Purpose: This IRM section provides instructions concerning the disclosure of returns and return information to officers and employees of federal agencies for the administration of federal non-tax criminal and terrorist-related laws.

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

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

Program Owner: The Disclosure office, under GLDS, is responsible for the Disclosure program and guidance. Each IRS organization is responsible for ensuring its employees are aware of and follow Servicewide Disclosure policy.

Primary Stakeholders: The following offices have responsibility for disclosures to federal agencies for the administration of federal non-tax crimes:

Disclosure Managers have been delegated the authority to approve IRC 6103(i)(1), IRC 6103(i)(2) and IRC 6103(i)(5) disclosures. After initial approval, the Disclosure staff may transmit the information.

The Disclosure caseworker assigned to process the order or written request will contact the requesting official, usually the Assistant United States Attorney (AUSA) named on the order and acknowledge receipt of the IRC 6103(i)(1) Ex Parte court order. Contacts are also to be made upon receipt of a written IRC 6103(i)(2), IRC 6103(i)(7)(A), or IRC 6103(i)(7)(B) request. If no AUSA is specifically named in the order or written request, a verbal statement from the United States Attorney indicating the name of the AUSA assigned to the case is acceptable. The contact must be recorded in the case history of the electronic inventory management system. Actions to be taken include:

After receipt of a court order or written request, and until requests have been satisfied, the caseworker must maintain contact with the requesting official regarding the status of the order, the estimated date all actions will be completed and any other pertinent information.

Internal IRM procedures do not require the IRS to review Ex Parte applications as part of responding to the orders themselves. When applications are provided, or references in the order to the application indicate the proper official did not approve the application, Disclosure personnel have a responsibility to ensure that the applications meet statutory requirements. Applications should not be solicited simply to check for adherence with the statute.

During the initial contact with the requesting agency, the caseworker will obtain the date the requester requires the information if the Ex Parte court order or written request does not already include this information. This date will be used to determine if expedite processing is needed or alternative methods will be used to locate the requested documents, such as using special messengers to obtain documents from the Federal Records Center (FRC).

During the initial contact, the caseworker should advise the requester that the IRS no longer provides certified copies of returns with our initial response, but certified copies can be requested at a later date if needed for presentation in court.

Where agreements with requesting officials are in effect regarding contacts, timeframe expectations, etc., document the agreements in the history notes and maintain the agreements in a permanent administrative file.

The Disclosure caseworker is responsible for ensuring that all request case files contain complete written audit trails including, but not limited to, information on communications with requesters and the extent and results of search efforts.

The Disclosure caseworker will review all releases of documents pursuant to IRC 6103(i)(1), IRC 6103(i)(2) or IRC 6103(i)(5) to ensure that only covered documents and information are released to the United States Attorney’s Office.

Ex Parte court orders and written requests for disclosure that contain imperfections will be processed as if the request met the conditions of the statute. In these cases, the caseworker will immediately contact the requester and obtain an amended order or request, if required, while taking the necessary steps to obtain clearances and screen the requested files or returns. Requests that cannot be honored because they do not fall within the scope of the IRC 6103(i) process will also be discussed with the requester and the reason(s) for non-processing will be clearly communicated. The case history of the electronic inventory management system must also contain notes concerning problems with requests and any actions taken to correct these problems.

Do not delay processing requests for information pending the receipt of a perfected order or written request. Make no disclosures, however, until you receive the required written request that meets all statutory requirements.

Exhibit 11.3.28-1 contains guides for processing IRC 6103(i)(1), IRC 6103(i)(5) and IRC 6103(i)(7)(C) requests and Exhibit 11.3.28-2 contains a guide for processing IRC 6103(i)(2) requests.

An amended order or written request will not be required if the taxpayer's identification number (TIN) is not provided since IRC 6103(i)(1) and IRC 6103(i)(2) do not require the TIN. The Disclosure caseworker should attempt to secure the TIN from the U.S. Attorney or other requesting official, and should disclose the returns and/or return information only if certain that they pertain to the taxpayer named in the order or request. In some cases, the order may indicate that the name of the taxpayer is unknown and substitute a dummy name such as "John Doe." As long as sufficient other information (TIN, date of birth, address, etc.) is provided, the order can be honored. In such a case, it is still necessary for Disclosure personnel to be sure that the tax information being released is covered by the order.

Ex Parte court orders issued pursuant to IRC 6103(i)(1) should be as detailed as possible. If an Ex Parte order requests information concerning classes or groups of individuals (e.g., all investors in X Corporation located in the State of X, without identifying each individual by name), the disclosure caseworker should do sufficient research to try and identify all relevant individuals. Contact with the AUSA should be made if additional information is needed. The Disclosure Manager, as the delegated authority, will determine if the circumstances outlined in the order warrant release of the information without requiring specific identification of each individual or other entity covered by the order. The Disclosure Manager may consider the following in determining how to respond to the Order:

IRC 6103(i)(1) permits the disclosure of tax information to the DOJ in the investigation and prosecution of a non-tax criminal violation. If the non-tax violation listed in the order is identity theft (i.e., 18 USC 1028(a)), tax returns and/or return information may be released in full without redaction, including returns or return information that indicate identity theft.

If the non-tax violation listed in the order is something other than identity theft the Disclosure caseworker, after receiving an approved Authorization memo, must contact the AUSA and alert them to the ID theft issue. If the AUSA determines they want an un-redacted copy of the information, it will be provided in an un-redacted form. The Disclosure employee must inform the AUSA that it must seek approval from the IRS prior to disclosing the un-redacted information under IRC 6103(i)(4)(c).

If after contacting the AUSA it is determined that the AUSA wants the information in a redacted form then the employee must redact the information to protect the identity of the victim and/or alleged ID thief (whoever is the party not named in the Order). The Disclosure employee must use pattern language to inform the AUSA that the redactions were applied as there is an ID theft marker on the account and to protect the un-named party.

If an IRC 6103(i)(1) order (after coordination with the requesting agency under (5) above) is determined to include tax documents (e.g., wage histories, letters to employers regarding incorrect SSNs submitted on Forms W-2), in the possession of the Social Security Administration (SSA), the case should be processed by the field Tax Law Specialist, who will obtain the necessary responsive documents from SSA. SSA has no statutory authority to provide tax documents to the requesting agency pursuant to an IRC 6103(i) request, only IRS can release tax documents in such cases. SSA will refer requesters who contact them for these records to the IRS. Additional information regarding these types of requests, and a processing Job Aid can be found on the Disclosure Share Point website.

An Ex Parte court order case may be closed only when all requested documents have been provided or all required special search efforts are exhausted. If a caseworker is unable to locate the requested records, they must notify the requesting official that the records cannot be retrieved and offer to provide alternative products. This contact must be noted in the electronic inventory management system’s case history and confirmed in writing in the response letter to the requesting official.

Recipients who have inspected or gained access to returns and return information pursuant to IRC 6103(i)(1), IRC 6103(i)(2), and IRC 6103(i)(5) are subject to the penalty provisions of IRC 7213, IRC 7213A, IRC 7431, and Title 18 USC 1905.

Disclosures made pursuant to IRC 6103 (i)(1), IRC 6103(i)(2), IRC 6103(i)(3), IRC 6103(i)(5), or IRC 6103(i)(7) are subject to the statutory safeguarding requirements of IRC 6103(p)(4) and IRS oversight. Federal agencies receiving return information from DOJ pursuant to court orders are responsible for maintaining the confidentiality of the information and comply with Pub 1075, Tax Information Security Guidelines for Federal, State and Local Agencies. See IRM 11.3.36, Safeguard Review Program, for additional information.

Access to returns and return information under an IRC 6103(i)(1), IRC 6103(i)(5), or IRC 6103(i)(7)(C) court order is accomplished in five stages.

The Disclosure Office will conduct a search of the Master File (MF) to identify the taxpayer’s account(s) for the tax period(s) requested and order the necessary returns and taxpayer return information.

If there are indicators of identity theft or a fraudulent tax return on the taxpayers account, the Disclosure caseworker should discuss this matter with their manager and document their findings in the electronic inventory management system. Disclosure Managers hold the delegated authority to make the impairment determination on whether the identity theft information should be released or redacted. See IRM 11.3.28.2(15), (16) and (17) for additional information.

If there are periods with open collection, examination, criminal investigation(CI) or other compliance activity, the Disclosure Office will obtain clearances from the applicable functions before releasing any return information pertaining to those periods.

Consider the following when obtaining clearances:

Maintain documentation of clearances in the electronic inventory management system and notate in the case history.

Since the official designated in Delegation Order 11-2 (as revised) must certify to the court the basis for denying disclosure under IRC 6103(i)(1) or IRC 6103(i)(5), any objection must clearly show that disclosure would seriously impair a civil or criminal tax investigation or identify a confidential informant. Possible alternatives should be explored.

In the event there is an objection to granting disclosure, a memorandum of explanation will be prepared by the function for the case file and will include detailed facts and circumstances to establish a basis for justifying denial of disclosure, i.e., it will identify a confidential informant or specifically how it will seriously impair a civil or criminal tax investigation. The functional representative should also be prepared to discuss their objection with the requesting official.

If a determination is made to withhold information, notify the requester that the official making the determination is available to discuss the decision and that the requester can appeal a decision to withhold information to the next level of delegated authority, up to the Director, Office of Governmental Liaison, Disclosure and Safeguards.

In situations involving unusually large volumes of records, the Disclosure Office caseworker may contact the requesting agency to determine whether a more limited response would be acceptable.

Where a requester initiates contact with the Disclosure Office in advance of obtaining an Ex Parte court order, the office should also attempt (without disclosing the scope or existence of a record) to have the requester pinpoint the information that is actually needed.

When the MF indicates no record of filing, the Disclosure Office will certify lack of any record using Form 3050, Certification of Lack of Record, or equivalent (see IRM 11.3.6, Seals and Certifications). The Form 3050 must clearly indicate that the lack of record does not extend beyond any disclosure cut-off date (see (17) and (18) below) in the order. In order to ensure that the Certification of Lack of Record does not extend beyond any disclosure cut off date the following language should be added to the Form 3050 in the Description of Information Sought section:
As of DD/MM/YYYY, the Internal Revenue Service shows no return(s) filed for the following [tax year(s) or tax period(s)] pertaining to the [individual or business entity] described above.
The DD/MM/YYYY date entered in the pattern language should be the cut-off date of the Order. Case documentation should also state that all information being provided to the AUSA is within the time frames of the Order.

If the MF shows "no entity" and a TIN was furnished, the Disclosure Office caseworker should contact the U.S. Attorney or other requesting official to verify the accuracy of the TIN.

The caseworker will follow-up with Special Search or the FRC within 3 working days, if the documents or confirmation of documents being forwarded to GSS were not received. If the Disclosure Office caseworker experiences any delay in obtaining the returns and files after the initial follow-up, he/she should contact their Disclosure Manager who will contact the Files or FRC supervisor where the returns are located for assistance.

An Ex Parte court order for copy of any Freedom of Information Act (FOIA) requests submitted by the subject(s) of the order and the FOIA case file information must also cite the Privacy Act, 5 USC 552a. Per Counsel advice, these documents are protected by the Privacy Act and not releasable under IRC 6103(i). If the order includes the appropriate language, process the request. If the order does not contain the appropriate language, contact the AUSA and secure a letter signed by the U.S. Attorney requesting the disclosure of the FOIA case information pursuant to the Privacy Act.

The Disclosure Manager will edit any information prohibited from disclosure.

Information that must be edited includes:

Unless otherwise provided in the Ex Parte order, disclosure will be limited to those returns and return information in the IRS's possession on the date of the order.

Returns or related return information subsequently received or developed for the years authorized by the order may be disclosed only if the order provides for further disclosures and designates a specific cut off period.

In no case will the cutoff date exceed 90 days, even if the order specifies a cutoff date that exceeds the 90 day limit. This 90 day period is incorporated in DOJ’s U.S. Attorney’s Manual. Certification of Form 3050 must apply to non-filing only for the time frame covered by the Ex Parte court order. See (10) above for information on how to address the cutoff date of the Order when completing the Form 3050. See IRM 11.3.6 for more information on using the Form 3050 to certify a lack of record.

Generally, information disclosed under IRC 6103(i) can only be re-disclosed to federal employees personally and directly engaged in the investigation. State and local personnel will be considered federal employees for disclosure purposes as long as the employees are:

When state and local personnel are formally appointed, they will be advised in writing of disclosure restrictions and the penalties for unauthorized disclosures and inspections. See IRM Exhibit 9.3.1-2, Statement Regarding Use and Disclosure of Federal Tax Information By State or Local Government Employee Appointed to Assist A Federal Grand Jury Investigation.

State and local government personnel involved in the federal investigation are prohibited from using or disclosing the data obtained through the federal Ex Parte Court Order process for state or local law enforcement purposes.

After clearance actions and screening of returns and files have been completed, the Disclosure Office caseworker will prepare a response transmittal letter using the appropriate Pattern Letter for the signature of the Disclosure Manager.

Some offices may have procedures in place for the authorizing official (usually the Disclosure Manager) to approve the disclosures separately from the response transmittal process. In this situation, the authorization memo Pattern Letter(s) on the Disclosure Share Point site must be used to obtain the Disclosure Manager’s authorization. This is acceptable as long as the written approval record is maintained with the case.

Once the initial response transmittal letter authorized by the official designated by Delegation Order 11-2, found in IRM 1.2.2.12.2, is sent to the requester, the Disclosure Office caseworker assigned to work the court order may make subsequent transmittals of information.

The existence of a transaction code on a transcript for a Substitute For Return (SFR) doesn't mean an actual paper SFR was prepared. See IRM 11.3.6, Seals and Certifications, for details on certifying SFRs and lack of records.

Once a related statute call is made in a Bank Secrecy Act or money laundering investigation, the investigation is treated as a tax administration activity, even though the violation is not a pure tax violation. An Ex Parte court order applies only to enforcement of federal criminal statutes not involving tax administration. Therefore, it is not necessary for Criminal Investigation to obtain an Ex Parte order for itself on related statute cases as long as IRC 6103(h) procedures have been followed. In a multi-agency investigation/grand jury involving other non-tax charges such as bank fraud, Medicare fraud, and money laundering (with no substantive tax charges), an Ex Parte court order is required if the return/tax information will be used for the non-tax charges, even though the IRS representative is working on a related statute case. If a related statute call is not made, IRS special agents must obtain an Ex Parte order prior to accessing returns and return information for the non-tax (e.g., money laundering) charges they are investigating.

The use of information contained in a sealed IRC 6103(i)(1), IRC 6103(i)(5), or IRC 6103(i)(7)(C) order to initiate a tax investigation depends on the instructions in the application. Generally, the sealed document will indicate how long and to what extent the information is to remain sealed. If the instructions impose no disclosure constraints, the IRS may use pertinent information to initiate a tax investigation. In any such case, contact Area Counsel for advice on whether the instructions in the application limit the IRS's use of the information.

Providing copies of returns and taxpayer return information in response to an Ex Parte Court Order is per an agreement between the IRS, the Department of Justice and the federal courts. Copies will always be provided on the initial response to the order. If, on the rare occasion, the original returns are needed at a later date in order to successfully prosecute the case, to the extent the documents still exist the Disclosure caseworker should secure the original returns, certify them, if necessary, and send them to the DOJ.

A request under IRC 6103(i)(2) must be in writing and signed (approved) by the head of the federal agency or the Inspector General of the agency, or in the case of the Department of Justice, the Attorney General, the Deputy Attorney General, the Associate Attorney General, an Assistant Attorney General, any U.S. Attorney, any special prosecutor appointed under 28 USC 593, any attorney in charge of an organized crime strike force, the Director, Federal Bureau of Investigation, or the Administrator of the Drug Enforcement Administration.

If possible, the requester should provide advance notice of his/her intent to make an IRC 6103(i)(2) request. The actions to be taken are the same as for Ex Parte court orders.

The caseworker responsible for processing the request will segregate the other than taxpayer return information from the returns and taxpayer return information. See IRM 11.3.28.4(14) for other information that must be segregated.

Disclose the name and address of the taxpayer under IRC 6103(i)(2) only if other than taxpayer return information is also requested. Requests for addresses only cannot be honored because IRC 6103(i)(2) requires that the requester provide an address.

Seek approval by the designated official per Delegation Order 11-2, found in IRM 1.2.2.12.2, prior to releasing any information. The authorization memo Pattern Letter(s) on the Disclosure Share Point site must be used to obtain the Disclosure Manager’s authorization.

Disclosure of related material subsequently developed for the years authorized may be made on a continuing basis even though the original IRC 6103(i)(2) letter might not include a request for continued disclosures. Such disclosures may be made only if the requester indicates an interest in or need for this information subsequent to the initial disclosure. The information disclosed may be discussed as often as necessary.

Transmit the requested information, after approval by the designated official per Delegation Order 11-2, using the appropriate Pattern Letter.

While performing their official duties, IRS employees may obtain information indicating that non-tax criminal violations may have occurred, or they may witness criminal acts that are under the jurisdiction of another federal agency.

IRC 6103(i)(3)(A) provides for disclosure in writing of other than taxpayer return information that may constitute evidence of a violation of a non-tax federal criminal statute. Care must be taken in determining whether the referral information is taxpayer return information, as defined in IRC 6103(b), or other than taxpayer return information.

Information may be disclosed to the extent necessary to tell the head of the federal agency having enforcement responsibility over the federal criminal statutes thought to be violated.

Information will not be disclosed if disclosure would identify a confidential informant or seriously impair a civil or criminal tax investigation.

Information disclosed pursuant to IRC 6103(i)(3)(A) need only be such that it may constitute evidence of a non-tax federal criminal violation.

Information that merely indicates a violation may have occurred is adequate to warrant referral to the appropriate federal agency. The information must sufficiently identify the specific criminal act or event or statute to which it relates.

For referrals made under IRC 6103(i)(3)(A), when return information (other than taxpayer return information) that may constitute evidence of a violation of a non-tax federal criminal law is disclosed, the identity (name, address, SSN and date of birth) of the taxpayer may also be disclosed. The taxpayer identity information is treated as return information, other than taxpayer return information, in this instance. However, taxpayer identity information may not be disclosed by itself under IRC 6103(i)(3)(A).

If a return or taxpayer return information contains the evidence of the violation, the IRS may not initiate the disclosure.

IRC 6103(i)(3)(B)(i) provides for the disclosure of return information, including taxpayer return information, to the extent necessary to advise appropriate officers or employees of any federal or state law enforcement agency of the imminent danger of death or physical injury to any individual. The source of information detailing the threat of imminent harm is irrelevant. IRS makes its own determination whether an emergency situation exists. These disclosures are limited to federal or state law enforcement agencies and cannot be made to local law enforcement agencies such as county or city police departments.

Return information, including taxpayer return information, may be disclosed to appropriate officers or employees of any federal law enforcement agency under IRC 6103(i)(3)(B)(ii) in circumstances involving imminent flight of any individual from federal prosecution.

Delegation Order 11-2, found in IRM 1.2.2.12.2 , names those authorized to disclose or authorize disclosures under IRC 6103(i)(3).

IRM 11.3.34, Disclosure for Non-Tax Criminal Violations, provides instructions for instances when IRS employees receive non-tax information about a possible non-tax violation of federal, State or local criminal laws.

The Disclosure Manager or other IRS employee having IRC 6103(i)(3)(B)(i) authority should be informed in situations involving the imminent danger of death or physical injury to any individual.

The Disclosure Manager or receiving office will contact the authorized IRS official (see Delegation Order 11-2, found in IRM 1.2.2.12.2 ) for consultation and disclosure authorization, as necessary.

When disclosure is authorized, the Disclosure Manager or other function may provide the information by telephone to the appropriate officer or employee of the federal or state law enforcement agency that could take action on the imminent situation.

The U.S. Secret Service is responsible for protecting the President and certain other Government officials and public figures including the:

When a taxpayer makes a threat against any of these individuals during an official contact (e.g., during the preparation of a tax return in an IRS office, or by written statements contained on the tax return), the Disclosure Manager, special agent or other authorized person will immediately disclose the threat, together with the name and address of the taxpayer by telephone to the local Secret Service field office.

IRC 6103(i)(3)(B)(ii) permits the disclosure of return information to the appropriate officers or employees of any federal law enforcement agency in situations involving the imminent flight of an individual from federal prosecution. See Delegation Order 11-2 for those having delegated authority to make this type of disclosure.

The referring office must maintain thorough documentation to provide a review trail for each disclosure under IRC 6103(i)(3)(B). The accounting requirements of IRC 6103(p)(3) apply to these disclosures. See IRM 11.3.37, Recordkeeping and Accounting for Disclosures.

IRC 6103(i)(3)(B) permits disclosure of both taxpayer return information and return information (other than taxpayer return information). The source of the information concerning the threat is irrelevant. IRS must decide on its own whether an emergency situation exists.

Disclosures under IRC 6103(i)(3)(B) are not subject to the confidential informant and tax impairment determinations required under IRC 6103(i)(6). However, it is IRS policy never to release the identity of confidential informants.

Subject to the conditions prescribed in IRC 6103(i)(4), returns and return information, including taxpayer return information and other than taxpayer return information, disclosed under IRC 6103(i)(1), IRC 6103(i)(2), IRC 6103(i)(3)(A), IRC 6103(i)(3)(C), or IRC 6103(i)(7) may be disclosed in an administrative or judicial proceeding (including the sentencing phase) pertaining to the enforcement of a specifically designated non-tax federal criminal statute or related civil forfeiture where the U.S. or a federal agency is a party.

In the case of returns and taxpayer return information obtained under IRC 6103(i)(1) and IRC 6103(i)(7)(C), disclosure is conditioned upon the court's determination that the return or taxpayer return information is probative of a matter in an issue relevant to establishing the commission of a crime or guilt or liability of a party, or to the extent required by order of the court pursuant to Title 18, U.S. Code, or rule 16 of the Federal Rules of Criminal Procedure. The judge's determination may be oral or in writing, consistent with that court's practice. The IRC 6103(i)(4) determination cannot be made as part of the initial Ex Parte court order.

Return information that is other than taxpayer return information disclosed pursuant to IRC 6103(i)(1), (i)(2), (i)(3)(A) or (i)(3)C) and (7), does not require a court determination described in IRM 11.3.28.8(2) prior to being introduced into a court proceeding.

No returns or return information, including taxpayer return information, may be admitted into evidence in these proceedings if the IRS determines that introducing the information into evidence would identify a confidential informant or seriously impair a civil or criminal tax investigation.

The U.S. Attorney or other federal official should notify the IRS in all cases where the United States intends to seek to introduce returns or return information, including taxpayer return information, into evidence.

An accounting for disclosures made under IRC 6103(i)(4) is not required. See IRM 11.3.37.1(7).

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

If disclosure is made in response to an Ex Parte court order pursuant to IRC 6103(i)(1), IRC 6103(i)(5), or IRC 6103(i)(7)(C), notice will not be given until the Ex Parte court order becomes a matter of public record.

If the Ex Parte court order does not indicate whether it is a matter of public record, the issuing authority will be asked to advise the IRS if the matter becomes public so that the required notice may be issued.

The required notice should include the following sample language:
Subsection (e)(8) of the Privacy Act requires that agencies ..."make reasonable efforts to serve notice on an individual when any record of such individual is made available to any person under compulsory legal process when such process becomes a matter of public record." This is your legal notice that your YYYY tax return/return information was provided to [name of third party].

The notice will be mailed to the individual's last known address. One copy of the notice will be maintained in the disclosure file and one copy should be associated with the record disclosed, if practical.

This procedure will be carried out by the Disclosure Manager or under his/her direction.

See IRM 11.3.41.14.5 and IRM 11.3.35.17, Notifying Individuals That Their Records Were Made Available to a Person Under Compulsory Legal Process, and IRM 11.3.35.16, Accounting Requirements, for a full explanation of requirements and procedures.

Accountings for disclosures of tax returns and return information must be made in accordance with IRM 11.3.37, Recordkeeping and Accounting for Disclosures.

A notation must be placed in the electronic inventory management system’s history notes indicating the completion of Form 5466-B, Multiple Records of Disclosure, or accounting for disclosures by some other means. A copy of Form 5466-B or other accounting document, may also be placed in the file, but is not required.

Submit a narrative record of accounting for Ex Parte court orders that are sealed or not a matter of public record. The 5466-B accounting places a Transaction Code on the taxpayer account that can be requested and/or released on a transcript of account. A narrative accounting avoids the potential for taxpayer notification that their information has been disclosed, prior to the order being made a public record.