not apply.

  2. If TAS decides to make a fraud referral, report the violation of internal revenue laws, or report the possible commission of a felony, then the nonstandard disclosure procedures in IRM 13.1.5.10 must be used if TAS gains information about the alleged fraud or offense from the taxpayer or taxpayer's representative. In contrast, if TAS gains information about the alleged fraud or violation from a source other than the taxpayer or taxpayer's representative, and the information is not already known to the IRS, then TAS makes the referral by completing Form 3949, Information Report Referral, without going through the nonstandard disclosure procedures in IRM 13.1.5.10.

Types of Disclosure to the IRS

  1. IRC § 7803(c)(4)(A)(iv) determinations to disclose to the IRS information described in IRM 13.1.5.7 are made as follows:

    1. Standard Disclosures may be made by case advocates (CAs) without prior approval.

    2. Emergency Disclosures require pre-approval by an LTA.

    3. Nonstandard Disclosures require approval by the NTA (or designee), unless immediate disclosure is necessary to prevent serious bodily harm or harm to the public health or safety.

Standard Disclosure

  1. Standard disclosure is the most frequent type of disclosure. A standard disclosure is one where TAS discloses taxpayer provided information to the IRS with the taxpayer's consent in order to obtain relief for the taxpayer. The CA should disclose to the IRS only the information necessary in order for TAS to obtain the appropriate relief. Case advocates typically make standard disclosures through the Operations Assistance Request (OAR) process described in IRM 13.1.19. Completion of the Case Advocate Confidentiality Questionnaire discussed in IRM 13.1.5.10 is not necessary.

    Example:

    The taxpayer is requesting an audit reconsideration (see IRM 4.13.1, Audit Reconsiderations). The only way TAS can assist the taxpayer is to provide other IRS employees with the information the taxpayer provided to TAS so the IRS can re-evaluate the results of a prior audit and possibly adjust the taxpayer’s account based upon the information. The CA may make a standard disclosure of such information to assist the taxpayer, provided TAS informed the taxpayer a disclosure may be necessary and the taxpayer has not asked TAS to refrain from disclosing the information. The CA does not need approval from the LTA to disclose the information.

  2. Not all information provided to TAS needs to be disclosed to the IRS to resolve a taxpayer’s case. Keep in mind the taxpayer’s right to privacy and only disclose the relevant information. TAS employees should not provide copies of TAMIS history (or any other access to TAMIS) to an IRS Operating Division.

    Example:

    The CA asks a taxpayer for financial information and expense verification to send to the Automated Collection System (ACS) to support a request for Currently Not Collectible (CNC) status. The CA explains this information will be disclosed to the IRS so TAS can advocate for this relief. Upon receipt of the information, the CA discovers none of the allowable expenses exceed local or national standards, so TAS does not need to advocate for allowing an expense amount exceeding the standards. Based on the amount of the taxpayer's unpaid balance, current ACS guidance requires expense verification only if the expenses exceed the local or national standards. The CA makes a standard disclosure by sending an OAR to ACS recommending CNC status. The OAR includes the financial information secured from the taxpayer, but not the expense verification (receipts for medical expenses, etc.). The CA discloses to the IRS only the information necessary to advocate for relief. The CA does not need to consult with or seek approval from the LTA to disclose the information.

Emergency Disclosure

  1. When the taxpayer is likely to be immediately harmed if the IRS does not take prompt action or cease an action (e.g., release a levy), and TAS is unable to contact the taxpayer to obtain consent to disclose information to the IRS, an LTA may authorize a CA to make an emergency disclosure of information necessary to resolve the taxpayer’s problem. Standard disclosure may not be available because the taxpayer requested assistance in writing and TAS is unable to reach the taxpayer to inform him or her that such information may need to be disclosed to the IRS.

    Example:

    TAS received a Form 911, Request for Taxpayer Advocate Service Assistance (And Application for Taxpayer Assistance Order), containing a financial statement (Form 433-A, Collection Information Statement for Wage Earners and Self-Employed Individuals), and a letter, explaining a wage levy was in place and a paycheck is scheduled for the following week. The taxpayer also provided a copy of an eviction notice, stating if the taxpayer does not make a rent payment within ten days, the taxpayer will be evicted. The taxpayer did not provide a phone number on the form, and the telephone directory does not contain a listing for the taxpayer. The only method available to contact the taxpayer is by letter. If TAS does not disclose taxpayer-provided information to the IRS, the taxpayer is likely to be immediately harmed by the levy (i.e., the taxpayer will be evicted). To avoid such harm, TAS needs to contact an Automated Collection System (ACS) employee to negotiate a release of the levy because TAS has no authority to release a non-systemic levy (seeIRM 13.1.4 , TAS Authorities). The CA should promptly recommend to the LTA that TAS disclose the taxpayer’s financial statement to ACS so TAS can negotiate release of the levy.

  2. In general, pre-approval for the emergency disclosure should be obtained from the LTA in writing. When time is of the essence, however, oral approval for the emergency disclosure may be given, but the CA must document in the TAMIS history that oral approval was obtained.

Nonstandard Disclosure

  1. When no other type of disclosure to the IRS applies (e.g., standard or emergency disclosure), nonstandard disclosure procedures should be used. There are three types of nonstandard disclosures, discussed below:

    • Disclosure to prevent harm to health or safety,

    • Disclosure to address a systemic problem, and

    • Other disclosures, including disclosures to address noncompliance.

Disclosure to Prevent Harm to Health or Safety
  1. If a taxpayer has taken steps or threatened to take steps to cause harm to health or safety, then TAS personnel should use common sense in disclosing this information to TIGTA or appropriate law enforcement personnel (including IRS security, if appropriate). TAS personnel should report such circumstances immediately to IRS security or TIGTA pursuant to IRM 10.2.8.2 , Incident Report, in accordance with local procedures. Seehttp://serp.enterprise.irs.gov Emergency Info at the top of the screen for procedures employees should use in various emergency situations.

  2. If disclosure is necessary to prevent harm to health or safety, although prior approval is not required, TAS personnel must also report such incidents to their manager. TAS personnel do not need to use the Confidentiality Questionnaires in such circumstances.

    Example:

    The taxpayer came into a TAS office because he was being audited and believed the Examiner was taking an unreasonable position. During the visit the taxpayer stated he would shoot the Examiner. Even if the taxpayer asked the Case Advocate (CA) not to tell the IRS, the CA should alert TIGTA immediately in accordance with IRM 10.2.8.2 , Incident Report, and IRM 21.1.3.10 , Safety and Security Overview, and then report to a TAS manager.

Disclosure to Address a Systemic Problem
  1. IRM 13.1.21.1.2.1.5.1 requires TAS employees to report identified systemic problems on SAMS. IRM 13.1.5.3 (4)(f) explains how TAS employees report emerging refund fraud schemes affecting multiple taxpayers.

  2. If TAS identifies a systemic problem with an IRS process, and the IRS Operating Division requests specific case examples to assist in solving the problem, the NTA may approve disclosure of taxpayer-provided information to the Operating Division after weighing the potential benefits of disclosure to the IRS against the importance of protecting TAS independence and maintaining the confidence of taxpayers in future cases.

    Example:

    TAS learns IRS personnel are working a particular type of case incorrectly. The IRS Operating Division has been unable to validate this problem using its own quality review process. The IRS Operating Division requests that TAS provide specific examples where the Operating Division employees erred so that management can get a better understanding of how and when such errors occur. Redacted information would not be useful because the Operating Division would not be able to pull up information about the cases in its case processing databases. The Operating Division agrees that the taxpayer-specific information will not be disclosed to IRS employees currently working on the cases identified by TAS. After weighing the potential benefits of disclosure to the IRS against the importance of protecting TAS independence and maintaining the confidence of taxpayers in future cases, the NTA may approve disclosure of taxpayer provided information to the Operating Division.

Other Disclosures, Including Disclosures to Address Noncompliance
  1. If a taxpayer declines to take the steps necessary to come into compliance with federal tax laws, or the CA believes that taxpayer-provided information should be disclosed to the IRS and the taxpayer disagrees, the CA must follow the procedures in IRM 13.1.5.10 to determine whether disclosure may be made.

    Example:

    The taxpayer contacted TAS because he did not receive his EITC refund. The taxpayer had been working with Exam, but believes it has taken too long to get his refund. In discussions with the taxpayer, the CA learns that the taxpayer and his wife have both been filing as Head of Household and claiming the EITC on separate returns for the past five years. The CA informed the taxpayer of the filing requirements and asked the taxpayer to prepare amended returns for all open years. The taxpayer then declined further assistance from TAS. This is a nonstandard case because the taxpayer no longer wants assistance from TAS and has refused to file amended returns, which would bring the past violation to the IRS’s attention. The CA must elevate the nonstandard disclosure question to the LTA in accordance with the procedures in IRM 13.1.5.10.

  2. TAS may receive requests from the IRS Criminal Investigation (CI) Division for information about a TAS case. If the request is in connection with a Department of Justice (DOJ) case and CI is assisting DOJ, TAS has no discretion to withhold the information. See IRM 13.1.5.5 (5) and IRM 13.1.5.9. If the CI request is not in connection with litigation, then TAS follows the nonstandard disclosure procedures in IRM 13.1.5.10 to determine whether to disclose to CI.

    Example:

    The Integrity & Verification Operation (IVO) is holding a taxpayer's refund. The CA completed the initial contact with the taxpayer by telephone, during which the CA requests documentation from the taxpayer to verify wages and withholding. While the CA is waiting for the taxpayer to send this documentation, a local CI special agent contacts the CA. The special agent advises the CA that CI opened an investigation of the taxpayer, and the agent noticed TAS has an open control on the account. The special agent asks the CA for a copy of the TAMIS history to assist their investigation. After determining the CI request is part of a CI investigation but CI has not yet made a referral to DOJ, the CA and LTA follow the nonstandard disclosure procedures per IRM 13.1.5.10.

Considerations in a Nonstandard Disclosure Case
  1. In making determinations about nonstandard disclosures, TAS will consider first whether such disclosure is necessary to prevent the following:

    1. a manifest injustice;

    2. a violation of law;

    3. economic harm to the public fisc or another person; or

    4. harm to the health or safety of any individual or the public.

  2. If the disclosure is necessary per the factors above, TAS will determine whether the need for such disclosure outweighs the importance of protecting TAS’s independence and maintaining taxpayer confidence in TAS in the future.

    Note:

    For nonstandard cases involving situations 1 through 3, above, TAS will evaluate the information using the Confidentiality Questionnaires. When disclosure is necessary to prevent harm to health or safety, as described in factor 4, however, TAS personnel do not need to use the Confidentiality Questionnaires. Instead, TAS personnel should immediately follow disclosure procedures provided in IRM 10.2.8.2, Incident Report, and IRM 21.1.3.10, Safety and Security Overview.

  3. In addition to weighing these factors, other federal laws legally limit TAS discretion to not disclose. See IRM 13.1.5.3 for details.

Disclosure to Counsel, DOJ, or the U.S. Attorney's Office

  1. To assist taxpayers, TAS employees may need to seek legal advice from the IRS Office of Chief Counsel. TAS employees can disclose taxpayer-provided information to the IRS Office of Chief Counsel, even if the taxpayer has not agreed to disclosure. Disclosure to Counsel is not considered disclosure to the IRS within the meaning of IRC § 7803(c)(4)(A)(iv). Further, Counsel cannot disclose to the IRS (including CI) any information subject to nondisclosure pursuant to IRC § 7803(c)(4)(A)(iv) (including the identity of the taxpayer seeking TAS’s assistance) that TAS discloses during these consultations. See IRM 13.1.10.2, Obtaining Legal Advice from Chief Counsel, and CCDM 33.1.2.4.3.3.2, Role of Counsel in the Section 7803(c)(4)(A)(iv) Context, for additional information.

    Note:

    When seeking Counsel advice, let Counsel know in writing and orally that you are not disclosing taxpayer-provided information to the IRS, and that Counsel should refrain from disclosing to any other function within the IRS any information provided by the taxpayer (or representative), including the identity of the taxpayer seeking TAS’s assistance. Be sure to remind Counsel of the requirement of keeping the taxpayer’s information confidential. See IRC § 7803(c)(4)(A)(iv). If a TAS employee learns that Counsel has not adhered to the requirement of keeping the taxpayer’s information confidential, the TAS employee should immediately report the disclosure to the Counsel to the NTA.

  2. IRC § 7803(c)(4)(A)(iv) does not authorize an LTA to protect information when the IRS is required to produce information in connection with litigation. These requests could arise in a variety of contexts, including civil tax litigation in which the Department of Justice (DOJ) represents the government, or criminal litigation in which the United States Attorney's Office represents the government. LTAs must disclose the pertinent information to the appropriate government attorney handling the case after obtaining advice from the Counsel to the NTA. See IRM 13.1.5.5 (5) for more information. Before turning over any information in a litigation matter, TAS employees should ask for a written statement (E-mail is acceptable) from the government attorney handling the litigation, detailing the name of the case, docket number, court, and the information being sought from TAS. Provide this written statement to the Counsel to the NTA.

    Note:

    Criminal Investigation (CI) may ask for information on behalf of DOJ, in which case the confidentiality procedures do not apply. If CI requests information in connection with an investigation that has not yet been referred to DOJ, the nonstandard disclosure procedures in IRM 13.1.5.10 apply. Also see the second example in IRM 13.1.5.8.3.3.

  3. When litigation is initiated or is reasonably anticipated, the Office of Chief Counsel may issue a "litigation hold" notice via E-mail to any IRS employee who may possess information relevant or potentially relevant to the litigation. A TAS employee who receives a litigation hold notice must ensure that all documents and electronically stored information (ESI) that may be relevant or potentially relevant to the litigation are collected and preserved (even if that means retaining them beyond the normal record retention period). Upon receipt of a litigation hold notice, a TAS employee should inform his or her manager, and then respond to the Chief Counsel attorney within seven business days. The response must indicate receipt of the notice, and an understanding that all relevant or potentially relevant documents must be preserved. If the TAS employee had no involvement with the subject of the litigation hold notice, the TAS employee must inform the Chief Counsel attorney of the lack of involvement in the matter. TAS employees do not need to provide the documents or ESI upon receipt of the litigation hold notice; as the litigation proceeds, the Chief Counsel attorney will contact the affected TAS employees if sending the documents or ESI becomes necessary. The CA and the LTA should not use the nonstandard disclosure procedures when responding to a litigation hold notice, or when providing the documents or ESI. Any questions about the litigation hold notice should be directed to the Chief Counsel attorney who issued it or to the Counsel to the NTA. Before providing any documents and ESI in response to the litigation hold, contact the Counsel to the NTA for advice.

  4. The IRS may ask TAS for taxpayer-provided information in connection with a personnel action or proceeding (e.g., disciplinary/adverse actions, suitability determinations, and other personnel decisions). IRC § 6103(l)(4)(B) authorizes the disclosure of returns and return information to employees of the Department of the Treasury for use in any personnel action or proceeding (or in preparation for a personnel action or proceeding) if the disclosure is necessary to advance or protect the interests of the United States. Typically, an attorney from the General Legal Services (GLS) division of the Office of Chief Counsel will be representing the interests of the United States. The CA and the LTA should not use the nonstandard disclosure procedures for these types of requests; the LTA must disclose the pertinent information to the GLS attorney handling the action or proceeding after obtaining advice from the Counsel to the NTA.

  5. Occasionally, TAS employees may receive a request for testimony in a litigation matter. Such requests may come from the taxpayer, DOJ, or the United States Attorney’s Office. These requests are not subject to the confidentiality provision in IRC § 7803(c)(4)(A)(iv). The CA and the LTA should not use the nonstandard disclosure procedures for these types of requests. Instead, the LTA must obtain advice from the Counsel to the NTA whenever he or she receives a request for a TAS employee’s testimony. See IRM 13.1.10.2.6, Requests for TAS Employees to Testify or Produce IRS Records or Information.

    1. If the TAS employee’s testimony is necessary, a testimony authorization may be required, depending on who requested the testimony (government, taxpayer, or third party), whether the government is a party to the case, and whether the testimony relates to “IRS matters,” “non-IRS matters,” and “IRS congressional matters.” See CCDM 34.9.1, Disclosure, Testimony, and the Production of Documents, and IRM Exhibit 1.2.2-2. Local SB/SE Counsel may need to prepare the testimony authorization in accordance with IRM 11.3.35, Requests and Demands for Testimony and Production of Documents. A testimony authorization is always required if a person other than the government (i.e., taxpayer or third party) has subpoenaed the employee to testify, regardless whether the testimony relates to an IRS matter, a non-IRS matter, or an IRS congressional matter.

    2. It may not be necessary for a TAS employee to testify if the information sought is available from other sources. The subpoena can be quashed or withdrawn, and TAS can work with the local Disclosure Office to provide the information. Discuss the feasibility of this option with the Counsel to the NTA.

    3. When a TAS employee’s testimony is necessary in a criminal case, the employee’s manager may receive a “Henthorn” request from the Special Agent in Charge. See United States v. Henthorn, 931 F.2d 29 (9th Cir. 1991). The Special Agent in Charge may request information contained in the TAS employee’s personnel file relating to the employee’s credibility, or other exculpatory or impeachment material. See IRM 9.6.3.7.1.1, Henthorn Requests, for additional information.

Handling a Nonstandard Disclosure Case

  1. If disclosure is required to prevent harm to health or safety, the CA should immediately follow disclosure procedures provided in IRM 10.2.8.2 , Incident Report, and IRM 21.1.3.10, Safety and Security Overview.

  2. If disclosure is proposed to address a systemic issue or to address a specific case in which a Systemic Advocacy employee is assisting a CA, as described in IRM 13.1.5.8.3.2, the proposal should be elevated to the NTA in the following manner. Systemic Advocacy personnel complete a Systemic Advocacy Confidentiality Questionnaire and a proposed NTA Confidentiality Determination. See IRM 13.1.5.1.7 for a link to an electronic fill-in version of both forms. Seek input from the TAS Attorney-Advisor handling confidentiality matters, who will consult with the Counsel to the NTA. The TAS Attorney-Advisor will then send both documents to the NTA, with a copy to the Executive Director of Systemic Advocacy (EDSA). The NTA (or designee) will make the final disclosure decision and revise the proposed NTA Confidentiality Determination accordingly. The NTA (or designee) will confirm the decision by returning signed copies of the NTA Confidentiality Determination.

  3. In all other cases, the CA must complete a CA Confidentiality Questionnaire and forward the Questionnaire to the LTA. See IRM 13.1.5.1.7 for a link to an electronic fill-in version of the CA Questionnaire.

  4. Upon receipt of a Case Advocate Confidentiality Questionnaire, the LTA reviews the CA’s recommendation, completes the Local Taxpayer Advocate Confidentiality Questionnaire (see below), and then forwards his or her recommendation to the DEDCA along with the Confidentiality Questionnaire Routing Slip (see below) and a proposed NTA Confidentiality Determination (see below). See IRM 13.1.5.1.7 for a link to electronic fill-in versions of the CA Questionnaire, LTA Questionnaire, NTA Confidentiality Determination, and the Confidentiality Questionnaire Routing Slip.

  5. The DEDCA ensures the LTA’s determination is fully developed in accordance with TAS’s confidentiality procedures. The DEDCA then forwards the LTA’s forms and recommendation to the NTA’s Attorney-Advisor handling confidentiality matters.

    Note:

    The NTA Attorney-Advisor for Confidentiality may change periodically. You can locate the current assigned Attorney-Advisor on the TAS intranet at the http://tas.web.irs.gov/fpdl/templates/7668.aspx or contact the Supervisory Attorney Advisor for current contact information.

  6. The NTA's Attorney-Advisor will consult with Counsel to the NTA and then send a recommendation to the NTA.

  7. The NTA (or designee) will make the final disclosure decision and revise the proposed NTA Confidentiality Determination accordingly. The NTA (or designee) will confirm the decision by sending signed copies of the NTA Confidentiality Determination to the DEDCA and LTA who will ensure the determination is made part of the case file.

  8. The nonstandard disclosure questionnaire processing timeframes (except for the Systemic Advocacy Confidentiality Questionnaire) are as follows.

    Action Normal Process Timeframes
    CA prepares Case Advocate Confidentiality Questionnaire and submits to the LTA with the case file. Within two business days.
    LTA prepares Local Taxpayer Advocate Confidentiality Questionnaire and forwards to the DEDCA. Within two business days.
    DEDCA reviews and makes recommendation to the NTA Attorney-Advisor. Within two business days.
    NTA Attorney-Advisor consults with Counsel to the NTA and then makes a recommendation to the NTA. Within five business days.
    The NTA makes the disclosure decision, forwards it to the DEDCA and the LTA, and provides copies to the DNTA, EDCA, NTA Attorney-Advisor, and Counsel to the NTA. Within five business days.
    Total processing time Sixteen business days.

Confidentiality and Disclosure in the Identity Theft Context

  1. Identity theft occurs when someone uses an individual's personal information, such as name, Social Security number (SSN), or other identifying information without permission to commit fraud or other crimes. For general information about identity theft and the documentation necessary to establish identity theft occurred, see IRM 25.23.2, Identity Protection and Victim Assistance - General Case Processing. Questions involving disclosure and identity theft can often be complex; LTAs and DEDCAs should consult with the NTA’s Attorney-Advisor handling confidentiality matters if they have questions.

  2. TAS employees may encounter the following scenarios:

    1. Scenario A: Taxpayer X is an undocumented worker, not eligible for an SSN. Taxpayer X uses another taxpayer's SSN to obtain employment.

    2. Scenario B: Taxpayer Y files an individual income tax return using another taxpayer's name and SSN. The return is fictitious and Taxpayer Y is filing solely to claim a fraudulent refund.

    3. Scenario C: Taxpayer Z files an individual income tax return for refund using his own name and SSN. Later, Taxpayer Z files a second tax return for the same year, and claims an identity thief filed the first tax return in order to receive a second refund.

  3. In scenario A, as long as Taxpayer X filed a return using an individual taxpayer identification number (ITIN) and is paying taxes on the wages he earned, Taxpayer X has not violated the internal revenue laws. Thus, the LTA has no obligation to report anything under IRC § 7214(a)(8). Even though using someone else’s SSN to obtain employment is a non-tax felony, IRC §6103(i)(3)(A) doesn’t support disclosure to another federal agency (e.g., Immigration and Customs Enforcement) for non-tax law enforcement purposes in this situation.

  4. In contrast, if Taxpayer X is attempting to evade tax, or willfully fails to file a return or pay tax on wages earned while using another taxpayer's SSN, and refuses to work with TAS to bring the violation to the IRS's attention per IRM 13.1.5.8.3.3, Taxpayer X may be violating laws under the Internal Revenue Code (e.g., IRC §§ 7201, 7203). In that situation, follow the nonstandard disclosure procedures in IRM 13.1.5.10 to report the potential violation to the NTA for appropriate action, consistent with IRC § 7214(a)(8). See IRM 13.1.5.3 for additional information.

  5. In scenario B, the fictitious return filed by Taxpayer Y to obtain a fraudulent refund is not a valid return. The use of another taxpayer's identity in this fashion is a possible violation of the internal revenue laws and a possible felony under 18 U.S.C. § 1028(a)(7) (use, without lawful authority, of a means of identification of another person with the intent to commit an activity that violates federal law). Any information TAS has about the true identity of Taxpayer Y and about the inappropriate use of another taxpayer's name and SSN should be reported as both a potential fraud referral to Criminal Investigation (to comply with IRC § 7214), and a referral to Disclosure (to comply with 18 U.S.C. § 4). Per IRM 11.3.28.6, IRM 11.3.34, and Delegation Order 11-2 Rev. 3 (found in IRM 1.2.2.11.2), only Disclosure has the delegated authority to disclose information to non-IRS federal law enforcement officials. See IRM 13.1.5.3 for additional information. If TAS gained any of the information from communication with Taxpayer Y or his representative, the referrals must be made using the nonstandard disclosure procedures in IRM 13.1.5.10.

  6. In scenario C, Taxpayer Z seeks relief through TAS by claiming to be a victim of identity theft, even though the taxpayer filed both tax returns under his own SSN. The second return is not an attempt to correct or amend the original return. If the CA discovers the taxpayer fraudulently filed the second tax return in an attempt to receive a second refund, and the taxpayer refuses to work with TAS to bring the violation to the IRS's attention per IRM 13.1.5.8.3.3, the CA follows the nonstandard disclosure procedures in IRM 13.1.5.10 to report the suspected fraud to the NTA for appropriate action, consistent with IRC § 7214(a)(8). See IRM 13.1.5.3 for additional information.

Disclosure Regarding Practitioner or Preparer Misconduct

  1. Unfortunately, there are some unscrupulous individuals representing taxpayers. In certain situations, a referral to the Office of Professional Responsibility (OPR) or the Return Preparer Office (RPO) may be appropriate. See IRM 13.1.23.5, Complaints from Taxpayers About Representatives, IRM 25.24, Return Preparer Misconduct Program, and IRM 1.25.4.2, Referrals to the Office of Professional Responsibility, for additional information.

    Example:

    A taxpayer seeks TAS assistance because she has not received her refund. The taxpayer informs the CA an individual prepared the taxpayer's return and filed it electronically, requesting direct deposit of the refund. The taxpayer shows the CA the printed copy of the return the preparer provided. Through account research, the CA learns a larger refund was direct deposited, but discovers the bank account number, routing information, and itemized deductions on the return filed do not match the copy of the return given to the taxpayer. It appears the preparer changed the account number, routing information, and itemized deductions on the filed return to divert a higher refund into a bank account controlled by the preparer. If the taxpayer consents to disclosure to the IRS of Forms 14157 and 14157-A completed by the taxpayer, then TAS makes a standard disclosure to advocate for the taxpayer, and per IRM 25.24.2.2.4, Return Preparer Office Notification Requirements, the IRS forwards the complaint to RPO. If the taxpayer does not consent to the disclosure, and TAS possesses information about the preparer’s violation of the rules of practice, TAS employees follow the nonstandard disclosure procedures in IRM 13.1.5.10 to appropriately refer the matter to OPR or RPO in accordance with IRM 13.1.5.3 (5).

  2. Form 8484, Report of Suspected Practitioner Misconduct, is used to make referrals to the OPR. Form 14157, Return Preparer Complaint, is used to make referrals to RPO.