At any point in the Trust Fund Recovery Penalty process, employees may receive a FOIA request for access to the files. Each request must be considered based on the current status of the case.

If a FOIA requester mentions other persons liable for the penalty or IRC §6103 in the request, Disclosure personnel shall consider both FOIA and IRC §6103(e)(9) provisions to determine releasability of information regarding other responsible parties. IRC §6103(e)(9) authorizes, upon written request by the responsible officer, disclosure to that officer of the names of other responsible persons, whether the IRS has attempted to collect from these other persons, the nature of the collection activities, and the amount collected. See IRM 11.3.2.4.13, Disclosures to Persons with a Material Interest, and IRM 11.3.40, Disclosures Involving Trust Fund Recovery Penalty Assessments, for detailed guidance on what information is available under IRC §6103(e)(9).

A FOIA request which does not include a statement requesting information regarding other responsible parties shall be handled under the rules governing protection of each officer's privacy as outlined in IRM 11.3.40.8, Access Considerations.

A FOIA request letter meets the requirement for a written request for information under IRC §6103(e)(9) if it specifically requests information available under IRC §6103 regarding the liability of other individuals for the TFRP. The case file will be redacted and provided under the appropriate FOIA considerations, and the data available under (e)(9) will be provided at the same time but in a separate portion of the response letter. This letter must explain that the additional items of information contained in the letter are being provided pursuant to IRC §6103(e)(9) and not the FOIA. Below is suggested language for the response letter:

Copies of credit bureau reports obtained in the course of compliance activities may be provided to the taxpayer to whom they pertain unless there is a harm to tax administration. The Fair Credit Reporting Act (FCRA), 15 USC 1681, places no restrictions on government release of credit reports. There is nothing in the FCRA that prohibits the disclosure to the taxpayer. Consumer reporting agencies are required to provide the consumer with data. The only statutory prohibition against disclosure appears in section 1681(r). That section prohibits an officer or employee of a consumer reporting agency from revealing information to a person who is not authorized to receive it.

A FOIA request may be received that does not describe specific records or is too broad or nebulous and relies on "A Citizen's Guide on Using FOIA and the Privacy Act of 1974 to Request Government Records."

Normally, this would be considered an imperfect request. However, if such non-specificity is predicated on the quote "…no individual is required to name a system of records…" from the Citizen's Guide to FOIA, the following language shall be incorporated in the response:

The response letter shall also cite, as usual, any other missing material needed to perfect the request.

ChoicePoint is an information service used primarily by revenue officers and revenue agents that includes information about a taxpayer's neighbors, including their addresses and social security numbers.

When a taxpayer requests a copy of his or her records (such as in examination or collection files) and ChoicePoint reports and/or data are found within those records, Disclosure personnel shall apply the following guidelines in processing the request:

If a request is received for information contained in the Automated Lien System (ALS) database for all liens in any given county or state, the requester will be contacted and informed that only BMF liens are subject to disclosure from the ALS and information pertaining to individuals is not available. If BMF data is not being sought, the requester shall be informed that the requested information is exempt from disclosure pursuant to FOIA exemptions (b)(6) and (b)(7)(C).

If the request is for BMF data, it must be transferred to the Baltimore Disclosure office following the procedures in IRM 11.3.13.5.12. That office will complete processing of the request in accordance with the following procedures.

A formal request for an estimate of the cost for the ALS extract for the particular state(s) or other geographical area and any other parameters of the search, will be sent to the attention of the Program Analyst for ALS, at S:C:CP:FP:TI.

If the FOIA request contains a commitment to pay, regardless of the cost involved, the extract and the costs involved will be provided to the Disclosure office by the ALS Program Analyst within 1-2 weeks after receipt of the formal written request.

If the FOIA request does not contain a commitment to pay, or the commitment is not sufficient to cover the estimated cost, the cost estimate only, and not the extract itself, will be provided to the Disclosure office within 1-2 weeks after receipt of the formal written request. The extract will be created and provided to the Disclosure office within two weeks of receipt of a formal commitment to pay the estimated cost.

When processing requests for a copy of the memorandum submitted by managers for issuance of pocket commissions for specific employees, the following guidelines shall be followed:

For requests submitted in the form of a series of questions pertaining to the pocket commissions for specific employees, Disclosure personnel shall advise the requester that the response will deal with only those portions of the request that conform to the FOIA. They shall also advise that the FOIA does not require agencies to respond to questions; however, information relevant to the pocket commission is available in IRM 1.16.6, Pocket Commissions.

Any information provided pertaining to specific employees shall be limited to the type of information available in the Public Information Listing; therefore, the name and title of the employee will be provided in accordance with IRM 11.3.13.9.12.1.

Undeliverable Refund Lists are available to the public under FOIA after being released by the IRS to the media under IRC §6103(m)(1). The list need not have been published by the media to otherwise be available.

Requests for Undeliverable Refund Lists for the entire country shall be directed to the Baltimore Disclosure office for response.

The Baltimore Disclosure office will coordinate the release of the Undeliverable Refund List with Media Relations, which maintains the information on CD-ROM.

Requests directed to local Disclosure offices for information pertaining to a specific geographical area, such as for a particular state, will be processed by that Disclosure office.

All requests for the Electronic Return Originator Lists (EROs) shall be transferred to the Baltimore Disclosure office for a response.

It has been determined that no applicable FOIA exemption can be applied to a request for a list of EROs who have been suspended within the past five years. The public's right to know outweighs any privacy interests of the ERO.

In some situations, a taxpayer may file a FOIA/Privacy Act request for transcript information and use the transcript along with a Statement of Lifetime Earnings obtained from Social Security to file a false claim. Disclosure offices should provide the CI function with a list of FOIA requesters who make the following or a closely similar request:

When processing these types of requests, they should be faxed to the attention of:
 
         Investigative Analyst
         Ogden Fraud Detection Center

Requests may be received that ask for a copy of the "notice from the District Director that I was required to keep books, records, and file return(s) as required by 26 USC §6001 and 26 CFR §1.6001-1(d) and §31.6001-6," or similar wording.

IRC §6001 does not require issuance of such a notice, but the Secretary may require a person by notice served to make returns and keep records. However, there are Notices of Inadequate Books and Records (L978 and L979). A revenue agent can issue these letters during a field audit where actual books and records have been reviewed and determined to be insufficient to correctly record income and expenses.

Notices to file returns do not, per se, exist. There are computer-generated letters sent by the campuses, which would not be retrievable in most cases. These letters, which have a notice number, request that the taxpayer file a return.

If the campus sends the case to the field (for examination or collection involvement), a copy of the notice may or may not be in the file. Field employees can also issue a letter to a non-filer, e.g. L964(DO), a copy of which would be kept in the case file.

Requests discussed in (1) above cannot be closed as imperfect simply because the IRS no longer has District Directors or because they do not clearly articulate the programs/procedures relating to IRC §6001.

Since some IRS offices kept files of Letter 978 and Letter 979 (Inadequate Records Notice) issued, at a minimum, a search of such files and/or IDRS shall be made to establish whether there is indication of a field examination for the years covered by the request. With no indication of a field audit, there would be no records responsive. Files of notices issued may be found in the local Technical Support Unit (Examination and Return Selection PSP).

If the search results in no responsive records being located, the letter to the requester shall contain the following language:

Governmental Liaison and Disclosure has been given authority from the Chief Financial Officer to release the IRS' Employee Identification Number upon receipt of a valid FOIA request seeking that information.

The EIN, used by the IRS on Form 1099 and Form W-2 where IRS is the payer, may be secured from the GLD FOIA website.

Title 28 of the Code of Federal Regulations, §0.111B implements non-disclosure provisions of the Witness Security Program statute.

Although records related to this area are rare, if a request specifically requests Federal Witness Security Program information or a search for records identifies Program information as responsive, you must contact the FOIA Senior Tax Law Specialist or FOIA Policy Analyst for further information and guidance on how to respond. Coordination with appropriate Department of Justice personnel may be required.

Disclosure offices may receive requests from individuals stating they are affiliated with news media and seeking a fee waiver or reduction on the basis of being a news media representative. The requester must establish his/her standing as a member of the media before any waiver or reduction of fees may be granted.

Generally, representatives of the news media include persons on the staff of established news media outlets, such as, but not limited to, radio or television stations, wire services, or periodicals of general circulation.

The Courts have addressed this area and have further defined the definition of "news media" as follows:

Freelance journalists may be regarded as working for the news media, even though not actually employed by the media, if they can demonstrate a solid basis for expecting publication, such as a publication contract or by demonstrating a record of past publication.

Representatives of narrowly focused publications such as house journals, trade journals, or organizational newsletters, which are not designed for ordinary circulation to the general public, are generally not considered news media for this purpose.

Information vendors, data brokers, and other second-hand disseminators of documents, such as private libraries, private repositories, or those who act as information vendors or as agents of others who want access to government documents, do not qualify as news media for fee waiver purposes.

Generally, all fees may be waived or reduced when disclosing information is likely to contribute significantly to public understanding of the operations or activities of the government and when it is not primarily in the commercial interests of the requester. See IRM 11.3.5.6.2.

A response to a FOIA search memorandum may include a statement from the function (usually CI) in control of the responsive records that all, or a portion, of the responsive records are grand jury information.

Not all records relating to a grand jury investigation are considered "grand jury information" subject to secrecy under Rule 6(e) of the Federal Rules of Criminal Procedure (FRCrP).

The following are generally considered to be grand jury information:

The following are generally not considered to be grand jury information:

If a determination is made that providing grand jury records to the Disclosure office will harm the investigation, written attestation that the records are grand jury information must be prepared by the function having control over the records (usually CI), and provided to Disclosure. Disclosure personnel will include the attestation in the FOIA case file. The attestation must contain:

The Disclosure office will advise the requester that responsive records in an approximate volume have been determined to be grand jury information and as such are being withheld pursuant to FOIA exemption (b)(3) in conjunction with grand jury secrecy provisions of Fed. R. Crim P. 6(e). The application of exemptions such as (b)(7)(A) and/or (b)(3) in conjunction with IRC §6103(e)(7) must be made where appropriate.

The office (usually a CI office) making the determination that such records are grand jury information is responsible for flagging the case file appropriately so it can be adequately analyzed by Procedure and Administration attorneys in the event of any litigation associated with the FOIA response. The office must retain the grand jury information in a way consistent with FOIA record retention requirements. The documentation described above must state that a complete copy of the withheld documents will be kept available and that the function will re-evaluate the records if the requester files an administrative appeal or judicial complaint in the FOIA matter. IRS must be able to identify any documents withheld. Therefore, it is imperative that the function clearly identify within its file which documents were withheld in response to the FOIA request, and that this identification be maintained for the life of the file. None of the withheld documents may be destroyed sooner than called for in the Records Control Schedule controlling FOIA records and case documents developed/received subsequent to the FOIA request must be distinguishable from documents withheld.

Many FOIA requests include language asking that Disclosure provide certified copies of records found responsive or asking for a certification of lack of record for those items where we have a "no records" determination.

The FOIA contains no provision requiring IRS to provide certified copies of documents. In response to a request for certification of any IRS records sought under the FOIA, the requester shall be advised that the FOIA does not require documents to be certified in response to a FOIA request. The requester shall be further advised that IRC §6103(p)(2) only requires a certified copy of a return to be furnished to any person who is authorized access to the return. Notify the requester that a certified copy of the tax return can be requested by completing a Form 4506, checking the box on line 6, enclosing the required fees, and submitting the Form to the appropriate address as shown in the instructions. A blank Form 4506 must be provided with the response.

Under no circumstances will Document 3050, Certification of Lack of Record be provided when no responsive records are found. It is sufficient to state that no records were located, without providing a certification to that effect. Notify the requester that verification of nonfiling may be obtained by submitting a Form 4506-T to the appropriate address as shown in the instructions. A blank Form 4506-T must be provided with the response.

FOIA requests for trust information (whether legitimate or abusive) may be received from a person claiming to be a trustee or other qualified IRC §6103(e) requester. Frequently, the documentation necessary to establish trustee relationship (see IRM 11.3.2.4.8) such as copies of the trust instrument are not provided. A requester's self-serving attestation of trusteeship or other status is not sufficient. Assuming that the incoming request is not imperfect for other reasons, some internal research may be done to establish identity for entitlement to access.

Ordinarily, for these types of requests, IDRS should be used to perform preliminary research.

Disclosure personnel need to be careful on these requests to ensure they don’t take a different position from the compliance function in allowing IRC §6103(e) access.

Disclosure offices frequently receive FOIA requests seeking access to documents associated with specified DLNs. Generally, these requests come in a series of letters, each asking for one or more DLNs listed on a transcript provided in response to a previous request.

Any document associated with the requested DLN is considered responsive to the request, including the Form 5147, IDRS Transaction Record. The Form 5147 is created when the underlying transaction is input, not when an ESTAB request is made.

The underlying Form 2848, Power of Attorney and Declaration of Representative, and Form 8821, Tax Information Authorization, associated with Transaction Code (TC) 960 (Centralized Authorization File) are filed separately from tax returns. The actual form must always be retrieved in response to a request seeking access to either the form by name or the documents associated with the TC 960 DLN. Depending on the wording of the request, it may also be necessary to retrieve the Form 5147. To retrieve the actual Form 2848, or Form 8821, a Source Document Locator Number (SDLN) must be obtained and a Form 2275 prepared and sent to the Kansas City Consolidated Files Site (C-Site) at the following address:
     Internal Revenue Service
     1500 South Geospace Drive, #335
     Independence, MO 64056
     Attn.: IRS-C-SITE

The following DLNs have been identified as electronic transactions having no paper or source documents. It is unnecessary to ESTAB any DLN that meets either description.

It is extremely difficult to identify those transactions that, when input, do not generate a paper document. Therefore, an ESTAB shall be requested for every DLN that does not meet the description in (4) above.

When documents are received as a result of the ESTAB, they must be reviewed, edited, and released or withheld in accordance with IRM 11.3.13.7.

The following changes apply to transaction codes (TC) input on or after February 23, 2005.

An ITIN is a nine-digit number issued by the IRS to individuals who are required to have a taxpayer identification number for tax purposes, but who do not have, and are not eligible to obtain, a social security number (SSN). The FOIA requests generally include an SSN and seek a copy of the Form W-7.

Offices receiving a FOIA request for a Form W-7 or related information shall research the ITIN database using the following command codes to determine the status of an application, and/or obtain a DLN.

Once a DLN is located, the W-7 can be retrieved using command code ESTAB. The DLN for a W-7 is identified by a File Location Code of 98 with a tax class document code of 296 (English) or 298 (Spanish).

If the requester did not provide a DOB or an ITIN, command code INOLE with a definer of S or X should be used to research the DOB. If internal research does not locate a DOB, the requester should be contacted by phone to solicit the needed information. Telephone contact should be made only if a number was provided with the request or if one is available on ENMOD. It is not necessary to do further research to locate a phone number. If we are unable to locate a DOB and no phone number is available, inform the requester that we cannot process the request until a complete name and DOB or ITIN is received. The request shall be closed off E-DIMS using an "I" disposition code. The following language can be used:

In response to a FOIA request for Form 12175, Third Party Contact Report Form, the requester shall be informed that we will neither confirm nor deny the existence of a form ("the glomar response" ) where:

FOIA exemptions (b)(3) in conjunction with IRC §6103 (e)(7), (b)(7)(A) (where applicable), and (b)(7)(C) will be asserted as the exemptions underlying the glomar response.

The Form 12175 can be provided where none of the above criteria are met.

Copies of FedState agreements are generally available to the public under the FOIA. However, those portions of implementing agreements or MOUs which contain tolerance and criteria information are to be withheld from disclosure using FOIA exemption (b)(2) and given the same protection as LEM material, as described in IRM Exhibit 1.16.8.5-2, Protectable Items, of IRM 1.16.8, Physical Security Standards.

U.S. Possession Agreements (e.g. Tax Information Agreements, Tax Coordination Agreements, and MOUs) are considered Tax Conventions within the meaning of IRC §6105 and can only be disclosed consistent with that statute. Usually these agreements will be exempt under FOIA exemption (b)(3) cited in conjunction with IRC §6105. Other FOIA exemptions, such as (b)(7)(E) may also be applicable. Any FOIA request seeking copies of these Possession agreements shall be coordinated with the Baltimore Disclosure Office.

Any response to a FOIA request for a copy of a report prepared by a state agency (including Safeguard Activity and Procedures Reports), by the IRS as a result of a review of a state agency in accordance with IRC §6103(p)(4), or by the IRS in accordance with IRC §6103(p)(5), shall be coordinated with the respective state agency. These reports often focus on sensitive processes and systems and may expose vulnerabilities. As such, the information can be protected at the request of state officials pursuant to FOIA exemption (b)(2).

FOIA requests for access to documents provided by the IRS to state tax agencies may seek records that were provided pursuant to:

The requests may also seek other records associated with our exchange of information with state agencies, for example accountings for disclosure (including requests for Form 5466-B, Multiple Record of Disclosure) and any request for IRS records made by the state agency. Many of the requests go on to ask, "if said information was disclosed on computer tape, please print said information on hard copy."

Prior to the release of any information to the requester, or confirmation that information was released, contact should be made with the agency liaison to ascertain whether release of any information not part of the Governmental Liaison Data Exchange Program (GLDEP) would impair any ongoing compliance activity. If the state representative indicates the release would harm state tax administration and can articulate that harm, the information should be withheld pursuant to FOIA exemptions (b)(7)(A) and (b)(3) in conjunction with IRC §6103(e)(7).

The release of the following information should be considered, after consideration of any response from the state agency:

In response to requests for information disclosed "on computer tape" that can be read as seeking access to information exchanged through tape extract programs, the requester must be provided with transcripts, including MFTRA, IRP documents, PATRA transcripts, and any other computerized records that include the data that would have been included on extracts covered by the request. Provide these documents using the following language:

Disclosure personnel must be aware that the IRC §6103(d) extract tapes themselves (both inquiry tapes from other agencies and response tapes generated by IRS) are not IRS agency records and are therefore not subject to the FOIA. If a requester explicitly seeks the "data from the extract" (distinct from "data provided" ) the FOIA response should state that the record requested "is not an agency record and is not subject to disclosure pursuant to the FOIA." Similarly, in any program where data requests are made and/or responded to in electronic format, the electronic requests are not IRS agency records. This is true regardless of IRS retention for brief time periods for purposes of disaster recovery or tape recreation. The electronic response is an agency record only if a copy is retained for disclosure accounting purposes under IRC §6103(p)(3).

If you receive a FOIA request for information regarding lottery winners you should use the following language:

Cases shall be closed as imperfect since the requested records are not reasonably described.

Requests may be received for access to the data contained in OCCP databases, either for general inspection or study of the data or to determine if the name of the requester, or a client of the requester, appears in the data. The information in the OCCP databases pertains to "live" credit cards.

Requests for information from the OCCP database must be transferred to the Baltimore Disclosure office for processing.

The Deputy Director, Compliance Policy, has determined that disclosure of data contained in the OCCP database would seriously impair tax administration within the meaning of IRC §6103(e)(7) and would "interfere with enforcement proceedings" within the meaning of FOIA exemption (b)(7)(A).

Based on this determination, the following requests shall be denied pursuant to FOIA exemption (b)(3) in conjunction with IRC §6103(a) and/or (e)(7) and FOIA exemption (b)(7)(A) and/or (C):

Requests from specific taxpayers for credit card data that has been placed in their individual case files must be considered on a case-by-case basis by the individual examiners in coordination with the local Disclosure Managers. Disclosure staff must work closely with the case agent and manager to ensure that any information released will not impair tax administration or violate personal privacy.

An OCCP case file may have unique considerations when processing a FOIA request.

Requests from individuals representing taxpayers before the IRS seeking access to all information regarding themselves from the CAF must be transferred to the Headquarters Office for response. A sample request is available on the FOIA page at www.irs.govby clicking on the "CAF Client Listing Request" link.

A PTIN is not return information as defined in IRC §6103(b). Neither is the Application for a Preparer Tax Identification Number, Form W-7P, a return within the meaning of IRC §6103.

A request for information about individuals who hold PTINs shall be denied citing FOIA exemption (b)(6).

The IRS has implemented Contact Recording (CR) in all toll-free sites. CR is an automated system that records interactions between the customer and telephone assistors. CR is being phased into the Call Centers, and there are plans to pilot a similar system in the Taxpayer Assistance Centers.

The taxpayer does not have Privacy Act access to any CR recordings because any voice or data capture made under CR is not retained by taxpayer identifier. Rather, it is kept under the recorded employee's unique identifier for as long as it is needed, prior to transcription and use in the evaluation and feedback process.

However, if the taxpayer makes a timely and processable FOIA request, the IRS will attempt to locate and provide the recording. The responsive document(s) will generally include the entire recording pertaining to the taxpayer’s contact with the CSR. If the recording includes an interchange between the as