Purpose: These procedures provide instructions for IRS officers and employees (including former officers and employees), as well as IRS contractors (including former contractors), when responding to requests and demands for testimony and production of IRS records or information in judicial or administrative proceedings.

Audience: These procedures apply to all IRS employees, and contractors in connection with official duties related to an audit, collection activity, or civil or criminal tax investigation, when responding to requests and demands for testimony and production of IRS records or information in judicial or administrative proceedings.

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

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

In Delegation Order 11-2 (found in IRM 1.2.49.3) at Exhibit 1.2.49-2, there are tables for testimony authorization that specify the judicial or administrative proceedings that do or do not require testimony authorizations. Each table gives examples of the types of proceedings and lists the responsible officials for both preparing and either authorizing or denying the testimony.

In addition, Delegation Order 11-2 includes Table 8 that provides a list of the privileges to withhold documents or testimony. This table specifies who has the authority to either assert or waive these privileges.

In general, use the authorities in the tables of Delegation Order 11-2 to determine whether to permit officers or employees of the IRS working in the same geographical area as the authorizing official indicated in the appropriate table to testify or produce IRS information when a request or demand for such records or information is received.

Table 1 of Delegation Order 11-2 covers authorization for Tax Court proceedings.

IRS officials charged with preparing or authorizing testimony approvals or denials should coordinate with appropriate counsel before acting. In some cases, this will involve coordination through HQ Chief Counsel.

The following requests or demands for testimony or production of IRS information must be authorized by the Deputy Associate Director, East or West.

The following requests or demands for testimony or production of IRS information must be authorized by the Commissioner, the appropriate Deputy Commissioner, or other delegated official in accordance with Delegation Order 11-2 (see IRM 1.2.49.3):

These authorizations must also be cleared through the Associate Chief Counsel (Procedure and Administration).

An IRS matter is defined in IRM 11.3.35.1.4(9).

"IRS matter" is not defined in IRC §6103. However, these matters include, but are not limited to:

All subpoenas received by IRS officers and employees, as well as contractors, related to an IRS matter must be forwarded immediately to the employee's local Disclosure Office, who will refer it to the appropriate Chief Counsel or General Legal Services (GLS) area office.

No authorization is needed when testimony or production of records is requested by Government counsel representing the IRS in an IRS matter. See IRM Exhibit 1.2.49-2,Delegation Order 11-2 Authorization Tables 1-8, for additional information.

Where testimony requesting IRS information is sought in an IRS matter by a party to the litigation other than the government (i.e., the defense in a criminal tax case, a petitioner in a U.S. Tax Court case, the plaintiff in a Federal Tort Claims Act case, or the plaintiff in a refund litigation case), an authorization or denial is required. The Office of Chief Counsel is responsible for preparing the proposed authorization and submitting it for approval. See IRM Exhibit 1.2.49-2,Delegation Order 11-2 Authorization Tables 1-8, for additional information.

A testimony authorization is no longer required to respond solely in writing, under the direction of the attorney or other government representative, to requests and demands in IRS matters, including, but not limited to, admissions, document production, and written interrogatories to parties.

Table 1 of Delegation Order 11-2 (see IRM Exhibit 1.2.49-2) delegates to Chief Counsel the authority to determine whether to permit testimony and production of records in response to a Tax Court subpoena.

Chief Counsel has re-delegated authority to determine whether to permit testimony and production of records in response to a Tax Court subpoena to Area Counsel, except for Headquarters matters, where the Associate Chief Counsel has re-delegated authority.

No authorization is needed if the IRS officer, employee, or contractor is requested to testify or produce documents in such a proceeding on behalf of the Commissioner.

No testimony authorization is needed to respond to a request or demand issued to a former IRS officer, employee, or contractor for expert opinion or testimony if the testimony sought involves general knowledge (such as information contained in published procedures of the IRS or the IRS Office of Chief Counsel) gained while the former IRS officer, employee, or contractor was employed or under contract with the IRS.

No testimony authorization is needed if a more specific procedure established by the Commissioner governs the disclosure of IRS information. These procedures include, but are not limited to:

Field Disclosure employees are responsible for preparing any necessary authorizations or non-authorizations for signature by GLDS Deputy Associate Directors in all non-IRS matters, except for those involving BSA information outlined in Delegation Order 11-2, Table 6 (see IRM Exhibit 1.2.49-2).

The Disclosure caseworker is responsible for preparing authorizations for the signature of the Associate Director, Disclosure or Director, GLDS, and for the Commissioner and the appropriate Deputy Commissioner. See Delegation Order 11-2, found in IRM Exhibit 1.2.49-2 .

Prior to submission to the appropriate official for signature, all authorizations must be reviewed by Chief Counsel.

The Law Enforcement Assistance Program (LEAP) helps state and local law enforcement lawfully obtain tax return data vital to their local efforts in investigating and prosecuting specific cases of identity theft, under an IRC §6103(c) consent, processed by Criminal Investigation Division. Disclosure caseworkers may receive a subpoena for testimony based on information disclosed under this program.

Disclosure employees will process the Testimony Authorization request. In addition to normal procedures for processing these subpoenas, Disclosure caseworkers must also contact the CI ID Theft Coordinator for the specified state to:

Prepare the Testimony Authorization Memo using the approved pattern letter:

All employees are required to immediately forward all requests or demands for testimony or production of IRS information to the Disclosure Office along with pertinent facts and background. These requests or demands are normally in the form of a subpoena.

Disclosure personnel may act as liaison to Office of Chief Counsel on requests or demands in United States Tax Court cases, requests or demands in IRS congressional matters, and requests or demands in personnel, labor relations, government contract, Bivens-type actions, and Federal Tort Claims Act (FTCA) matters, or matters related to informant claims and requests. Once the request or demand is forwarded to IRS Counsel, the Counsel attorney assigned to the case will work with the subpoenaed employee directly.

Suits involving the federal government will contain references in their titles to the United States, the Department of the Treasury, the Internal Revenue Service, or other federal agency as either the plaintiff or the defendant. Disclosure personnel will immediately forward the request or demand to the Office of Chief Counsel.

In IRS related matters , Disclosure personnel will immediately, upon receipt, forward a subpoena, court order or other request or demand from a party other than the government to the appropriate Chief Counsel office.

When forwarding the request or demand to the appropriate Area Counsel for processing, provide the Code, Authority and Procedures (CAP) justification applicable to the referral.

While the preparation of a testimony authorization in response to a subpoena in an IRS matter is the responsibility of IRS Chief Counsel, Disclosure personnel may, depending on local policy, assist in briefing the employee on the disclosure ramifications of the testimony.

Employees whose testimony is requested/subpoenaed and Disclosure personnel are responsible for gathering and reporting the necessary facts on which a proper authorization may be based.

Gathering the necessary facts will include contacting all IRS functions that are or may be affected by the requested testimony to determine if there are open or pending cases. If there are such matters, Disclosure personnel should secure a clearance or written recommendation from the affected functions as to whether disclosure will seriously impair tax administration, and if so, how.

Pertinent information must be obtained from any IRS functions that may be affected by the requested testimony. Exhibit 11.3.35-1 contains an example of the type of information needed. This exhibit template may be used or any other approved written format containing substantially the same information as the exhibit template.

Jurisdiction over documents and employees for purposes of authorizing an expedite request for testimony and production of records will continue to be vested in the approving official of the office where the respective employees are located.

Disclosure personnel, with the assistance of functional employees in the affected offices, may be responsible for coordinating the following actions in connection with the processing of testimony cases:

Disclosure personnel may seek technical assistance from the Disclosure Policy and Program Operations (PPO) staff, when necessary.

Disclosure personnel will document all actions taken in the electronic inventory management system throughout the testimony and production of records process.

The closed case files will include the following:

All subpoenas or other court orders or demands for confidential informant or Whistleblower Office (WO) information should be coordinated with the Office of Chief Counsel Attorney for the Whistleblower Office before any actions are taken or response is made.

Requests and demands for testimony and/or production of Privacy Act protected records require proper authorization. Only release the records if there is a signed Privacy Act consent or a listed court order routine use in the Privacy Act System of Records Notice.

Requests and demands for testimony and/or production of personnel and payroll records in private litigation or administrative proceedings will be coordinated by the assigned Disclosure caseworker with the Office of Personnel Management (OPM), National Archives and Records Administration (NARA), and/or Memphis Payroll Center, as necessary.

The assigned Disclosure caseworker will ensure that the information is received in sufficient time to comply with the date and periods specified in the request, subpoena, etc.

OPM regulations for Personnel records are outlined in Title 5 Code of Federal Regulations (CFR) §297.402. IRS adopted the OPM regulations for all IRS personnel records as well as all other IRS records subject to the Privacy Act.

The OPM regulations requires that subpoenas for personnel records of Federal civilian employees must be signed by a judge or magistrate of a court of competent jurisdiction over the case being heard by the court in order to meet the court order routine use exception in the Privacy Act (5 USC §552a(b)(ii)).

Valid subpoenas for documents under OPM's jurisdiction (Official Personnel Files (OPFs) of retired, deceased, or separated employees, without the written authorization from the subject employee attached, (but which meet the Privacy Act routine use court order exception,) are handled by the OPM Office of General Counsel. After calling the OPM Counsel to advise the subpoena is being referred to them, caseworkers should forward it to the following address:

Subpoenas for documents under OPM's jurisdiction of retired, deceased, or separated employees, with a written authorization from the subject employee attached, should be forwarded to the following address:

Valid subpoenas for personnel records of active Federal civilian employees are handled by NARA. After advising the requester of the referral, caseworkers should forward the subpoena to the following address:

When documents are disclosed in response to such a court order, they are accounted for on Form 5482 as a Privacy Act (b)(11) disclosure. See IRM 11.3.19,Privacy Act Accounting for Disclosures.

Before rejecting a subpoena for IRS employee time and attendance, payroll or personnel records signed by an attorney or clerk of the court, Disclosure personnel should contact the requester who caused the subpoena to be issued and advise them of the OPM and Privacy Act requirements. (See (4) and (5) above).

IRS employees have the capability of securing their own time and attendance records through TAPS/SETR. If the employee does not have access to SETR, the employee's manager will be able to help them.

IRS employees have the capability of securing their own Earnings and Leave Statements and Forms W-2 from the Employee Personal Page of the National Finance Center (NFC) web site.

If the subpoena is for records of a former IRS employee, and there is no valid Privacy Act consent, Disclosure personnel should offer the requester an option of withdrawing the subpoena and/or obtaining written permission from the subject of the time and attendance, payroll or personnel record in order to meet the confidentiality requirements of the Privacy Act.

Caseworkers should advise the third party requester in the closing letter to send their requests for personnel records with authorization from the former employee to the address listed in IRM 11.3.35.8(7). The caseworker must contact the requester to advise them of the procedure and ask the requester to withdraw the subpoena. If the requester will not withdraw the subpoena the caseworker should contact Counsel to determine if the subpoena needs to be quashed.

Caseworkers should advise the third party requester in the closing letter to send their requests for time and attendance or payroll records with authorization from the employee to the following address:

No accounting is required for the disclosure of time and attendance, payroll or personnel records if authorized in writing by the employee or former employee.

Disclosure personnel should be aware that there might be a routine use (other than subpoenas) that might apply.

The authority to disclose personnel records pursuant to the written permission of the employee lies with OPM and NARA. Disclosure personnel should remain available to give advice concerning disclosure of personnel records, if requested. IRM 11.3.13, Freedom of Information Act, and IRM 11.3.20, Personnel Records, both contain information relating to certain personnel information that is available to the public.

Disclosure personnel should ensure that the accounting and notification requirements regarding disclosure of personnel records made under compulsory legal process are adhered to as described in IRM 11.3.37, Recordkeeping and Accounting for Disclosures.

IRS employees who are involved in an active Grand Jury civil or criminal tax investigation, under the direction and control of the US Attorney's Office, have access to and may already have knowledge of the information and documents obtained by the Grand Jury. Disclosure of this tax Grand Jury information or documents in the court proceeding does not require testimony authorization pursuant to Treasury Regulation § 301.9000-3. Rather, authorization in these instances comes from the Department of Justice.

Disclosure personnel should direct employees receiving subpoenas regarding testimony in a Federal tax grand jury investigation to the Department of Justice official (usually the Assistant U.S. Attorney assigned to the grand jury investigation) to obtain any necessary direction.

Disclosure personnel should be aware, that testimony regarding tax information obtained during the administrative stage of an investigation (prior to the initiation of the grand jury) may require testimony authorization. Types of information could include examination, collection, criminal investigation or other compliance files. See Treasury Regulation §301.9000-1(a).

If an employee receives a subpoena from a party to the grand jury investigation other than the Department of Justice requiring testimony about tax information provided pursuant to IRC §6103(h)(2), a testimony authorization is required pursuant to Treasury Regulation §301.9000-3. However, see Treasury Regulation §301.9000-3(b)(2) for exceptions related to admissions, document production, and written interrogatories.

If a defendant's subpoena covers any IRS information as defined in IRM 11.3.35.1.4(1), and Treasury Regulation §301.9000-3 requires authorization, employees should coordinate with the Assistant U.S. Attorney or other appropriate Department of Justice (DOJ) official on the decision whether or not to permit testimony.

Even if there is no requirement pursuant to Treasury Regulation §301.9000-3 for a written testimony authorization, an employee may request and receive written approval from the Disclosure Office to appear and give testimony under the guidance of the Assistant U.S. Attorney or other appropriate DOJ official.

A request or demand for IRS information for use in a non-IRS matter shall be accompanied by a written statement made by or on behalf of the party seeking the testimony or disclosure of IRS information, setting forth:

Permissible waiver of statement - The requirement of a written statement may be waived by the authorizing official for good cause.

Failure to provide the written statement may result in IRS's opposition to the demand. See Treasury Regulation §301.9000-4(f).

Treasury Regulations §§301.9000-1 through 301.9000-7 set forth the procedures under which IRS employees may disclose IRS information in response to a subpoena.

The regulations establish the Commissioner's right to determine whether the disclosure should be made and how it should be made or limited in accordance with applicable statutes.

The Disclosure Office and Chief Counsel are responsible for providing the authorizing official (see Delegation Order 11-2, Testimony Tables 1 through 8 (see also IRM 1.2.49)) with the pertinent facts necessary to make such determination.

In submitting recommendations for and preparing testimony and production authorizations, disclosure personnel must take into account:

Applicability of the above factors is usually evident from the information gathered in accordance with IRM 11.3.35.6 and IRM 11.3.35.8, and will serve as a basis for including specific limiting language in the proposed testimony and production authorization.

Any applicable privilege or protection under law may be asserted in response to a request or demand for testimony or disclosure of IRS information, including, but not limited to, the following:

The authorization prepared for the appropriate approving official should, to the extent applicable, specifically indicate:

It is imperative that the authorization be approved and the employee notified prior to the time the requested/subpoenaed employee is scheduled to appear in the judicial or administrative proceeding.

There is a general rule of cooperation among Federal agencies. Therefore, when the government is a party to the litigation, testimony is usually provided. Depending upon local policy, this cooperation may also extend to state or local governments.

Normally, IRS resources should not be expended in private litigation. The Disclosure Office should offer alternate sources or methods of obtaining the requested data (e.g., routine uses of Privacy Act System of Records, Form 4506, Request for Copy of Tax Return, Form 4506-T, Request for Transcript of Tax Return, IRC §6103(c), or IRC §6103(e)). If any person makes a request or demand for IRS records or information in connection with a non-IRS matter, authorizing officials must take into account the following additional factors when responding to the request or demand:

Requests for IRS expert testimony in non-tax matters will normally be denied. However, if the IRS has an interest in the issue and the outcome of the litigation, IRS employees may be authorized to testify. The Disclosure Manager will coordinate determinations of IRS interest with Chief Counsel and the involved function(s).

However, when a determination is made that it is not in the IRS's interest to provide testimony, appropriate actions should be taken by the field Disclosure staff (request that the order be withdrawn, offer alternate information, etc.) or by Area Counsel to work through DOJ to have the subpoena quashed. Written notification should be supplied to the employee. See IRM 11.3.35.12(5).

Use the appropriate pattern memorandum for all cases in which Disclosure employees are preparing a testimony authorization.

The key to handling testimony cases is confirming their validity under Treasury Regulations §§301.9000-1 through -7, and obtaining timely and accurate information.

Disclosure personnel should speak to the attorney or requester responsible for serving the request or subpoena. This call should be used to:

To the extent possible, Disclosure personnel must attempt to avoid unnecessary appearances by IRS employees in judicial and administrative proceedings.

If there are disclosure complications, Disclosure personnel should request that the issuing party withdraw the request/subpoena. Although a written statement of withdrawal is desirable, an oral statement by the requester to the effect that the IRS need not appear in response to his/her request/subpoena is generally sufficient to close out the case. A note to this effect should be included in the electronic inventory management system case history notes. Disclosure personnel should send a letter confirming withdrawal to the requester.

If the authorization to testify is denied, and the requester refuses to withdraw the request/subpoena, the authorizing official must give the employee written confirmation of the denial. A copy may be provided to the court when he/she respectfully declines to testify for lack of authorization as required by Treasury Regulation §301.9000-3.

If there is insufficient time to gather and analyze the facts, prepare a report, and obtain an authorization, Disclosure personnel should contact the requester and inform him/her to this effect (or request that Area Counsel do so). The requester should be informed that the employee would appear if he/she insists, but that the employee will explain to the court or other authority that the request/subpoena was served at the last minute and that Treasury Regulation §301.9000-3 does not permit testimony or production of IRS information without the proper authorization. When confronted with this situation, the requester may seek a postponement, withdraw the subpoena, or still require the employee to appear.

The use of certified documents is another way where appearance of an IRS employee at trial may be minimized. With managerial approval, offer the requester certified documents, if disclosure is permitted, in lieu of appearance and testimony by an employee. The certified copies of returns and return information are admissible into evidence in accordance with IRC §6103(p)(2)(C) and IRC §7514.

Certified documents are particularly useful when tax returns are desired. If time allows, Disclosure personnel should:

When information is provided pursuant to a subpoena, a note to this effect should be included in the electronic inventory management system case history notes. Disclosure personnel should explain in the response letter to the requester the basis for releasing the requested information pursuant to the subpoena.

Additionally, if a request/subpoena is served on more than one IRS employee, depending on the circumstances, the requester should be contacted to see if just one employee, or at least fewer employees, may appear.

If it is clear that an IRS employee will have to appear in court, depending on the circumstances of the case, contact the requester to see if he/she will agree to let the employee appear on a few hours' notice or at a specific time, rather than requiring appearance from the beginning of the proceeding.

Returns and taxpayer return information initially provided under an IRC §6103(i) order require a finding under IRC §6103(i)(4)(A)(i), or an order under IRC §6103(i)(4)(A)(ii) in order to be disclosed in a proceeding. This finding by the court is separate from the original Ex Parte Court Order and should be issued in writing by the judge. See IRM 11.3.28 for additional information.

Some important guidelines to note when processing a testimony request resulting from an Ex Parte Court Order are:

Unless directed otherwise in the authorization instructions, employees may not testify regarding:

An IRS employee faced with a court order to testify or produce documents prior to receiving testimony and/or production authorization should respectfully decline to testify. The employee should explain to the court that Treasury Regulation §301.9000-3 does not permit him/her to testify or produce IRS information unless authorized to testify or produce IRS information and that he/she is awaiting authorization. To the extent necessary, Disclosure or Chief Counsel personnel or Government counsel (usually an Assistant U.S. Attorney) may accompany the employee to explain the situation.

If an IRS employee is faced with a court order to testify or produce documents with respect to information that is not authorized to be disclosed by the testimony and production authorization, the employee should respectfully decline to testify or produce documents with respect to those matters. If returns and return information are involved, the employee should explain to the court that disclosure could subject him/her to civil and criminal sanctions. Disclosure or Chief Counsel personnel, or Government counsel (usually an Assistant U.S. Attorney) may accompany the employee to explain the situation to the court.

In non-tax cases, the fact that a person presents a subpoena or other request or demand indicating he/she is the attorney for a taxpayer, is not sufficient to establish that person as the authorized representative of a taxpayer for purposes of disclosing confidential tax information. IRC §6103(c) and (e) require that a taxpayer consent in writing or in open court on the record to the disclosure of his/her confidential tax information. In tax cases, disclosure may be made where the requirements of IRC §6103(h)(4) are met.

Prior to taking the stand as a government witness or a witness for the opposing party in a non-tax civil or criminal proceeding, the subpoenaed employee should apprise Government counsel of the limits of the testimony authorization. The employee may provide Government counsel, as well as the judge or magistrate and the defense, with a copy of the written advice or authorization.

Should Government counsel ignore IRS instructions and request testimony which clearly is beyond the scope of the authorization (e.g., testimony concerning third parties or confidential informants) or raise no objection when such testimony is requested by the opposing counsel, the employee should inform the court of any statutory restrictions on disclosure and of the testimony instructions issued by the IRS. The employee should be careful to not directly or indirectly disclose tax information (e.g., fact of filing) when making this explanation. If the line of questioning is pursued, the employee should request the court's permission to consult with IRS officials before responding. If the court refuses to grant permission and insists that the employee testify, the employee should respectfully decline to testify because statutory authority and/or IRS approval is lacking.

Where the legality of the disclosure is questionable, such as when non-Government counsel moves for disclosure based on a constitutional premise as in Brady v. Maryland 373 U.S. 83 (1963) (See IRM 11.3.35.14), the employee should be guided by Government counsel in providing testimony. In either situation, the IRS will support its employees in any "good faith" decision on their part about the propriety of their actions in protecting the confidentiality of IRS information.

Any IRS officer, employee, or contractor who discloses IRS information without authorization under Treasury Regulation §301-9000-3, may be subject to administrative discipline, up to and including dismissal, applicable contractual sanctions and civil or criminal penalties, including prosecution under 5 USC §552(a) or IRC §7213.

In all criminal cases, the Government is under a constitutional obligation to disclose, upon the defendant's request, evidence material either to guilt or punishment (exculpatory evidence), Brady v. Maryland, 373 U.S. 83 (1963). This includes evidence that may be used to impeach or discredit a Government witness. Giglio v. United States, 405 U.S. 150 (1972). It also encompasses Henthorn material (information about the credibility and/ or integrity of a Government employee who will be called as a witness).

The Brady rule does not however, require the Government to seek exculpatory material that is not already in its possession. The Brady decision does not require that the Government perform the defense's task of locating all exculpatory material; rather, the rule of the case is that if such material exists in the Government's files used for purposes of prosecuting the offense, the Government is prohibited from hiding such material from the defense.

If the IRS is not one of the investigating agencies in a prosecution, there are no Brady obligations and Government employees may not disclose information in response to a Brady based order. Chief Counsel must be consulted regarding Brady based orders in cases where IRS is not one of the investigating agencies.

When the IRS discloses returns and/or return information in response to a Brady based order (it can be written or oral but the sufficiency of an oral request must be coordinated with Chief Counsel), the IRS will seek a court order that limits the use of such information by the defendant to the particular proceedings. U.S. v. Moriarity, 69-1 USTC paragraph 9212 (Ed. Wisc. 1969), sets out the guidelines for this order.

In such cases, the IRS will request that the judge inspect the returns and/or return information "in camera" (a legal term that means "in private" or "in chambers" ) to determine whether disclosure to the defendant is constitutionally mandated.

Special care must be taken when the information requested relates to a confidential informant. See IRM 11.3.35.7(15).

The Jencks Act (18 USC §3500) relates only to pre-trial statements of Government witnesses in Federal criminal cases. Any such statements given to the Government relating to the subject matter of the witness' testimony must be provided to the defense.

Disclosures of returns and return information under Jencks must be in a tax proceeding as provided in IRC §6103(h)(4)(D).

Disclosure personnel must advise the requested/subpoenaed employee of the authorization and the permissible scope of testimony and production of IRS information before the employee is scheduled to appear.

The following items are examples of matters that might be addressed:

Disclosure personnel must ensure all disclosures are accounted for and all notification requirements are complied with, if necessary, before closing out the testimony file.

Use Form 5482 to meet the accounting requirements of the Privacy Act of 1974, at 5 USC §552a(c) when applicable (i.e., personnel and payroll records).

Use Form 5466-B to meet the accounting requirements of IRC §6103(p)(3) when applicable.

The Privacy Act of 1974, at 5 USC § 552a(e)(8), requires that each agency make reasonable efforts to serve notice on an individual when any record on that individual is made available to any person under a compulsory legal process when the process becomes a matter of public record.

"Compulsory legal process" is:

The Compulsory Legal Process does not include interrogatories and motions for discovery unless in accordance with a court order enforcing such discovery.

Except for (5), (6) and (7) below, appropriate Disclosure and Chief Counsel personnel in the office releasing documents or giving testimony about an individual pursuant to a compulsory legal process will ensure that a notice is issued to the individual indicating that information concerning him/her was made available pursuant to compulsory legal process. The notice should contain a summary of the information provided and should be provided within 5 working days of any record being made public.

Whenever the individual whose information was made available under compulsory legal process is present in the judicial or administrative proceeding when that information is disclosed, the notice requirement set out in (4) may be considered satisfied and no additional notification is required. The case file will be noted that the individual was present at the time of disclosure.

If disclosure is in response to a grand jury subpoena or an ex parte order pursuant to IRC §6103(i)(1), 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.

Notification is not necessary where the compulsory legal process (whether or not a matter of public record) calls for information contained in a system of records which has been exempted from the requirements of 5 USC §552a(e)(8) pursuant to 5 USC §552a(j)(2).

Mailing the notice to the individuals last known address constitutes a reasonable effort to serve the notice.

A copy of the notice shall be placed in the case file.

In a non-IRS matter, witness fees received with a subpoena, court order or other written request requiring testimony by an IRS employee or official should be turned over immediately to the Disclosure Office along with the subpoena and other court related material.

The Disclosure Centralized Processing Unit (CPU) will return any witness fees received with a subpoena back to the submitter. If Disclosure authorizes the subpoenaed employee to provide testimony, Disclosure will work with the employee to collect any applicable witness fees and forward them to the appropriate office. See IRM 6.630.1.16.2(3) and (4),Jury or Witness Fees, for additional information on where to send the payment.

Payment of witness fees is required prior to the appearance and testimony of an IRS employee when these fees are mandated under Federal or state laws. Where testimony is to be permitted and witness fees have not been paid, the Disclosure Office should contact the requester to secure payment.

The Chief Finance Officer (CFO) requires deposit of all payments, including witness fees, on the date received, Once applicable payment is collected it will be forwarded to the appropriate office and coded with the proper accounting codes per IRM 6.630.1

When an employee is required to testify and possibly disclose confidential information or any other job related information, the following items must be kept in mind:

During testimony, follow the guidelines below:

Employees are entitled to reimbursement for any travel expenses associated with an appearance, but any fees received from the requesting party must be turned over to the IRS. See IRM 6.630.1.16.2(3) and (4), Jury or Witness Fees, for additional information.

Employees will be asked to write a brief summary of their testimony or state why they were not required to testify.

Any questions concerning a subpoena to testify, or to be deposed, should be directed to the field Disclosure Office.

Do not volunteer any information concerning pending litigation to non-IRS Counsel without prior approval.