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Disclosure Litigation Bulletins

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July 2000
Privacy Act Section (e)(2) � Collecting Information from Subject
With the publication of this issue of the Disclosure Litigation Bulletin, we have a new organizational name! Effective with the July 2, 2000 "stand up" of the National Office of Chief Counsel, we are the office of the Assistant Chief Counsel (Disclosure & Privacy Law). Although our name has changed, our subject matter jurisdiction remains essentially the same.
March 2000
New Legislation Enacted Making Advance Pricing Agreements (APAs) Confidential
In response to a FOIA/I.R.C. § 6110 lawsuit filed by the Bureau of National Affairs seeking access to APAs, and the Service's concession during the course of the litigation that APAs are written determinations under I.R.C. § 6110, and therefore subject to public inspection, legislation was enacted explicitly including APAs in the definition of return information under I.R.C. § 6103. This new legislation, § 521 of Title V of the §Ticket to Work and Work Incentives Improvement Act of 1999, Pub. L. No. 106-170, 113 Stat. 1860, (effective date December 17, 1999), thus excludes APAs from disclosure under I.R.C. § 6110, and thereby ensures that APAs will remain confidential.
Dec. 1999
Procedures for Disclosing Tax Information to Satisfy Brady V. Maryland
In all criminal cases the Government is under a constitutional obligation to disclose, upon a defendant's request, evidence material either to guilt or punishment (i.e., exculpatory evidence), Brady v. Maryland, 373 U.S. 83 (1963). This includes evidence which may be used to impeach a Government witness, Giglio v. United States, 405 U.S. 105, 154 (1972). An issue arises in a criminal tax matter where there is tension between the constitutional principle embodied in Brady and I.R.C. § 6103, which provides for the confidentiality of returns and return information.
Sept. 1999
Release of Documents Pursuant to RRA
On July 22, 1999, pursuant to the transition rules of IRS Restructuring and Reform Act (RRA) of 1998, section 3509(d)(2)(A), the Service released Litigation Guideline Memoranda, Tax Litigation Bulletins, Criminal Tax Bulletins and General Litigation Bulletins issued between January 1, 1986 and the effective date of section 3509 (October 22, 1998). While most of the documents were released in full, certain information was redacted from some of the documents pursuant to various exemptions authorized under I.R.C. § 6110 and the Freedom of Information Act. The RRA amended I.R.C. § 6110 to provide for a new category of §written determinations§ entitled Chief Counsel Advice - documents written by national office components of the Office of Chief Counsel and issued to field and service center employees of the Service or to regional and district counsel employees that convey a legal interpretation or Counsel position or policy with respect to a revenue provision. The RRA specifically included the various documents listed above within the new category of Chief Counsel Advice and provided for a transition period during which the Service would release certain prior Chief Counsel Advice memoranda dating back to 1986. The next release date under the transition rules is January 22, 2000, when the Service is scheduled to release Field Service Advice and technical assistance to the field issued between January 1, 1994 and October 22, 1998.
June 1999
Disclosure of Tax Data to State & Local Personnel Assisting the Justice Department in a Grand Jury Investigation
Disclosure Litigation Bulletin 94-2 addressed the issue of disclosures of tax information to state and local personnel assisting the attorney for the Government in a Federal grand jury investigation. It was noted that I.R.C. § 6103 limits disclosures of tax data in both tax and nontax criminal matters to Federal officers and employees personally and directly engaged in the investigation. Thus, disclosures of tax information under I.R.C. § 6103(h)(2) and (i) to state and local personnel assisting the attorney for the Government in a Federal grand jury investigation are prohibited. However, disclosure of tax information is permitted if the state and local personnel are made Federal employees.
March 1999
Disclosures in Connection with Congressional Inquiries
I.R.C. § 6103(c) applies to disclosures of returns and return information to a designee of the taxpayer. Treasury Regulation § 301.6103(c)-1(b) addresses requests made by taxpayers to designees for information or assistance relating to the taxpayer's return or a transaction or other contact between the taxpayer and the Service. This could include requests by taxpayers to their congressional representative for information from or assistance with the Service. For the Service to disclose tax information to such a designee in these circumstances, the taxpayer's request for information or assistance must be in the form of a letter or other written document signed and dated by the taxpayer.
Jan. 1999
Testimony Authorizations Inapplicability of 31 C.F.R. § 1.11 to the IRS
31 C.F.R. § 1.11 governs the testimony and/or production of records in a court or other proceeding by employees of certain Treasury Department offices defined in 31 C.F.R. § 1.1(d)(1). 31 C.F.R. § 1.11, however, does not apply to the Internal Revenue Service.
Sept. 1998
Chief Counsel Advice Memoranda
The IRS Restructuring and Reform Act of 1998 (P.L.105-206) (§RRA) was signed into law on July 22,1998. Section 3509 of the Act provides for the public release of Chief Counsel Advice memoranda (CCAs), a new §umbrella§ term which encompasses Field Service Advice memoranda (FSAs), technical assistance rendered to the field, Litigation Guideline Memoranda (LGMs), Service Center Advice (SCAs), and any other written advice prepared by any National Office component of the Office of Chief Counsel and issued to Counsel or IRS field office employees that conveys a legal interpretation or Counsel position or policy with respect to a revenue provision.
June 1998
TBOR 2 Disclosure Provisions Update
I.R.C. § 6103(e)(7), in conjunction with section 6103(e)(1)(B), permits the disclosure of return information relating to a joint return to either spouse. I.R.C. § 6103(e)(8) permits a spouse who filed a joint return in a prior year, and who is now divorced or separated, to obtain certain specified items of information concerning collection activity taken against the former spouse related to the joint return, i.e., whether the Service has attempted to collect the deficiency from the other individual, the general nature of the collection activities, and the amount collected.
March 1998
FOIA Requests by Taxpayers for Field Service Advice (FSAs) Pertaining to Them
In the wake of the finality of the D.C. Circuit's opinion in the FSA lawsuit, Tax Analysts v. IRS, 117 F.3d 607 (D.C. Cir. 1997), taxpayers and their representatives have begun making FOIA requests for FSAs issued by the National Office in connection with their own cases. The following procedure has been put into place for processing such requests.
Dec. 1997
UNAX Awareness
The Taxpayer Browsing Protection Act, which was signed into law in August 1997, established criminal penalties for the willful unauthorized inspection of tax information. The Service is conducting agency-wide awareness briefings, including written materials, a video, and group meetings, to better focus attention on understanding and preventing the unauthorized access and inspection of tax information (UNAX). The Office of Chief Counsel will be supporting the Service's UNAX program by participating in this awareness effort.
Sept. 1997
Recent Disclosure Legislation: Balanced Budget Amendment Act of 1997, Taxpayer Relief Act of 1997, & Taxpayer Browsing Protection Act of 1997
President Clinton signed into law the three above referenced bills on August 5, 1997. The following is a brief summary of the various amendments or changes to I.R.C. sections 6103, 7213, 7213A and 7431 effected by these enactments, all of which were effective upon enactment except as specifically indicated below.
July 1997
Proposed Legislation Regarding Unauthorized Inspection of Tax Information
On June 26, 1997, the House of Representatives passed H.R. 2014, the Taxpayer Relief Act of 1997. On June 27, 1997, the Senate passed its version of H.R. 2014, entitled the Revenue Reconciliation Act of 1997. Section 1286 of the House bill and section 1085 of the Senate bill contain virtually identical versions of proposed I.R.C. § 7213A, which would create a misdemeanor for unauthorized inspection of tax returns and return information. If enacted, the provision will impose a penalty for the willful inspection, except as authorized by the Code, of any tax return or return information by any federal employee or Service contractor.
April 1997
Procedures for GAO Audits
The General Accounting Office (GAO) is authorized to perform audits of the IRS and its operations. The audits are one of two kinds, either an audit to be performed without access to tax information (nontax review) or one in which GAO is entitled to obtain tax information (tax review). Since these audits may result in a review of Chief Counsel records or interviews with Counsel employees, you should be aware of procedures to be followed if contacted by representatives from GAO.
Jan. 1997
Electronic Freedom of Information Act Amendments of 1996
On October 2, 1996, President Clinton signed the "Electronic Freedom of Information Act Amendments of 1996," P.L. No. 194-231, 110 Stat. 2422, which addresses electronic records issues and other procedural aspects of Freedom of Information Act (FOIA) administration.


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