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Part 11. Communications and Liaison

Chapter 3. Disclosure of Official Information

Section 35. Requests and Demands for Testimony and Production of Documents

11.3.35  Requests and Demands for Testimony and Production of Documents

11.3.35.1  (01-01-2006)
Purpose

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

11.3.35.2  (01-01-2006)
Authority

  1. Treasury Regulations 301.9000-1 through 301.9000-7 require IRS officers and employees as well as contractors to obtain prior approval before they may produce IRS records or information or testify in judicial or administrative proceedings in response to a demand (subpoena, notice of deposition, court order, etc.).

  2. Delegation Order 11-2 sets forth the IRS officials who may authorize testimony or disclosure of IRS records or information in response to certain requests and demands for such information.

  3. The scope of the authorization will be restricted in accordance with applicable disclosure laws (e.g., IRC 6103, IRC 6104, IRC 6105, IRC 6110, IRC 4424 and the Privacy Act).

11.3.35.3  (01-01-2006)
Definitions

  1. IRS records or information means any material (including copies thereof) contained in the files (including paper, electronic or other media files) of the IRS, any information relating to material contained in the files of the IRS, or any information acquired by a current or former IRS officer, or employee, or contractor, while an IRS officer, or employee, or contractor as a part of the performance of official duties or because of that IRS officer, or employee’s or contractor’s official status with respect to the administration of the internal revenue laws or any other laws administered by or concerning the IRS.

    Note:

    When a discovery request or demand for production of documents received by the Service includes any documents received from or created by the Service in response to a Joint Committee on Taxation inquiry arising from its general oversight authority, the Joint Committee will be notified of the request or demand. Any response to the discovery request or demand will be coordinated with the Joint Committee. Field Disclosure or Counsel personnel who receive requests or demands for testimony or documentary production are to contact the Chief, Disclosure in HQ or the Office of the Associate Chief Counsel (Procedure and Administration), respectively, who will coordinate with the Joint Committee.

  2. In this section, "IRS records or information" will be referred to as "IRS information. "

  3. IRS information includes, but is not limited to, returns and return information as defined in IRC 6103(b)(1) and (2), tax convention information as defined in IRC 6105, information gathered during Bank Secrecy Act and money laundering investigations, and personnel records and other information pertaining to IRS officers and employees. IRS records and information also include information received, generated or collected by an IRS contractor pursuant to the contractor's contract or agreement with the IRS.

    Note:

    The witnessing of a traffic accident while on official business would not constitute IRS information and authorization to testify with respect to the accident would not ordinarily be required. However, the identity and address of the taxpayer involved in the official business would be return information protected by IRC 6103 and would be IRS information requiring authorization, if requested.

  4. Information or documents obtained by an employee under the direction and control of the U.S. Attorney's Office in a grand jury investigation is generally not considered IRS information subject to Treasury Regulations 301.9000-1 through 301.9000-7.

    Note:

    See IRM 11.3.35.9 for procedures concerning subpoenas for grand jury information.

  5. The term "IRS records or information" includes records or information obtained during the administrative stage of a criminal investigation (prior to the initiation of the grand jury), obtained from IRS files (such as transcripts or tax returns), or subsequently obtained by the IRS for use in a civil investigation.

  6. Testimony in a grand jury investigation regarding returns obtained pursuant to IRC 6103(h)(2) constitutes IRS information.

  7. A demand is an order from any court, administrative agency or other authority, or the Congress, or a committee or subcommittee of the Congress, and any notice of deposition, and includes:

    • Subpoena;

    • Summons;

    • Notice of deposition (either upon oral examination or written questions);

    • Request for admissions;

    • Other notice of, request for, or service for discovery in a matter before any court, administrative agency or other authority;

    • Request for production of documents or things;

    • Written interrogatories to parties; and

    • Other order by a court (including a military court), administrative agency, or "other authority."

    Note:

    "Other authority" includes a grand jury and Congressional committees or subcommittees.

    Note:

    A request is any request for testimony of an IRS officer, employee or contractor for production of IRS records or information, oral or written, by any person, which is not a demand.

  8. An IRS matter is any matter before any court, administrative agency or other authority in which the United States, the Commissioner, the IRS, or any officer or employee acting in an official capacity, or any IRS officer or employee (including an officer or employee of IRS Chief Counsel's office) in his or her individual capacity if the United States Department of Justice or the IRS has agreed to represent or provide representation to the IRS officer or employee, is a party and that is directly related to official business of the IRS or to any law administered by or concerning the IRS, including, but not limited to, judicial and administrative proceedings described in IRC 6103(h)(4) and IRC 6103(l)(4).

  9. IRS officers and employees mean all officers and employees of the United States appointed by, employed by, or subject to the directions, instructions, or orders of the Commissioner or IRS Chief Counsel and includes former officers and employees.

  10. An IRS contractor means any person, including the person's current and former employees, maintaining IRS records or information pursuant to a contract or agreement with the IRS, and also includes former contractors.

  11. The field IRS Disclosure Officer should be contacted for advice by any former employee, officer or contractor who receives a request or demand to testify concerning returns and return information, or other IRS information.

    1. It would not apply to a request or demand issued to a former IRS officer or employee for expert or opinion testimony where the testimony 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. Such situations require no testimony authorization.

  12. To the extent a former officer/employee/contractor is requested or demanded to give testimony or produce documents which would be considered to be returns or return information, the former
    officer/employee/contractor is still governed by the provisions of IRC 6103.

    1. The limitations imposed by IRC 6103(a) still apply to information of which the individual had knowledge because of their relationship with the IRS.

      Note:

      The former officer/employee/contractor would be subject to the penalty provisions of IRC 7213 and IRC 7431 for unauthorized disclosures of returns and return information.

    2. Information subject to the Privacy Act would still enjoy Privacy Act protection.

    3. Classified information gained while employed would also be statutorily protected from release by the former officer/employee/contractor.

11.3.35.4  (01-01-2006)
Requests Authorized by Field Officials

  1. In Delegation Order 11-2 there are tables on testimony authorizations, which specify which judicial or administrative proceedings do or do not require testimony authorizations. In each Table, examples of the proceeding are given, and the responsible officials for both preparing and either authorizing or denying the testimony are listed.

  2. In addition, Delegation Order 11-2, includes a table 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.

  3. In general, the authorities in the tables of Delegation Order 11-2 will be used to determine whether officers or employees of the IRS working in the same geographical area as the listed authorizing official will be permitted to testify or produce IRS information subsequent to a request or demand for such records or information.

    Note:

    See IRM 11.3.35.5 for exceptions.

  4. Testimony authorization for Tax Court proceedings is covered in Table 1 of Delegation Order 11-2.

  5. 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.

11.3.35.5  (01-01-2006)
Requests Requiring Headquarters Authorization

  1. The following requests or demands for testimony or production of IRS information must be authorized by the Director, Disclosure of the Office of Governmental Liaison and Disclosure.

    1. Requests made to IRS employees assigned to a Headquarters office, including employees of the Office of the Chief Counsel assigned to Headquarters.

    2. Requests which may require a disclosure to a competent authority under a tax treaty pursuant to IRC 6103(k)(4), or information received by the IRS under a tax treaty, regardless of whether the information was previously disclosed pursuant to the treaty.

      Note:

      Authorization will be provided in these cases only after the approval of the Director, International, (LMSB) is secured.

    3. Requests made to IRS employees assigned to the Martinsburg, Tennessee, and Detroit Computing Centers.

    4. Employees appearing voluntarily or upon request before a state legislative body.

    5. Employees in Puerto Rico, Guam, the Virgin Islands, or other U.S. possession or protectorates.

    6. Those cases identified by HQ GLD that because of their particular sensitivity will be authorized at the Director, GLD or higher management level.

  2. 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:

    1. Requests made by a Congressional committee (such requests shall immediately be brought to the attention of the Office of Legislative Affairs).

    2. Requests involving disclosure to the President or certain other persons under IRC 6103(g).

    3. Requests involving disclosure to correct a misstatement of fact under IRC 6103(k)(3).

  3. These authorizations must be cleared through the Assistant Chief Counsel (Disclosure and Privacy Law).

11.3.35.6  (01-01-2006)
Procedures in IRS Matter Cases

  1. An IRS matter is defined in IRM 11.3.35.3(8).

  2. "IRS matter" is not defined in IRC 6103. These cases include, but are not limited to:

    1. Criminal tax;

    2. Refund litigation;

    3. Summons enforcement;

    4. Wrongful levies;

    5. Foreclosure of Federal tax liens;

    6. Bankruptcies;

    7. Actions affecting personnel rights of employees or former employees of the IRS;

    8. Federal tort claims litigation; and

    9. Freedom of Information and Privacy Act litigation.

  3. No authorization is needed when testimony or production of records is requested by Government counsel representing the IRS in an IRS matter.

  4. 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. Counsel is responsible for preparing the proposed authorization and submitting it for approval. 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.

  5. General Counsel Order No. 4 delegates to Chief Counsel the authority to determine whether to permit testimony and production of records in response to a Tax Court subpoena.

  6. Chief Counsel has redelegated authority to determine whether to permit testimony and production of records in response to a Tax Court subpoena to Area Counsel.

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

  8. No testimony authorization is needed to respond to a request or demand issued to a former IRS officer, employee or contractor for expert or opinion testimony if the testimony sought from the former IRS officer, employee or contractor 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.

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

    • Treasury Regulation 601.702(d);

    • Freedom of Information Act requests pursuant to 5 USC 552;

    • disclosures to state tax agencies pursuant to IRC section 6103(d); and

    • disclosures to the Department of Justice pursuant to an ex parte order pursuant to IRC section 6103(i)(1).

11.3.35.7  (01-01-2006)
Procedures in Non-IRS Matters

  1. Field Disclosure Officers are responsible for preparing authorizations for the signature of GLD Area Managers in all cases (except for those involving Bank Secrecy Act information in Delegation Order 11-2, Table 6) other than IRS matters. Non-IRS matters are matters not otherwise defined as IRS matters or congressional requests/demands.

  2. The Headquarters office of Governmental Liaison and Disclosure (GLD) is responsible for preparing authorizations for the signature of the Director, Disclosure or Director, GLD and for the Commissioner and the appropriate Deputy Commissioner. See Delegation Order 11-2.

  3. These authorizations must be reviewed by Counsel prior to submission to the appropriate official for signature.

11.3.35.8  (01-01-2006)
Responsibilities of IRS Personnel

  1. Disclosure personnel will issue written instructions advising all employees to immediately transmit most requests or demands for testimony or production of IRS information to their Disclosure Office along with pertinent facts and background. Such transmittals would not apply to 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, Federal Tort Claims Act matters, or matters related to informant claims and requests.

  2. A request or demand from a party other than the government in IRS related matters should be transmitted immediately to the appropriate Office of Chief Counsel.

    Example:

    An IRS officer or employee, former officer or employee, or contractor who receives a request or demand, on behalf of an appellant, grievant, complainant or representative, for IRS records or information in personnel, labor relations, government contract, Bivens, FTCA matters, or matters related to informant claims, shall promptly notify the IRS Associate Chief Counsel (General Legal Services) attorney assigned to the case. If no IRS Associate Chief Counsel (General Legal Services) attorney is assigned to the case, the IRS officer, employee or contractor shall notify the IRS Associate Chief Counsel (General Legal Services) attorney assigned to servicing their geographic area. Such IRS Associate Chief Counsel (General Legal Services) attorney shall promptly notify the authorizing official. The IRS officer, employee or contractor who received such request or demand shall await instructions from the authorizing official.

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

    1. The need for immediate notification cannot be overemphasized. By failing to take proper steps in the processing of demands for testimony or production of IRS information, employees may subject themselves and the IRS to sanctions such as contempt of court citations.

    2. The request or demand and pertinent facts may be transmitted by telephone or fax when there is insufficient time for formal transmittal and mailing.

  4. Employees whose testimony is requested/subpoenaed and Disclosure personnel at offices having jurisdiction over requested/subpoenaed IRS information are responsible for gathering and reporting the necessary facts on which a proper authorization may be based.

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

  6. Pertinent information will be recorded on Form 6339, Testimony Report, (see IRM Exhibit 11.3.35-1) or on a management approved Form containing substantially the same information as Form 6339.

  7. In cases involving employees or documents under the jurisdiction of more than one office, Disclosure personnel in the involved offices shall coordinate the response.

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

    Note:

    It may be necessary to obtain more than one authorization (i.e., an authorization for the employee(s) and an authorization for the documents). Disclosure personnel in the involved offices should coordinate activities to minimize the impact on the employees and on the IRS.

  9. Disclosure personnel, with the assistance of Disclosure functional coordinators or employees in the affected offices, are also responsible for coordinating the following actions in connection with the processing of testimony cases:

    • locating and assembling requested/demanded documents;

    • screening records requested/demanded and segregating or disassociating documents which are not authorized to be disclosed;

    • arranging for inspection, or transmittal of records; and

    • arranging for Counsel to assist or an attorney of the Department of Justice (including U.S. Attorneys) to represent the requested/subpoenaed employee.

  10. Disclosure personnel may seek technical assistance from the Headquarters Office of Governmental Liaison and Disclosure, if necessary.

  11. Disclosure personnel will maintain a file for testimony and production requests which indicates the action taken through testimony and production of records.

    1. The closed case files shall contain Form 6339 or equivalent, and will include the following:

      • a description of what the requested/subpoenaed employee testified to and produced in the judicial or administrative proceeding;

      • if necessary, Form 5466-B, Multiple Records of Disclosure, and Form 5482, Record of Disclosure (Privacy Act of 1974), as appropriate, should be completed to account for the disclosure; and

        Note:

        A copy of the appropriate Form, or reference to its preparation, should also be included in the file.

      • complete audit trails to document all considerations and actions taken on a request including, but not limited to, disclosure and privacy aspects considered, communications made, conclusions made and agreements reached.

11.3.35.8.1  (01-01-2006)
Processing Requests for Personnel and Payroll Records

  1. Requests and demands for testimony and/or production of personnel and payroll records in private litigation or administrative proceedings will be coordinated by the Disclosure Officer with the Transactional Processing Center (TPC) which has responsibility for the records.

  2. The Disclosure Officer will maintain close contact with the TPC to ensure that the information is received in sufficient time to comply with the date and time frames specified in the request, subpoena, etc.

  3. Office of Personnel Management (OPM) has adopted a regulation for OPM records which is outlined in FPM Bulletin 297-8, dated December 28, 1992. IRS has adopted the OPM regulation for all IRS personnel records as well as all other IRS records subject to the Privacy Act.

  4. The OPM regulation requires that subpoenas for personnel records must be approved by a judge or magistrate of a court of competent jurisdiction in order to meet the court order exception in the Privacy Act (5 USC § 552a(b)(ii)). Subpoenas for documents under OPM's jurisdiction (Official Personnel Files (OPFs) of retired, deceased, or separated employees, whose OPF has been transferred back to OPM) are handled by OPM and should be addressed to:

         The Office of General Counsel
         Office of Personnel Management
         1900 E Street, NW
         Washington, DC 20415

  5. 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.

  6. Before rejecting a subpoena for personnel records signed by an attorney or clerk of the court, Disclosure personnel should advise the requester who caused the subpoena to be issued of the OPM and Privacy Act requirements.

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

    Example:

    The routine use in System 36.003 that provides for the disclosure of information pertaining to a possible violation of law to an agency with the responsibility for prosecuting such a violation would cover the disclosure of payroll data in a state prosecution of an employee involving fraud. If the disclosure is made subject to a routine use, the accounting on Form 5482 would reflect a (b)(3) disclosure.

  8. Disclosure personnel should offer the requester an option of withdrawing the subpoena and/or obtaining written permission from the subject of the personnel record in order to meet the confidentiality requirements of the Privacy Act.

    Note:

    No accounting is required for the Disclosure of personnel records under written request of the employee.

  9. The authority to disclose personnel records pursuant to the written permission of the employee lies with the appropriate TPC. Disclosure personnel should remain available to give advice concerning disclosure of personnel records. 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.

  10. 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 11.3.37.17.

11.3.35.9  (01-01-2006)
Grand Jury Data

  1. Disclosure of information or documents obtained by an employee while under the direction and control of the U.S. Attorney's Office in a Federal grand jury investigation does not require testimony authorization pursuant to Treasury Regulation 301.9000-3. See (3) below. Rather, authorization in these instances comes from the Department of Justice.

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

  3. Disclosure personnel should be aware, however, that testimony regarding information obtained during the administrative stage of an investigation (prior to the initiation of the grand jury) may require testimony authorization. See Treasury Regulation 301.9000-1(a).

  4. Testimony with regard to tax information provided pursuant to IRC 6103(h)(2) in a grand jury investigation would require authorization pursuant to Treasury Regulation 301.9000-3 if subpoenaed by a defendant. However, see Treasury Regulation 301.9000-3(b)(2) for exceptions related to admissions, document production, and written interrogatories.

  5. If a defendant's subpoena covers any IRS information as defined in IRM 11.3.35.3(1), and authorization is required by Treasury Regulation 301.9000-3, the Assistant U.S. Attorney or other appropriate Department of Justice (DOJ) official must review a decision whether to permit testimony.

  6. 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.

11.3.35.10  (01-01-2006)
Written Statement Required for Requests or Demands in Non-IRS Matters - Treasury Regulation 301.9000-5

  1. A request or demand for IRS records or 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 records of information, setting forth:

    1. A brief description of the parties to and subject matter of the proceeding and the issues.

    2. A summary of the testimony, records or information sought, the relevance to the proceeding, and the estimated volume of IRS records involved.

    3. The time that will be required to present the testimony (on both direct and cross examination).

    4. Whether any of the IRS records or information is a return or is return information (as defined in IRC 6103(b) or IRC 6105 tax convention information), and the statutory authority for the disclosure of such return or return information (and, if no consent to disclose pursuant to IRC 6103(c) accompanies the request or demand, the reason such consent is not necessary).

    5. Whether a declaration of an IRS officer, employee or contractor under penalties of perjury pursuant to 28 USC 1746 would suffice in lieu of deposition or trial testimony.

    6. Whether deposition or trial testimony is necessary in a situation in which IRS records may be authenticated under applicable rules of evidence and procedure.

    7. Whether IRS records or information are available from other sources.

    8. A statement that the request or demand allows a reasonable time (generally, at least fifteen business days) for compliance.

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

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

11.3.35.11  (01-01-2006)
Recommending and Preparing Testimony and Production Authorizations

  1. 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.

  2. 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.

  3. The Disclosure Office and Counsel are responsible for providing the Commissioner's authorizing official (see Delegation Order 11-2) with the pertinent facts necessary to make such determination.

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

    1. If testimony or disclosure of IRS information would violate a Federal statute including, but not limited to:

      • IRC 6103 or IRC 6105,

      • Privacy Act,

      • Regulations such as 31 CFR 103.43,

      • Re-Dissemination Guidelines covering reports, and information derived from, under the Bank Secrecy Act,

      • Grand Jury Secrecy (Federal Rules of Criminal Procedure 6(e)).

    2. Testimony or disclosure of IRS records or information would reveal classified national security information, unless properly declassified.

    3. Whether the disclosure is appropriate or relevant to the case under the rules of procedure governing the case or matter in which the subpoena arose.

    4. The availability or feasibility of producing the information or testimony sought (i.e., time limits and volume or format of documents).

    5. Whether testimony or disclosure of IRS information would reveal investigatory records or information compiled for law enforcement purposes which would permit interference with law enforcement proceedings or would disclose investigative techniques and procedures, the effectiveness of which could thereby be impaired.

    6. Whether disclosure might tend to reveal unrelated third party tax information or the identity of a confidential informant.

  5. Applicability of the above factors is usually evident from the information gathered in accordance with IRM 11.3.35.8 and IRM 11.3.35.10, and will serve as a basis for including specific limiting language in the proposed testimony and production authorization.

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

    • Attorney-client privilege.

    • Attorney work product doctrine.

    • Deliberative process (executive) privilege.

  7. The authorization prepared for the appropriate approving official should, to the extent applicable, be specific as to:

    • Names and locations;

    • Court appearance date;

    • Tax periods;

    • Classes of tax or types of returns;

    • Specify the extent and limitations on disclosure;

    • The operative facts upon which the authorization is premised (i.e., a description of the testimony and production sought, and the nature of the testimony and production authorized).

  8. 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.

    Note:

    In all cases, a written authorization should be executed, forwarded to the employee, and included in the testimony file. However, in time-sensitive situations, the authorization may be given orally by the authorizing official. This fact will be documented in the testimony file.

  9. 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 government.

  10. Normally, IRS resources should not be expended in private litigation. The field Disclosure Officer should offer alternate sources or methods of obtaining the requested data (e.g., routine uses of Privacy Act System of Records, Forms 4506 or 4506-T, 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 should take into account the following additional factors in responding to such request or demand:

    • Whether the requester is a Federal agency, or a state or local government or agency.

    • Whether the demand was issued by a Federal or state court, administrative agency or other authority.

    • Where IRS is not a party, has IRS already been involved in some capacity (e.g., making disclosures under a Privacy Act routine use or providing documents/information in a Federal nontax criminal matter under IRC 6103(i)).

    • The potential effect of the case on the administration of the internal revenue laws or any other laws administered by or concerning the IRS.

    • The importance of the legal issues presented.

    • Whether the IRS records or information are available from other sources.

    • The IRS's anticipated commitment of time and anticipated expenditure of funds necessary to comply with the request or demand.

    • The number of similar requests and their cumulative effect on the expenditure of IRS resources.

    • Whether the request or demand allows a reasonable time for compliance (generally, at least fifteen business days).

    • Whether the testimony or disclosure is appropriate under the rules of procedure governing the case or matter in which the request or demand arises.

    • Whether the request or demand involves expert witness testimony.

    • Whether the request or demand is for the testimony of an IRS officer, employee or contractor who is without personal knowledge of relevant facts.

    • Whether the request or demand is for the testimony of a presidential appointee or senior executive and whether the testimony of a lower-level official would suffice.

    • Whether the procedures of Treasury Regulation 301.9000-5 have been followed.

    • Any other relevant factors that may be brought to the attention of the authorizing official.

  11. As such, 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 field Disclosure Officer will coordinate such determinations of IRS interest with Counsel and the involved function(s).

  12. However, when a determination is made that it is not in the IRS's interest to provide testimony, the appropriate actions should be taken by the field Disclosure staff (to request the order to be withdrawn, to offer alternate information, etc.) or by the 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).

11.3.35.12  (01-01-2006)
Testimony Considerations

  1. The key to handling testimony cases is obtaining timely and accurate information.

    Note:

    This point cannot be overemphasized.

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

    • verify receipt of the subpoena;

    • determine additional background and scope of the subpoena; (see IRM 11.3.35.10)

    • verify the time frame for the appearance/production; and

    • explain any disclosure complications.

      Example:

      Written authorization may be required for some IRC 6103 disclosures.

      Example:

      An ex parte court order or other written request under IRC 6103(i) is necessary prior to testimony pursuant to IRC 6103(i)(4).

      Example:

      A subpoena for personnel records requires close analysis by Disclosure personnel in order to determine whether a routine use disclosure or the Privacy Act (b)(11) court order exception applies.

      Note:

      This call must be documented in the E-DIMS Case History Notes.

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

  4. 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 testimony file and in the E-DIMS Case History Notes. Disclosure personnel should send a letter confirming the withdrawal to the requester.

  5. If the authorization to testify is denied, and the requester refuses to withdraw, the employee must be given written confirmation of the denial by the authorizing official. 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.

    Note:

    See IRM 11.3.35.13(3).

  6. 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 will 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. Upon being confronted with this situation, it is possible that the requester may seek a postponement, withdraw the subpoena, or require the employee to appear nevertheless.

  7. Another manner in which appearance of an IRS employee at trial may be minimized is through the use of certified documents. Offer the requester certified documents 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.

    Note:

    See IRM 11.3.6, Seals and Certifications.

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

    • suggest that the requester withdraw a subpoena for returns; and

    • send a Form 4506, Request for Copy of Tax Return, to the appropriate Campus with a check in the box on the Form which requests a certified copy for court purposes.

      Note:

      RAIVS only provides ink stamp certifications

  9. When information is provided pursuant to the subpoena, a note to this effect should be included in the testimony file and in the E-DIMS Case History Notes. Disclosure personnel may also send a letter to the requester explaining this action.

    Note:

    Responding to a request or demand for documents protected under the confidentiality statutes requires a testimony authorization, even though the release is done with the owner's consent (e.g. IRC 6103(c) consent for tax records). However, no authorization is needed if it is made clear to the requester that the release is made pursuant only to the consent and that the IRS considers the demand/request withdrawn.

  10. 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 one or at least fewer employees may appear.

    Note:

    If a request/subpoena is known to be served on more than one IRS office for the same documents, by the same requester, then the subpoenas should be grouped and worked in one office, to be consistent in response.

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

  12. Returns and taxpayer return information initially provided under an (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.

    1. Return information other than returns and taxpayer return information, initially provided under an (i) order request, may be disclosed in the proceeding pursuant to IRC 6103(i)(4)(B) without a finding or an order.

    2. An IRS employee may testify as to already disclosed (i) records and their meaning, but may not make additional disclosures in such testimony.

    3. A written testimony authorization may be required, depending on whether the testimony is in conjunction with an IRS case and who is requesting the testimony. The employee's testimony is limited to the disclosures already made under the (i) order request. The testimony is limited to that which has already been disclosed. However, see Treasury Regulation 301.6103(c)-1 for disclosure consents made in open court.

    4. Caution dictates that if nonwritten authorization is needed, at least written advice in the same form as a testimony authorization should be provided to the employee as to the limitations of the permitted testimony. If there is no assigned Counsel attorney, the field Disclosure Officer should prepare the written advice.

11.3.35.13  (01-01-2006)
Disclosure Caveats

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

    • information which may tend to identify a confidential informant;

    • unrelated third party tax information;

    • wagering tax information as defined in IRC 4424;

    • tax treaty (convention ) information; or

    • secret grand jury information.

    Note:

    In such instances, if a problem develops, assistance should be sought through Disclosure and Counsel channels.

  2. An IRS employee faced with a court order to testify or produce documents prior to receiving testimony and 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 he/she has received authorization to so testify or produce IRS information and that he/she is awaiting authorization. To the extent necessary, Disclosure or Counsel personnel or Government counsel (usually an Assistant U.S. Attorney) should accompany the employee to explain the situation.

  3. An IRS employee faced with a court order to testify or produce documents with respect to information which is not authorized to be disclosed by the testimony and production authorization should respectfully decline to testify or produce documents with respect to matters not authorized to be disclosed. 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 Counsel personnel, or Government counsel (usually an Assistant U.S. Attorney) should accompany the employee to explain the situation to the court.

  4. In nontax 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