IRS matters. When testimony or document production is sought in an IRS matter by a party to the litigation other than the government (e.g., the defendant in a criminal tax case, a petitioner in a U.S. Tax Court case, the plaintiff in a refund litigation case, or the plaintiff in a Federal Tort Claims Act case), the attorney primarily assigned to the litigation is responsible for preparing the proposed authorization and submitting it for approval.

Non-IRS matters. When testimony or document production is sought in a non-IRS matter, the IRS Disclosure Office is responsible for preparing the proposed authorization and submitting it for approval. IRM 11.3.35.7, Procedures in Non-IRS Matters. See IRM 11.3.35.5, Requests Requiring Headquarters Authorization, for further guidance as to requests requiring IRS headquarters authorization or additional coordination. IRS officials charged with preparing or authorizing testimony or document production are instructed to coordinate with the appropriate Counsel office before acting. IRM 11.3.35.4(5), Requests Authorized by Field Officials.

IRS congressional matters. When testimony or document production is sought in an IRS congressional matter, the Office of Legislative Affairs is to be contacted for further instruction. These authorizations must also be cleared through the Associate Chief Counsel (Procedure & Administration). IRM 11.3.35.5(3), Requests Requiring Headquarters Authorization.

The IRS’s Touhy regulations concerning the production of written records by, and the oral testimony of, its current and former officers, employees and contractors are found at Treas. Reg. §§ 301.9000-1 to 301.9000-7. These regulations require, with limited exceptions, current and former IRS officers, employees, and contractors to obtain prior approval before they may produce IRS records or information or testify in judicial or administrative proceedings or in congressional matters in response to a request or demand for testimony or production of documents.

Delegation Order No. 11-2 sets forth the IRS and Chief Counsel officials who may authorize testimony or disclosure of IRS records or information in response to requests or demands for such information.

Exhibit 1.2.2-2, Delegation Order 11-2 Reference Chart , contains tables referencing various testimony and production scenarios and those responsible for the preparation and review of the testimony authorizations.

The scope of the authorization will be restricted in accordance with applicable disclosure laws (e.g., IRC §§ 6103, 6104, 6105, 6110, 4424 and the Privacy Act, 5 U.S.C. 552a).

Without a written authorization, a current or former IRS officer, employee, or contractor may appear at the court, administrative agency or other authority, or to the Congress (including a committee or subcommittee) in person to advise that he or she is awaiting instructions from an authorizing official with respect to the request or demand for testimony or production of documents. Treas. Reg. § 301.9000-3(a).

To respond to a request or demand by the attorney (or other government representative) who is representing the IRS in a particular IRS matter. Treas. Reg. § 301.9000-3(b)(1);

To respond only in writing, under the direction of the attorney or other government representative who is representing the IRS in a particular IRS matter, to a request or demand, including, but not limited to, admissions, document production, and written interrogatories. Treas. Reg. § 301.9000-3(b)(2);

To respond to a request or demand for expert or opinion testimony, issued to a former IRS officer, employee, or contractor, when the testimony sought involves general knowledge (such as information contained in published procedures of the IRS or Office of Chief Counsel) gained while the former officer, employee, or contractor was employed or under contract, respectively. Treas. Reg. § 301.9000-3(b)(3); or

When the testimony or production of IRS records or information is accomplished in accordance with an existing, more specific IRS procedure. Treas. Reg. § 301.9000-3(b)(4). These procedures include, but are not limited to, requests under the Freedom of Information Act or Privacy Act, requests for certain IRS records under 26 C.F.R. § 601.702(d) (e.g. tax returns and transcripts of accounts, approved applications for tax exemption under section 6104, public comments to published guidance), disclosures to state tax agencies under section 6103(d), and disclosures to the Department of Justice (DOJ) pursuant to an ex parte order under section 6103(i)(1).

IRS records or information includes, but is not limited to, returns and return information as those terms are defined in IRC § 6103(b), tax convention information as defined in IRC § 6105, information gathered during Bank Secrecy Act and money laundering investigations, leave, payroll, and other personnel records, management records and reports, and statistical records. This term also includes Office of Personnel Management records, Equal Employment Opportunity Commission records, Office of Government Ethics records, and Department of Labor records that are in the custody of the IRS.

IRS records or information also includes information received, generated or collected by an IRS contractor pursuant to the contractor’s contract or other agreement with the IRS.

The term does not include records or information obtained by IRS officers and employees solely for the purpose of a Federal grand jury investigation while under the direction and control of U.S. Attorney’s Office. The term does, however, include records or information obtained by IRS before, during or after a Federal grand jury investigation if the records or information are obtained at the administrative stage of a criminal investigation, from IRS files such as transcripts or tax returns, or for use in a subsequent civil investigation.

Employees receiving subpoenas from opposing counsel regarding grand jury information obtained by an employee solely for the purpose of a federal grand jury investigation while under the direction and control of the U.S. Attorney’s Office in a grand jury investigation should request guidance from the Department of Justice (usually the Assistant U.S. Attorney assigned to the grand jury investigation) to obtain any direction necessary pursuant to Fed. Crim. Proc. Rule 6(e), which limits disclosure of matters occurring before a grand jury. IRM 11.3.35.9(2), Grand Jury Data. The Counsel attorney handling the subpoena or request should contact the Area Counsel (Criminal Tax) for coordination or assistance.

Testimony sought by opposing counsel regarding information obtained during the administrative stage of a criminal investigation that is later referred to a grand jury requires authorization pursuant to Treas. Reg. § 301.9000-3, because the employee in that early stage of the investigation is performing official duties on behalf of the IRS or because of the employee’s official status with respect to the administration of the internal revenue laws or any other laws administered by or concerning the IRS. See Treas. Reg. § 301.9000-6, Example 4. The Counsel attorney handling the subpoena or request should contact the Area Counsel (Criminal Tax) for coordination or assistance.

Testimony sought by opposing counsel with regard to returns or return information, obtained by a grand jury pursuant to IRC 6103(h)(2), requires authorization pursuant to Treas. Reg. § 301.9000-1. Returns and return information retain their status as such even when turned over to a grand jury.

Table 1 of Delegation Order No. 11-2 covers testimony authorizations in U.S. Tax Court proceedings. In Tax Court cases, no testimony authorization is required when testimony or production of documents is requested on behalf of the Commissioner. When testimony or production of documents is requested on behalf of the petitioner, the Chief Counsel attorney assigned to the matter is responsible for preparing the testimony authorization. The Area Counsel for the Chief Counsel attorney assigned to the matter is the authorizing official. Delegation Order No. 11-2, Table 1.

Table 2 of Delegation Order No. 11-2 covers testimony authorizations in cases referred by or on behalf of the IRS to the Department of Justice (including an office of an U.S. Attorney) for defense, prosecution or other affirmative action, when the U.S. government is a party and is represented by DOJ in refund, collection, summons, and FBAR litigation; U.S. Bankruptcy, U.S. Court of Federal Claims, and State Court Collection Litigation; U.S. District Court Criminal Tax prosecution; and U.S. District Court Disclosure, Privacy Act, and FOIA litigation. No testimony authorization is required when testimony or production of records is requested by the government. The Chief Counsel attorney assigned to the matter is responsible for preparing the testimony authorization and his or her Area Counsel or Associate Chief Counsel is the authorizing official. Delegation Order No. 11-2, Table 2.

Table 3 of Delegation Order No. 11-2 covers testimony authorizations in cases referred by or on behalf of the IRS to the Department of Justice (including an office of an U.S. Attorney) for defense, prosecution, or other affirmative action, in IRS matters that involve Personnel, Labor Relations, Procurement, Bivens, and FTCA. No testimony authorization is required when testimony or production of records is requested by the government. The General Legal Services (GLS) attorney assigned to the matter is responsible for preparing the testimony authorization. The Deputy Associate Chief Counsel (GLS) or the Area Counsel (GLS) with the concurrence of the Associate Chief Counsel (GLS) or Deputy Associate Chief Counsel (GLS) are the authorizing officials. Delegation Order No. 11-2, Table 3.

Table 4 of Delegation Order No. 11-2 covers testimony authorizations in judicial and administrative proceedings in a non-IRS matter and testimony or production of records is sought from a Headquarters employee or function. The Chief, Disclosure is the authorizing official. A headquarters Privacy, Government Liaison, and Disclosure (PGLD) caseworker prepares the authorization and it is reviewed by Branches 6 or 7 of Procedure and Administration. Delegation Order No. 11-2, Table 4.

Table 5 of Delegation Order No. 11-2 covers testimony authorizations in judicial and administrative proceedings when the IRS is not a party and testimony or production of records is sought from someone other than a Headquarters employee or function. A Disclosure Manager prepares the authorization and it is reviewed by the liaison Area Counsel servicing the Disclosure Manager’s geographical location. The PGLD Area Manager is generally the authorizing official. Delegation Order No. 11-2, Table 5.

Table 6 of Delegation Order No. 11-2 covers testimony authorizations in non-IRS matters that involve Title 31, Bank Secrecy Act judicial and administrative proceedings when the IRS is not a party, but a Federal, State, or Local government is a party and expert testimony is sought from IRS employees maintaining this information. A HQ PGLD employee prepares the authorization and coordinates the authorization with the Small Business/Self-Employed (SB/SE) or Criminal Investigation (CI) Divisions as appropriate. It is reviewed by Branches 6 or 7 of Procedure and Administration. The Chief, Disclosure is the authorizing official. Delegation Order No. 11-2, Table 6.

Table 7 of Delegation Order No. 11-2 covers testimony authorizations in any matter involving requests by congressional committees for testimony or production of records from any IRS or Chief Counsel employee or function. Staff designated by the Director, Legislative Affairs will prepare the authorization. Depending on the matter, the Director, Legislative Affairs may designate a headquarters PGLD caseworker to prepare the authorization. The authorization is reviewed by Branches 6 or 7 of Procedure and Administration. The Deputy Commissioners are the authorizing officials for matters under their respective jurisdictions. The authority to authorize interviews (but not testimony) of IRS employees may be delegated to the Director, Legislative Affairs. Delegation Order No. 11-2, Table 7.

The return date of the request or demand

The name, title, and post-of-duty of the current or former IRS officer, employee, or contractor upon whom the request or demand was served

On whose behalf and by whom the request or demand was served

The nature of the testimony or documents subject to the request or demand

Whether the request or demand would require the disclosure of information that would identify, or tend to identify, a confidential informant, tax treaty (convention) information protected under IRC § 6105, or would require the release of other sensitive or privileged information

In the case of tax information, whether the party requesting or demanding the information is entitled to it under any of the provisions of IRC § 6103

In the case of tax treaty (convention) information, whether the party requesting or demanding the information is entitled to it under IRC § 6105

Whether the request or demand would require the disclosure of information that would seriously impair federal tax administration

Whether there is an open civil or criminal tax investigation and, if so, the IRS function that has jurisdiction over the investigation

The availability or feasibility of producing the information or testimony sought; i.e. time limits and volume or format of documents

In non-IRS matters, whether the burden on agency resources outweighs the possible benefit to the government should be considered in determining whether to authorize testimony. Generally, IRS resources should not be expended in private litigation. Requests for IRS expert testimony in private litigation will generally be denied. The local Disclosure Officer should offer alternate sources or methods for obtaining the requested records or information, to the extent practicable (e.g., Freedom Of Information Act (FOIA) requests, Forms 4506, IRC §§ 6103(c) or (e) disclosures).

If an employee is faced with a court order to testify or produce records or information that is not authorized to be disclosed, the subpoenaed employee should appear and decline to respond with assistance and under the guidance of government counsel.

An employee should not be held in contempt of court for refusing to testify or disclose agency records or information in accordance with the terms of a testimony authorization or when awaiting instructions.

The authorizing official should consider coordinate with the Department of Justice (including an office of an U.S. Attorney) and the party requesting the testimony. This may result in the withdrawal of the subpoena or the filing of a motion to quash or a motion for a protective order. If an acceptable alternative is not reached, then the subpoenaed employee will appear and respectively decline to testify.