Testimony or Production of Records in a Court or Other Proceeding, 7396-7401 [05-2816]
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Federal Register / Vol. 70, No. 29 / Monday, February 14, 2005 / Rules and Regulations
2. Section 173.300 is amended by
revising paragraphs (a) and (b) to read as
follows:
I
§ 173.300
Chlorine dioxide.
*
*
*
*
*
(a)(1) The additive is generated by one
of the following methods:
(i) Treating an aqueous solution of
sodium chlorite with either chlorine gas
or a mixture of sodium hypochlorite and
hydrochloric acid.
(ii) Treating an aqueous solution of
sodium chlorate with hydrogen
peroxide in the presence of sulfuric
acid.
(iii) Treating an aqueous solution of
sodium chlorite by electrolysis.
(2) The generator effluent contains at
least 90 percent (by weight) of chlorine
dioxide with respect to all chlorine
species as determined by Method 4500–
ClO2 E in the ‘‘Standard Methods for the
Examination of Water and Wastewater,’’
20th ed., 1998, or an equivalent method.
Method 4500–ClO2 E (‘‘Amperometric
Method II’’) is incorporated by reference
in accordance with 5 U.S.C. 552(a) and
1 CFR part 51. You may obtain a copy
from the Center for Food Safety and
Applied Nutrition (HFS–200), Food and
Drug Administration, 5100 Paint Branch
Pkwy., College Park, MD 20740, or the
American Public Health Association,
800 I St. NW., Washington, DC 20001–
3750. You may inspect a copy at the
Center for Food Safety and Applied
Nutrition’s Library, 5100 Paint Branch
Pkwy., College Park, MD, or at the
National Archives and Records
Administration (NARA). For
information on the availability of this
material at NARA, call 202–741–6030,
or go to: https://www.archives.gov/
federal_register/
code_of_federal_regulations/
ibr_locations.html.
(b)(1) The additive may be used as an
antimicrobial agent in water used in
poultry processing in an amount not to
exceed 3 parts per million (ppm)
residual chlorine dioxide as determined
by Method 4500–ClO2 E, referenced in
paragraph (a)(2) of this section, or an
equivalent method.
(2) The additive may be used as an
antimicrobial agent in water used to
wash fruits and vegetables that are not
raw agricultural commodities in an
amount not to exceed 3 ppm residual
chlorine dioxide as determined by
Method 4500–ClO2 E, referenced in
paragraph (a)(2) of this section, or an
equivalent method. Treatment of the
fruits and vegetables with chlorine
dioxide shall be followed by a potable
water rinse or by blanching, cooking, or
canning.
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Dated: January 28, 2005.
Leslye M. Fraser,
Director, Office of Regulations and Policy,
Center for Food Safety and Applied Nutrition.
[FR Doc. 05–2808 Filed 2–11–05; 8:45 am]
BILLING CODE 4160–01–S
DEPARTMENT OF THE TREASURY
Internal Revenue Service
26 CFR Parts 301 and 602
[TD 9178]
RIN 1545–BB15
Testimony or Production of Records in
a Court or Other Proceeding
Internal Revenue Service (IRS),
Treasury.
ACTION: Final regulation.
AGENCY:
SUMMARY: This document contains final
regulations replacing the existing
regulation that establishes the
procedures to be followed by IRS
officers and employees upon receipt of
a request or demand for disclosure of
IRS records or information. The purpose
of the final regulations is to provide
specific instructions and to clarify the
circumstances under which more
specific procedures take precedence.
The final regulations extend the
application of the regulation to former
IRS officers and employees as well as to
persons who are or were under contract
to the IRS. The final regulations affect
current and former IRS officers,
employees and contractors, and persons
who make requests or demands for
disclosure.
Effective Date: These regulations
are effective February 14, 2005.
Applicability Date: For dates of
applicability, see § 301.9000–7.
FOR FURTHER INFORMATION CONTACT:
Scott E. Powers, (202) 622–4580 (not a
toll free number).
SUPPLEMENTARY INFORMATION:
DATES:
Paperwork Reduction Act
The collections of information
contained in these final regulations have
been submitted to the Office of
Management and Budget for review in
accordance with the Paperwork
Reduction Act of 1995 (44 U.S.C.
3507(d)) under control number 1545–
1850.
The collections of information are in
§ 301.9000–5. This information is
required to enable the IRS to provide
authorizing officials with a better
informed basis upon which to
determine whether to grant, deny, or
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limit testimony or the disclosure of IRS
records or information so as to conserve
agency resources.
An agency may not conduct or
sponsor, and a person is not required to
respond to, a collection of information
unless it displays a valid control
number assigned by the Office of
Management and Budget.
The burden reflected in the notice of
proposed rulemaking (REG–140930–02)
relating to the procedures for IRS
officers and employees to follow upon
receipt of a request or demand for
disclosure of IRS records or information
was published in the Federal Register
(68 FR 40850). Comments concerning
the accuracy of this burden estimate and
suggestions for reducing this burden
should be sent to the Internal Revenue
Service, Attn: IRS Reports Clearance
Officer, SE:W:CAR:MP:T:T:SP,
Washington, DC 20224, and to the
Office of Management and Budget, Attn:
Desk Officer for the Department of the
Treasury, Office of Information and
Regulatory Affairs, Washington, DC
20503.
Books or records relating to a
collection of information must be
retained as long as their contents may
become material in the administration
of any internal revenue law. Generally,
tax returns and tax return information
are confidential, as required by section
6103 of the Internal Revenue Code.
Background
This document contains amendments
to 26 CFR part 301 under 5 U.S.C. 301
and 26 CFR part 602. On July 9, 2003,
a notice of proposed rulemaking (REG–
140930–02) relating to the procedures
for IRS officers and employees to follow
upon receipt of a request or demand for
disclosure of IRS records or information
was published in the Federal Register
(68 FR 40850). No comments were
received from the public in response to
the notice of proposed rulemaking. No
public hearing was requested or held.
The proposed regulations are adopted as
amended by this Treasury decision.
With the exception of changes that are
grammatical in nature, the revisions are
discussed below.
Summary of Comments and
Explanation of Revisions
The regulations have been clarified by
the addition of an example illustrating
a situation in which testimony
authorization is required. In addition,
text and examples have been added to
illustrate that even though testimony
authorization may not be required, any
disclosure of IRS records and
information must be proper under the
applicable substantive law. For
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example, any disclosure of returns and
return information must comply with
section 6103, and any disclosure of tax
convention information must comply
with section 6105 and be coordinated
with the United States Competent
Authority.
Special Analyses
It has been determined that this
Treasury decision is not a significant
regulatory action as defined in
Executive Order 12866. Therefore, a
regulatory assessment is not required. It
has been determined that 5 U.S.C.
553(b), the Administrative Procedure
Act, does not apply to these final
regulations.
It is hereby certified that the
collection of information in these final
regulations will not have a significant
economic impact on a substantial
number of small entities. This
certification is based upon the fact that
of the estimated 1,400 requests received
annually, less than 500 of those requests
are estimated to be received from small
entities. Moreover, the burden
associated with complying with the
collection of information in these
regulations is estimated to be only 1
hour per respondent. Therefore, a
Regulatory Flexibility Analysis under
the Regulatory Flexibility Act (5 U.S.C.
chapter 6) is not required.
Pursuant to section 7805(f) of the
Internal Revenue Code, the notice of
proposed rulemaking preceding this
regulation was submitted to the Chief
Counsel for Advocacy of the Small
Business Administration for comment
on its impact on small business.
Drafting Information
The principal authors of this final
regulation are David Fish and Scott E.
Powers, Associate Chief Counsel
(Procedure & Administration),
Disclosure & Privacy Law Division.
List of Subjects
26 CFR Part 301
Employment taxes, Estate taxes,
Excise taxes, Gift taxes, Income taxes,
Penalties, Reporting and recordkeeping
requirements.
26 CFR Part 602
Reporting and recordkeeping
requirements.
Adoption of Amendments to the
Regulations
Accordingly, 26 CFR parts 301 and 602
are amended as follows:
I
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PART 301—PROCEDURE AND
ADMINISTRATION
Paragraph 1. The authority citation for
Part 301 is amended by adding the
following entries in numerical order to
read in part as follows:
I
Authority: 26 U.S.C. 7805 * * *
Section 301.9000–1 also issued under 5
U.S.C. 301 and 26 U.S.C. 6103(q) and 7804;
Section 301.9000–2 also issued under 5
U.S.C. 301 and 26 U.S.C. 6103(q) and 7804;
Section 301.9000–3 also issued under 5
U.S.C. 301 and 26 U.S.C. 6103(q) and 7804;
Section 301.9000–4 also issued under 5
U.S.C. 301 and 26 U.S.C. 6103(q) and 7804;
Section 301.9000–5 also issued under 5
U.S.C. 301 and 26 U.S.C. 6103(q) and 7804;
Section 301.9000–6 also issued under 5
U.S.C. 301 and 26 U.S.C. 6103(q) and 7804;
* * *
I Par. 2. Section 301.9000–1 is revised
and §§ 301.9000–2 through 301.9000–7
are added to read as follows:
§ 301.9000–1 Definitions when used in
§§ 301.9000–1 through 301.9000–6.
(a) IRS records or information means
any material (including copies thereof)
contained in the files (including paper,
electronic or other media files) of the
Internal Revenue Service (IRS), any
information relating to material
contained in the files of the IRS, or any
information acquired by an IRS officer
or employee, while an IRS officer or
employee, as a part of the performance
of official duties or because of that IRS
officer’s or employee’s official status
with respect to the administration of the
internal revenue laws or any other laws
administered by or concerning the IRS.
IRS records or information includes, but
is not limited to, returns and return
information as those terms are defined
in section 6103(b)(1) and (2) of the
Internal Revenue Code (Code), tax
convention information as defined in
section 6105 of the Code, 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 includes information received,
generated or collected by an IRS
contractor pursuant to the contractor’s
contract or 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 the
United States Attorney’s Office. The
term IRS records or information
nevertheless does include records or
information obtained by the IRS before,
during, or after a Federal grand jury
investigation if the records or
information are obtained—
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7397
(1) At the administrative stage of a
criminal investigation (prior to the
initiation of the grand jury);
(2) From IRS files (such as transcripts
or tax returns); or
(3) For use in a subsequent civil
investigation.
(b) IRS officers and employees means
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 also includes former
officers and employees.
(c) 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.
(d) A request is any request for
testimony of an IRS officer, employee or
contractor or for production of IRS
records or information, oral or written,
by any person, which is not a demand.
(e) A demand is any subpoena or
other order of any court, administrative
agency or other authority, or the
Congress, or a committee or
subcommittee of the Congress, and any
notice of deposition (either upon oral
examination or written questions),
request for admissions, request for
production of documents or things,
written interrogatories to parties, or
other notice of, request for, or service for
discovery in a matter before any court,
administrative agency or other
authority.
(f) 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 IRS officer or employee acting in an
official capacity, or any IRS officer or
employee (including an officer or
employee of IRS Office of Chief
Counsel) 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 section 6103(h)(4) and
(l)(4) of the Internal Revenue Code.
(g) An IRS congressional matter is any
matter before the Congress, or a
committee or subcommittee of the
Congress, that is related to the
administration of the internal revenue
laws or any other laws administered by
or concerning the IRS, or to IRS records
or information.
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(h) A non-IRS matter is any matter
that is not an IRS matter or an IRS
congressional matter.
(i) A testimony authorization is a
written instruction or oral instruction
memorialized in writing within a
reasonable period by an authorizing
official that sets forth the scope of and
limitations on proposed testimony and/
or disclosure of IRS records or
information issued in response to a
request or demand for IRS records or
information. A testimony authorization
may grant or deny authorization to
testify or disclose IRS records or
information and may make an
authorization effective only upon the
occurrence of a precedent condition,
such as the receipt of a consent
complying with the provisions of
section 6103(c) of the Internal Revenue
Code. To authorize testimony means to
issue the instruction described in this
paragraph (i).
(j) An authorizing official is a person
with delegated authority to authorize
testimony and the disclosure of IRS
records or information.
§ 301.9000–2 Considerations in
responding to a request or demand for IRS
records or information.
(a) Situations in which disclosure
shall not be authorized. Authorizing
officials shall not permit testimony or
disclosure of IRS records or information
in response to requests or demands if
testimony or disclosure of IRS records
or information would—
(1) Violate a Federal statute including,
but not limited to, sections 6103 or 6105
of the Internal Revenue Code (Code), the
Privacy Act of 1974 (5 U.S.C. 552a), or
a rule of procedure, such as the grand
jury secrecy rule, Fed. R. Crim. P. 6(e);
(2) Violate a specific Federal
regulation, including, but not limited to,
31 CFR 103.53;
(3) Reveal classified national security
information, unless properly
declassified;
(4) Reveal the identity of an
informant; or
(5) Reveal investigatory records or
information compiled for law
enforcement purposes that would
permit interference with law
enforcement proceedings or would
disclose investigative techniques and
procedures, the effectiveness of which
could thereby be impaired.
(b) Assertion of privileges. 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—
(1) Attorney-client privilege;
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(2) Attorney work product doctrine;
and
(3) Deliberative process (executive)
privilege.
(c) Non-IRS matters. If any person
makes a request or demand for IRS
records or information in connection
with a non-IRS matter, authorizing
officials shall take into account the
following additional factors in
responding to the request or demand—
(1) Whether the requester is a Federal
agency, or a state or local government or
agency thereof;
(2) Whether the demand was issued
by a Federal or state court,
administrative agency or other
authority;
(3) The potential effect of the case on
the administration of the internal
revenue laws or any other laws
administered by or concerning the IRS;
(4) The importance of the legal issues
presented;
(5) Whether the IRS records or
information are available from other
sources;
(6) The IRS’s anticipated commitment
of time and anticipated expenditure of
funds necessary to comply with the
request or demand;
(7) The number of similar requests
and their cumulative effect on the
expenditure of IRS resources;
(8) Whether the request or demand
allows a reasonable time for compliance
(generally, at least fifteen business
days);
(9) Whether the testimony or
disclosure is appropriate under the rules
of procedure governing the case or
matter in which the request or demand
arises;
(10) Whether the request or demand
involves expert witness testimony;
(11) Whether the request or demand is
for the testimony of an IRS officer,
employee or contractor who is without
personal knowledge of relevant facts;
(12) 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;
(13) Whether the procedures in
§ 301.9000–5 have been followed; and
(14) Any other relevant factors that
may be brought to the attention of the
authorizing official.
§ 301.9000–3
Testimony authorizations.
(a) Prohibition on disclosure of IRS
records or information without
testimony authorization. Except as
provided in paragraph (b) of this
section, when a request or demand for
IRS records or information is made, no
IRS officer, employee or contractor shall
testify or disclose IRS records or
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information to any court, administrative
agency or other authority, or to the
Congress, or to a committee or
subcommittee of the Congress without a
testimony authorization. However, an
IRS officer, employee or contractor may
appear in person to advise that he or she
is awaiting instructions from an
authorizing official with respect to the
request or demand.
(b) Exceptions. No testimony
authorization is required in the
following circumstances—
(1) To respond to a request or demand
for IRS records or information by the
attorney or other government
representative representing the IRS in a
particular IRS matter;
(2) 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;
(3) 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; or
(4) 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, those relating to:
procedures pursuant to § 601.702(d) of
this chapter; Freedom of Information
Act requests pursuant to 5 U.S.C. 552;
Privacy Act of 1974 requests pursuant to
5 U.S.C. 552a; disclosures to state tax
agencies pursuant to section 6103(d) of
the Internal Revenue Code (Code); and
disclosures to the United States
Department of Justice pursuant to an ex
parte order under section 6103(i)(1) of
the Code.
(c) Disclosures of IRS records or
information with or without testimony
authorization must be permitted under
other applicable law. Any disclosure of
IRS records or information that is
otherwise permissible under this section
must not be prohibited under applicable
law. For example, in a case in which
returns and return information may be
disclosed, the disclosure must be
authorized under section 6103, even if
any required testimony authorization is
obtained. If tax convention information
(as defined under section 6105) may be
disclosed, in deciding whether the
disclosure is authorized, the authorizing
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official must coordinate the disclosure
with the U.S. Competent Authority.
§ 301.9000–4 Procedure in the event of a
request or demand for IRS records or
information.
(a) Purpose and scope. This section
prescribes procedures to be followed by
IRS officers, employees and contractors
upon receipt of a request or demand in
matters in which a testimony
authorization is or may be required.
(b) Notification of the Disclosure
Officer. Except as provided in
paragraphs (c), (d), and (e) of this
section, an IRS officer, employee or
contractor who receives a request or
demand for IRS records or information
for which a testimony authorization is
or may be required shall notify
promptly the disclosure officer servicing
the IRS officer’s, employee’s or
contractor’s geographic area. The IRS
officer, employee or contractor shall
await instructions from the authorizing
official concerning the response to the
request or demand. An IRS officer,
employee, or contractor who receives a
request or demand in one of the
following matters should not notify the
disclosure officer, but should follow the
instructions in paragraph (c), (d), or (e)
of this section, as applicable:
(1) United States Tax Court cases.
(2) Personnel matters, labor relations
matters, government contract matters,
matters related to informant claims or
matters related to the rules of Bivens v.
Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971)
(Bivens matters), or matters under the
Federal Tort Claims Act (FTCA).
(3) IRS congressional matters.
(c) Requests or demands in United
States Tax Court cases. An IRS officer,
employee or contractor who receives a
request or demand for IRS records or
information on behalf of a petitioner in
a United States Tax Court case shall
notify promptly the IRS Office of Chief
Counsel attorney assigned to the case.
The IRS Office of Chief Counsel attorney
shall notify promptly the authorizing
official. The IRS officer, employee or
contractor who received the request or
demand shall await instructions from
the authorizing official.
(d) Requests or demands in personnel,
labor relations, government contract,
Bivens or FTCA matters, or matters
related to informant claims. An IRS
officer, employee or contractor who
receives a request or demand, on behalf
of an appellant, grievant, complainant
or representative, for IRS records or
information in a personnel, labor
relations, government contract, Bivens
or FTCA matter, or matter related to
informant claims, shall notify promptly
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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 promptly the IRS Associate Chief
Counsel (General Legal Services)
attorney servicing the geographic area.
The IRS Associate Chief Counsel
(General Legal Services) attorney shall
notify promptly the authorizing official.
The IRS officer, employee or contractor
who received the request or demand
shall await instructions from the
authorizing official.
(e) Requests or demands in IRS
congressional matters. An IRS officer,
employee or contractor who receives a
request or demand in an IRS
congressional matter shall notify
promptly the IRS Office of Legislative
Affairs. The IRS officer, employee or
contractor who received the request or
demand shall await instructions from
the authorizing official.
(f) Opposition to a demand for IRS
records or information in IRS and nonIRS matters. If, in response to a demand
for IRS records or information, an
authorizing official has not had a
sufficient opportunity to issue a
testimony authorization, or determines
that the demand for IRS records or
information should be denied, the
authorizing official shall request the
government attorney or other
representative of the government to
oppose the demand and respectfully
inform the court, administrative agency
or other authority, by appropriate
action, that the authorizing official
either has not yet issued a testimony
authorization, or has issued a testimony
authorization to the IRS officer,
employee or contractor that denies
permission to testify or disclose the IRS
records or information. If the
authorizing official denies authorization
in whole or in part, the government
attorney or other representative of the
government shall inform the court,
administrative agency or other authority
of the reasons the authorizing official
gives for not authorizing the testimony
or the disclosure of the IRS records or
information or take other action in
opposition as may be appropriate
(including, but not limited to, filing a
motion to quash or a motion to remove
to Federal court).
(g) Procedure in the event of an
adverse ruling. In the event the court,
administrative agency, or other
authority rules adversely with respect to
the refusal to disclose the IRS records or
information pursuant to the testimony
authorization, or declines to defer a
ruling until a testimony authorization
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7399
has been received, the IRS officer,
employee or contractor who has
received the request or demand shall,
pursuant to this section, respectfully
decline to testify or disclose the IRS
records or information.
(h) Penalties. Any IRS officer or
employee who discloses IRS records or
information without following the
provisions of this section or § 301.9000–
3, may be subject to administrative
discipline, up to and including
dismissal. Any IRS officer, employee or
contractor may be subject to applicable
contractual sanctions and civil or
criminal penalties, including
prosecution under 5 U.S.C. 552a(i), for
willful disclosure in an unauthorized
manner of information protected by the
Privacy Act of 1974, or under section
7213 of the Internal Revenue Code, for
willful disclosure in an unauthorized
manner of return information.
(i) No creation of benefit or separate
privilege. Nothing in §§ 301.9000–1
through 301.9000–3, this section, and
§§ 301.9000–5 and 301.9000–6, creates,
is intended to create, or may be relied
upon to create, any right or benefit,
substantive or procedural, enforceable at
law by a party against the United States.
Nothing in these regulations creates a
separate privilege or basis to withhold
IRS records or information.
§ 301.9000–5 Written statement required
for requests or demands in non-IRS
matters.
(a) Written statement. 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 or 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, IRS
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 section
6103(b) of the Internal Revenue Code
(Code)), or tax convention information
(as defined in section 6105(c)(1) of the
Code), and the statutory authority for
the disclosure of the return or return
information (and, if no consent to
disclose pursuant to section 6103(c) of
the Code accompanies the request or
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demand, the reason consent is not
necessary);
(5) Whether a declaration of an IRS
officer, employee or contractor under
penalties of perjury pursuant to 28
U.S.C. 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
without testimony under applicable
rules of evidence and procedure;
(7) Whether IRS records or
information are available from other
sources; and
(8) A statement that the request or
demand allows a reasonable time
(generally at least fifteen business days)
for compliance.
(b) Permissible waiver of statement.
The requirement of a written statement
in paragraph (a) of this section may be
waived by the authorizing official for
good cause.
§ 301.9000–6
Examples.
The following examples illustrate the
provisions of §§ 301.9000–1 through
301.9000–5:
Example 1. A taxpayer sues a practitioner
in state court for malpractice in connection
with the practitioner’s preparation of a
Federal income tax return. The taxpayer
subpoenas an IRS employee to testify
concerning the IRS employee’s examination
of the taxpayer’s Federal income tax return.
The taxpayer provides the statement required
by § 301.9000–5. This is a non-IRS matter. A
testimony authorization would be required
for the IRS employee to testify. (In addition,
the taxpayer would be required to execute an
appropriate consent under section 6103(c) of
the Code). The IRS would oppose the IRS
employee’s appearance in this case because
the IRS is a disinterested party with respect
to the dispute and would consider the
commitment of resources to comply with the
subpoena inappropriate.
Example 2. In a state judicial proceeding
concerning child support, the child’s
custodial parent subpoenas for a deposition
an IRS agent who is examining certain postdivorce Federal income tax returns of the
non-custodial parent. This is a non-IRS
matter. The custodial parent submits with the
subpoena the statement required by
§ 301.9000–5 stating as the reason for the lack
of taxpayer consent to disclosure that the
non-custodial parent has refused to provide
the consent (both a consent from the taxpayer
complying with section 6103(c) and a
testimony authorization would be required
prior to the IRS agent testifying at the
deposition). If taxpayer consent is obtained,
the IRS may provide a declaration or certified
return information of the taxpayer. A
deposition would be unnecessary under the
circumstances.
Example 3. The chairperson of a
congressional committee requests the
appearance of an IRS employee before the
committee and committee staff to submit to
questioning by committee staff concerning
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15:21 Feb 11, 2005
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the procedures for processing Federal
employment tax returns. This is an IRS
congressional matter. Even though
questioning would not involve the disclosure
of returns or return information, the
questioning would involve the disclosure of
IRS records or information; therefore, a
testimony authorization would be required.
The IRS employee must contact the IRS
Office of Legislative Affairs for instructions
before appearing.
Example 4. The IRS opens a criminal
investigation as to the tax liabilities of a
taxpayer. This is an IRS matter. During the
criminal investigation, the IRS refers the
matter to the United States Department of
Justice, requesting the institution of a Federal
grand jury to investigate further potential
criminal tax violations. The United States
Department of Justice approves the request
and initiates a grand jury investigation. The
grand jury indicts the taxpayer. During the
taxpayer’s trial, the taxpayer subpoenas an
IRS special agent for testimony regarding the
investigation. The records and information
collected during the administrative stage of
the investigation, including the taxpayer’s tax
returns from IRS files, are IRS records and
information. A testimony authorization is
required for the IRS special agent to testify
regarding this information. However, no IRS
testimony authorization is required regarding
the information collected by the IRS special
agent when the IRS special agent was acting
under the direction and control of the United
States Attorney’s Office in the Federal grand
jury investigation. That information is not
IRS records or information within the
meaning of § 301.9000–1(a). Disclosure of
that information should be coordinated with
the United States Attorney’s Office.
Example 5. The United States Department
of Justice attorney representing the IRS in a
suit for refund requests testimony from an
IRS revenue agent. This is an IRS matter. A
testimony authorization would not be
required for the IRS revenue agent to testify
because the testimony was requested by the
government attorney.
Example 6. In response to a request by the
taxpayer’s counsel to interview an IRS
revenue agent who was involved in a case at
the administrative level, the United States
Department of Justice attorney representing
the IRS in a suit for refund asks that the IRS
revenue agent be made available to be
interviewed. This is an IRS matter. A
testimony authorization would be required
for the IRS revenue agent to testify because
the testimony was first requested by
taxpayer’s counsel.
Example 7. A state assistant attorney
general, acting in accordance with a
recommendation from his state’s department
of revenue, is prosecuting a taxpayer under
a state criminal law proscribing the
intentional failure to file a state income tax
return. The assistant attorney general serves
an IRS employee with a subpoena to testify
concerning the taxpayer’s Federal income tax
return filing history. This is a non-IRS matter.
This is also a state judicial proceeding
pertaining to tax administration within the
meaning of section 6103(h)(4) and (b)(4). As
such, the requirements of section 6103(h)(4)
apply. A testimony authorization would be
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Frm 00022
Fmt 4700
Sfmt 4700
required for the testimony demand in the
subpoena.
Example 8. A former IRS revenue agent is
requested to testify in a divorce proceeding.
The request seeks testimony explaining the
meaning of entries appearing on one party’s
transcript of account, which is already in the
possession of the parties. This is a non-IRS
matter. No testimony authorization is
required because the testimony requested
from the former IRS employee involves
general knowledge gained while the former
IRS revenue agent was employed with the
IRS.
Example 9. A Department of Justice
attorney requests an IRS employee to testify
in a refund suit involving Taxpayer A. The
testimony may include tax convention
information, as defined in section 6105,
which was originally obtained by the IRS
from a treaty partner in connection with a tax
case against Taxpayer B. While no testimony
authorization is necessary, because the
testimony is being requested by government
counsel in a tax matter, the IRS employee
may not testify (or otherwise disclose IRS
records or information) without coordinating
with the U.S. Competent Authority, as
disclosure of tax convention information is
governed by section 6105. The disclosure
must also meet the requirements in section
6103(h)(4).
Example 10. In a state court tort action,
Defendant subpoenas IRS for Plaintiff’s
federal income tax returns for particular
taxable years. This is a non-IRS matter. The
Disclosure Officer instructs Defendant that
the IRS has established procedures for
obtaining copies of Federal income tax
returns. Section 601.702(d)(1) of this chapter
establishes the procedures for obtaining
Federal tax returns by requiring written
requests for copies of tax returns using IRS
Form 4506, ‘‘Request for Copy of Tax
Return.’’ At Defendant’s request, Plaintiff
executes Form 4506, naming Defendant’s
counsel as designee, and the form is properly
submitted to IRS. A testimony authorization
would not be required to disclose Plaintiff’s
returns to Defendant’s counsel.
§ 301.9000–7
Effective date.
These regulations are applicable on
February 14, 2005.
PART 602—OMB CONTROL NUMBERS
UNDER THE PAPERWORK
REDUCTION ACT
I Par. 3. The authority citation for part
602 continues to read as follows:
Authority: 26 U.S.C. 7805.
Par. 4. In § 602.101, paragraph (b) is
amended by adding an entry for
§ 301.9000–5 in numerical order to the
table to read as follows:
I
§ 602.101
*
OMB Control numbers.
*
*
(b) * * *
E:\FR\FM\14FER1.SGM
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*
*
Federal Register / Vol. 70, No. 29 / Monday, February 14, 2005 / Rules and Regulations
Current
OMB control
No.
CFR part or section where
identified and described
*
*
*
*
*
301.9000–5 ...............................
1545–1850
*
*
*
*
*
Mark E. Matthews,
Deputy Commissioner for Services and
Enforcement.
Approved: February 3, 2005.
Eric Solomon,
Acting Deputy Assistant Secretary of the
Treasury.
[FR Doc. 05–2816 Filed 2–11–05; 8:45 am]
BILLING CODE 4830–01–P
DEPARTMENT OF THE INTERIOR
Minerals Management Service
30 CFR Part 250
RIN 1010–AC95
Oil and Gas and Sulphur Operations in
the Outer Continental Shelf (OCS)—
Document Incorporated by
Reference—American Petroleum
Institute (API) 510
Minerals Management Service
(MMS), Interior.
ACTION: Final rule.
AGENCY:
SUMMARY: MMS is adding a document to
be incorporated by reference into the
regulations governing oil and gas and
sulphur operations in the OCS. The new
document, API 510, is titled ‘‘Pressure
Vessel Inspection Code: Maintenance
Inspection, Rating, Repair, and
Alteration.’’ This incorporation will
ensure that lessees use the best available
and safest technologies while
maintaining, repairing and altering
pressure vessels in use on the OCS.
DATES: This rule is effective March 16,
2005. The incorporation by reference of
the publication listed in the regulation
is approved by the Director of the
Federal Register as of March 16, 2005.
FOR FURTHER INFORMATION CONTACT:
Richard Ensele, Regulations and
Standards Branch, at (703) 787–1583.
SUPPLEMENTARY INFORMATION: MMS uses
standards, specifications, and
recommended practices developed by
standard-setting organizations and the
oil and gas industry for establishing
requirements for activities on the OCS.
This practice, known as incorporation
by reference, allows us to incorporate
the provisions of technical standards
into the regulations without increasing
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15:21 Feb 11, 2005
Jkt 205001
the volume of the Code of Federal
Regulations (CFR). The legal effect of
incorporation by reference is that the
material is treated as if it were
published in the Federal Register. This
material, like any other properly issued
regulation, then has the force and effect
of law. MMS holds lessees and
operators accountable for complying
with the documents incorporated by
reference in our regulations. The
regulations found at 1 CFR part 51
govern how MMS and other Federal
agencies incorporate various documents
by reference. Agencies can only
incorporate by reference through
publication in the Federal Register.
Agencies must also obtain approval
from the Director of the Federal Register
for each publication incorporated by
reference. Incorporation by reference of
a document or publication is limited to
the specific edition, or specific edition
and supplement or addendum, cited in
the regulations.
The rule will incorporate by reference
the provisions of the Eighth Edition of
API 510 into MMS regulations. MMS
has reviewed this document and has
determined that the eighth edition
should be incorporated into the
regulations to ensure the use of the best
available and safest technologies.
The proposed rule was published on
December 27, 2001 (66 FR 66848) with
a 60-day comment period. We received
comments from two parties concerning
the proposed rule to incorporate API
510. One commenter felt that the
National Board Inspection Code (NBIC)
was a better document to incorporate for
the inspection, repair, rating, and
alteration of pressure vessels. MMS
agrees that the NBIC is an excellent
document. However, we have chosen to
adopt the API document. As we stated
in the proposed rule, it is the intention
of both API and NBIC that their
respective scopes not overlap. NBIC
advises in its scope that ‘‘It is
recognized that an American Petroleum
Institute Inspection Code, API–510,
exists covering the maintenance
inspection, repair, alteration and rerating procedures for pressure vessels
used by the petroleum and chemical
process industries, which is applicable
in these special circumstances. It is the
intent that this Inspection Code (NBIC)
cover installations other than those
covered by API–510 unless the
jurisdiction rules otherwise.’’
The second commenter, an industry
trade organization, recommended the
incorporation of API 510 into the
regulations, with the exception of
sections 6 and 8.5. Section 6 of API 510
is entitled, ‘‘Inspection and Testing of
Pressure Vessels and Pressure Relieving
PO 00000
Frm 00023
Fmt 4700
Sfmt 4700
7401
Devices.’’ Section 8 is entitled,
‘‘Alternative Rules for Exploration and
Production Pressure Vessels.’’ Section
6.5 and section 8.5 are both entitled,
‘‘Pressure Relieving Devices,’’ with
section 8.5 referring back to section 6.5
for specific procedures. The commenter
pointed out that MMS has more
stringent requirements for pressure
relieving devices elsewhere in the
regulations (§ 250.804(a)(2) and
§ 250.1630(a)(1)). MMS agrees. We will
incorporate API 510 into the regulations
except for sections 6.5 and 8.5, since
those two sections pertain specifically
to pressure relieving devices. The rest of
section 6 pertains to pressure vessels
and should be incorporated into the
regulations. We will also drop the
reference to API 510 that appeared in
the proposed rule in 30 CFR
250.803(b)(1)(i) and 30 CFR
250.1629(b)(1)(i), covering pressure
safety relief valves.
Procedural Matters
Regulatory Planning and Review
(Executive Order 12866)
This rule is not a significant rule
under Executive Order 12866. The
Office of Management and Budget
(OMB) has determined that it is not a
significant rule and will not review the
rule.
(1) This rule will not have an effect of
$100 million or more on the economy.
It will not adversely affect in a material
way the economy, productivity,
competition, jobs, the environment,
public health or safety, or State, local,
or tribal governments or communities.
The rule would have no significant
economic impact because the document
does not contain any significant
revisions that will cause lessees or
operators to change their business
practices. The document will not
require the retrofitting of any facilities.
The document may lead to minimal
changes in operating practices, but the
associated costs will be very minor.
(2) This rule will not create a serious
inconsistency or otherwise interfere
with an action taken or planned by
another agency. The rule does not affect
how lessees or operators interact with
other agencies. Nor does this rule affect
how MMS will interact with other
agencies.
(3) This rule does not alter the
budgetary effects or entitlements, grants,
user fees, or loan programs or the rights
or obligations of their recipients. The
rule only addresses the maintenance
inspection, rating, repair, and alteration
of pressure vessels in use on OCS
facilities.
E:\FR\FM\14FER1.SGM
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]]>Agencies
[Federal Register Volume 70, Number 29 (Monday, February 14, 2005)]
[Rules and Regulations]
[Pages 7396-7401]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-2816]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE TREASURY
Internal Revenue Service
26 CFR Parts 301 and 602
[TD 9178]
RIN 1545-BB15
Testimony or Production of Records in a Court or Other Proceeding
AGENCY: Internal Revenue Service (IRS), Treasury.
ACTION: Final regulation.
-----------------------------------------------------------------------
SUMMARY: This document contains final regulations replacing the
existing regulation that establishes the procedures to be followed by
IRS officers and employees upon receipt of a request or demand for
disclosure of IRS records or information. The purpose of the final
regulations is to provide specific instructions and to clarify the
circumstances under which more specific procedures take precedence. The
final regulations extend the application of the regulation to former
IRS officers and employees as well as to persons who are or were under
contract to the IRS. The final regulations affect current and former
IRS officers, employees and contractors, and persons who make requests
or demands for disclosure.
DATES: Effective Date: These regulations are effective February 14,
2005.
Applicability Date: For dates of applicability, see Sec. 301.9000-
7.
FOR FURTHER INFORMATION CONTACT: Scott E. Powers, (202) 622-4580 (not a
toll free number).
SUPPLEMENTARY INFORMATION:
Paperwork Reduction Act
The collections of information contained in these final regulations
have been submitted to the Office of Management and Budget for review
in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
3507(d)) under control number 1545-1850.
The collections of information are in Sec. 301.9000-5. This
information is required to enable the IRS to provide authorizing
officials with a better informed basis upon which to determine whether
to grant, deny, or limit testimony or the disclosure of IRS records or
information so as to conserve agency resources.
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a valid
control number assigned by the Office of Management and Budget.
The burden reflected in the notice of proposed rulemaking (REG-
140930-02) relating to the procedures for IRS officers and employees to
follow upon receipt of a request or demand for disclosure of IRS
records or information was published in the Federal Register (68 FR
40850). Comments concerning the accuracy of this burden estimate and
suggestions for reducing this burden should be sent to the Internal
Revenue Service, Attn: IRS Reports Clearance Officer,
SE:W:CAR:MP:T:T:SP, Washington, DC 20224, and to the Office of
Management and Budget, Attn: Desk Officer for the Department of the
Treasury, Office of Information and Regulatory Affairs, Washington, DC
20503.
Books or records relating to a collection of information must be
retained as long as their contents may become material in the
administration of any internal revenue law. Generally, tax returns and
tax return information are confidential, as required by section 6103 of
the Internal Revenue Code.
Background
This document contains amendments to 26 CFR part 301 under 5 U.S.C.
301 and 26 CFR part 602. On July 9, 2003, a notice of proposed
rulemaking (REG-140930-02) relating to the procedures for IRS officers
and employees to follow upon receipt of a request or demand for
disclosure of IRS records or information was published in the Federal
Register (68 FR 40850). No comments were received from the public in
response to the notice of proposed rulemaking. No public hearing was
requested or held. The proposed regulations are adopted as amended by
this Treasury decision. With the exception of changes that are
grammatical in nature, the revisions are discussed below.
Summary of Comments and Explanation of Revisions
The regulations have been clarified by the addition of an example
illustrating a situation in which testimony authorization is required.
In addition, text and examples have been added to illustrate that even
though testimony authorization may not be required, any disclosure of
IRS records and information must be proper under the applicable
substantive law. For
[[Page 7397]]
example, any disclosure of returns and return information must comply
with section 6103, and any disclosure of tax convention information
must comply with section 6105 and be coordinated with the United States
Competent Authority.
Special Analyses
It has been determined that this Treasury decision is not a
significant regulatory action as defined in Executive Order 12866.
Therefore, a regulatory assessment is not required. It has been
determined that 5 U.S.C. 553(b), the Administrative Procedure Act, does
not apply to these final regulations.
It is hereby certified that the collection of information in these
final regulations will not have a significant economic impact on a
substantial number of small entities. This certification is based upon
the fact that of the estimated 1,400 requests received annually, less
than 500 of those requests are estimated to be received from small
entities. Moreover, the burden associated with complying with the
collection of information in these regulations is estimated to be only
1 hour per respondent. Therefore, a Regulatory Flexibility Analysis
under the Regulatory Flexibility Act (5 U.S.C. chapter 6) is not
required.
Pursuant to section 7805(f) of the Internal Revenue Code, the
notice of proposed rulemaking preceding this regulation was submitted
to the Chief Counsel for Advocacy of the Small Business Administration
for comment on its impact on small business.
Drafting Information
The principal authors of this final regulation are David Fish and
Scott E. Powers, Associate Chief Counsel (Procedure & Administration),
Disclosure & Privacy Law Division.
List of Subjects
26 CFR Part 301
Employment taxes, Estate taxes, Excise taxes, Gift taxes, Income
taxes, Penalties, Reporting and recordkeeping requirements.
26 CFR Part 602
Reporting and recordkeeping requirements.
Adoption of Amendments to the Regulations
0
Accordingly, 26 CFR parts 301 and 602 are amended as follows:
PART 301--PROCEDURE AND ADMINISTRATION
0
Paragraph 1. The authority citation for Part 301 is amended by adding
the following entries in numerical order to read in part as follows:
Authority: 26 U.S.C. 7805 * * *
Section 301.9000-1 also issued under 5 U.S.C. 301 and 26 U.S.C.
6103(q) and 7804;
Section 301.9000-2 also issued under 5 U.S.C. 301 and 26 U.S.C.
6103(q) and 7804;
Section 301.9000-3 also issued under 5 U.S.C. 301 and 26 U.S.C.
6103(q) and 7804;
Section 301.9000-4 also issued under 5 U.S.C. 301 and 26 U.S.C.
6103(q) and 7804;
Section 301.9000-5 also issued under 5 U.S.C. 301 and 26 U.S.C.
6103(q) and 7804;
Section 301.9000-6 also issued under 5 U.S.C. 301 and 26 U.S.C.
6103(q) and 7804; * * *
0
Par. 2. Section 301.9000-1 is revised and Sec. Sec. 301.9000-2 through
301.9000-7 are added to read as follows:
Sec. 301.9000-1 Definitions when used in Sec. Sec. 301.9000-1
through 301.9000-6.
(a) IRS records or information means any material (including copies
thereof) contained in the files (including paper, electronic or other
media files) of the Internal Revenue Service (IRS), any information
relating to material contained in the files of the IRS, or any
information acquired by an IRS officer or employee, while an IRS
officer or employee, as a part of the performance of official duties or
because of that IRS officer's or employee's official status with
respect to the administration of the internal revenue laws or any other
laws administered by or concerning the IRS. IRS records or information
includes, but is not limited to, returns and return information as
those terms are defined in section 6103(b)(1) and (2) of the Internal
Revenue Code (Code), tax convention information as defined in section
6105 of the Code, 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 includes information received, generated or collected
by an IRS contractor pursuant to the contractor's contract or 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 the
United States Attorney's Office. The term IRS records or information
nevertheless does include records or information obtained by the IRS
before, during, or after a Federal grand jury investigation if the
records or information are obtained--
(1) At the administrative stage of a criminal investigation (prior
to the initiation of the grand jury);
(2) From IRS files (such as transcripts or tax returns); or
(3) For use in a subsequent civil investigation.
(b) IRS officers and employees means 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 also includes former officers and employees.
(c) 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.
(d) A request is any request for testimony of an IRS officer,
employee or contractor or for production of IRS records or information,
oral or written, by any person, which is not a demand.
(e) A demand is any subpoena or other order of any court,
administrative agency or other authority, or the Congress, or a
committee or subcommittee of the Congress, and any notice of deposition
(either upon oral examination or written questions), request for
admissions, request for production of documents or things, written
interrogatories to parties, or other notice of, request for, or service
for discovery in a matter before any court, administrative agency or
other authority.
(f) 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 IRS officer or employee acting in an official capacity,
or any IRS officer or employee (including an officer or employee of IRS
Office of Chief Counsel) 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 section
6103(h)(4) and (l)(4) of the Internal Revenue Code.
(g) An IRS congressional matter is any matter before the Congress,
or a committee or subcommittee of the Congress, that is related to the
administration of the internal revenue laws or any other laws
administered by or concerning the IRS, or to IRS records or
information.
[[Page 7398]]
(h) A non-IRS matter is any matter that is not an IRS matter or an
IRS congressional matter.
(i) A testimony authorization is a written instruction or oral
instruction memorialized in writing within a reasonable period by an
authorizing official that sets forth the scope of and limitations on
proposed testimony and/or disclosure of IRS records or information
issued in response to a request or demand for IRS records or
information. A testimony authorization may grant or deny authorization
to testify or disclose IRS records or information and may make an
authorization effective only upon the occurrence of a precedent
condition, such as the receipt of a consent complying with the
provisions of section 6103(c) of the Internal Revenue Code. To
authorize testimony means to issue the instruction described in this
paragraph (i).
(j) An authorizing official is a person with delegated authority to
authorize testimony and the disclosure of IRS records or information.
Sec. 301.9000-2 Considerations in responding to a request or demand
for IRS records or information.
(a) Situations in which disclosure shall not be authorized.
Authorizing officials shall not permit testimony or disclosure of IRS
records or information in response to requests or demands if testimony
or disclosure of IRS records or information would--
(1) Violate a Federal statute including, but not limited to,
sections 6103 or 6105 of the Internal Revenue Code (Code), the Privacy
Act of 1974 (5 U.S.C. 552a), or a rule of procedure, such as the grand
jury secrecy rule, Fed. R. Crim. P. 6(e);
(2) Violate a specific Federal regulation, including, but not
limited to, 31 CFR 103.53;
(3) Reveal classified national security information, unless
properly declassified;
(4) Reveal the identity of an informant; or
(5) Reveal investigatory records or information compiled for law
enforcement purposes that would permit interference with law
enforcement proceedings or would disclose investigative techniques and
procedures, the effectiveness of which could thereby be impaired.
(b) Assertion of privileges. 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--
(1) Attorney-client privilege;
(2) Attorney work product doctrine; and
(3) Deliberative process (executive) privilege.
(c) Non-IRS matters. If any person makes a request or demand for
IRS records or information in connection with a non-IRS matter,
authorizing officials shall take into account the following additional
factors in responding to the request or demand--
(1) Whether the requester is a Federal agency, or a state or local
government or agency thereof;
(2) Whether the demand was issued by a Federal or state court,
administrative agency or other authority;
(3) The potential effect of the case on the administration of the
internal revenue laws or any other laws administered by or concerning
the IRS;
(4) The importance of the legal issues presented;
(5) Whether the IRS records or information are available from other
sources;
(6) The IRS's anticipated commitment of time and anticipated
expenditure of funds necessary to comply with the request or demand;
(7) The number of similar requests and their cumulative effect on
the expenditure of IRS resources;
(8) Whether the request or demand allows a reasonable time for
compliance (generally, at least fifteen business days);
(9) Whether the testimony or disclosure is appropriate under the
rules of procedure governing the case or matter in which the request or
demand arises;
(10) Whether the request or demand involves expert witness
testimony;
(11) Whether the request or demand is for the testimony of an IRS
officer, employee or contractor who is without personal knowledge of
relevant facts;
(12) 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;
(13) Whether the procedures in Sec. 301.9000-5 have been followed;
and
(14) Any other relevant factors that may be brought to the
attention of the authorizing official.
Sec. 301.9000-3 Testimony authorizations.
(a) Prohibition on disclosure of IRS records or information without
testimony authorization. Except as provided in paragraph (b) of this
section, when a request or demand for IRS records or information is
made, no IRS officer, employee or contractor shall testify or disclose
IRS records or information to any court, administrative agency or other
authority, or to the Congress, or to a committee or subcommittee of the
Congress without a testimony authorization. However, an IRS officer,
employee or contractor may appear in person to advise that he or she is
awaiting instructions from an authorizing official with respect to the
request or demand.
(b) Exceptions. No testimony authorization is required in the
following circumstances--
(1) To respond to a request or demand for IRS records or
information by the attorney or other government representative
representing the IRS in a particular IRS matter;
(2) 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;
(3) 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; or
(4) 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, those relating to: procedures pursuant
to Sec. 601.702(d) of this chapter; Freedom of Information Act
requests pursuant to 5 U.S.C. 552; Privacy Act of 1974 requests
pursuant to 5 U.S.C. 552a; disclosures to state tax agencies pursuant
to section 6103(d) of the Internal Revenue Code (Code); and disclosures
to the United States Department of Justice pursuant to an ex parte
order under section 6103(i)(1) of the Code.
(c) Disclosures of IRS records or information with or without
testimony authorization must be permitted under other applicable law.
Any disclosure of IRS records or information that is otherwise
permissible under this section must not be prohibited under applicable
law. For example, in a case in which returns and return information may
be disclosed, the disclosure must be authorized under section 6103,
even if any required testimony authorization is obtained. If tax
convention information (as defined under section 6105) may be
disclosed, in deciding whether the disclosure is authorized, the
authorizing
[[Page 7399]]
official must coordinate the disclosure with the U.S. Competent
Authority.
Sec. 301.9000-4 Procedure in the event of a request or demand for IRS
records or information.
(a) Purpose and scope. This section prescribes procedures to be
followed by IRS officers, employees and contractors upon receipt of a
request or demand in matters in which a testimony authorization is or
may be required.
(b) Notification of the Disclosure Officer. Except as provided in
paragraphs (c), (d), and (e) of this section, an IRS officer, employee
or contractor who receives a request or demand for IRS records or
information for which a testimony authorization is or may be required
shall notify promptly the disclosure officer servicing the IRS
officer's, employee's or contractor's geographic area. The IRS officer,
employee or contractor shall await instructions from the authorizing
official concerning the response to the request or demand. An IRS
officer, employee, or contractor who receives a request or demand in
one of the following matters should not notify the disclosure officer,
but should follow the instructions in paragraph (c), (d), or (e) of
this section, as applicable:
(1) United States Tax Court cases.
(2) Personnel matters, labor relations matters, government contract
matters, matters related to informant claims or matters related to the
rules of Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971) (Bivens matters), or matters under the
Federal Tort Claims Act (FTCA).
(3) IRS congressional matters.
(c) Requests or demands in United States Tax Court cases. An IRS
officer, employee or contractor who receives a request or demand for
IRS records or information on behalf of a petitioner in a United States
Tax Court case shall notify promptly the IRS Office of Chief Counsel
attorney assigned to the case. The IRS Office of Chief Counsel attorney
shall notify promptly the authorizing official. The IRS officer,
employee or contractor who received the request or demand shall await
instructions from the authorizing official.
(d) Requests or demands in personnel, labor relations, government
contract, Bivens or FTCA matters, or matters related to informant
claims. An IRS officer, employee or contractor who receives a request
or demand, on behalf of an appellant, grievant, complainant or
representative, for IRS records or information in a personnel, labor
relations, government contract, Bivens or FTCA matter, or matter
related to informant claims, shall notify promptly 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 promptly the IRS Associate Chief Counsel (General Legal
Services) attorney servicing the geographic area. The IRS Associate
Chief Counsel (General Legal Services) attorney shall notify promptly
the authorizing official. The IRS officer, employee or contractor who
received the request or demand shall await instructions from the
authorizing official.
(e) Requests or demands in IRS congressional matters. An IRS
officer, employee or contractor who receives a request or demand in an
IRS congressional matter shall notify promptly the IRS Office of
Legislative Affairs. The IRS officer, employee or contractor who
received the request or demand shall await instructions from the
authorizing official.
(f) Opposition to a demand for IRS records or information in IRS
and non-IRS matters. If, in response to a demand for IRS records or
information, an authorizing official has not had a sufficient
opportunity to issue a testimony authorization, or determines that the
demand for IRS records or information should be denied, the authorizing
official shall request the government attorney or other representative
of the government to oppose the demand and respectfully inform the
court, administrative agency or other authority, by appropriate action,
that the authorizing official either has not yet issued a testimony
authorization, or has issued a testimony authorization to the IRS
officer, employee or contractor that denies permission to testify or
disclose the IRS records or information. If the authorizing official
denies authorization in whole or in part, the government attorney or
other representative of the government shall inform the court,
administrative agency or other authority of the reasons the authorizing
official gives for not authorizing the testimony or the disclosure of
the IRS records or information or take other action in opposition as
may be appropriate (including, but not limited to, filing a motion to
quash or a motion to remove to Federal court).
(g) Procedure in the event of an adverse ruling. In the event the
court, administrative agency, or other authority rules adversely with
respect to the refusal to disclose the IRS records or information
pursuant to the testimony authorization, or declines to defer a ruling
until a testimony authorization has been received, the IRS officer,
employee or contractor who has received the request or demand shall,
pursuant to this section, respectfully decline to testify or disclose
the IRS records or information.
(h) Penalties. Any IRS officer or employee who discloses IRS
records or information without following the provisions of this section
or Sec. 301.9000-3, may be subject to administrative discipline, up to
and including dismissal. Any IRS officer, employee or contractor may be
subject to applicable contractual sanctions and civil or criminal
penalties, including prosecution under 5 U.S.C. 552a(i), for willful
disclosure in an unauthorized manner of information protected by the
Privacy Act of 1974, or under section 7213 of the Internal Revenue
Code, for willful disclosure in an unauthorized manner of return
information.
(i) No creation of benefit or separate privilege. Nothing in
Sec. Sec. 301.9000-1 through 301.9000-3, this section, and Sec. Sec.
301.9000-5 and 301.9000-6, creates, is intended to create, or may be
relied upon to create, any right or benefit, substantive or procedural,
enforceable at law by a party against the United States. Nothing in
these regulations creates a separate privilege or basis to withhold IRS
records or information.
Sec. 301.9000-5 Written statement required for requests or demands in
non-IRS matters.
(a) Written statement. 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 or 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, IRS 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 section 6103(b) of the Internal
Revenue Code (Code)), or tax convention information (as defined in
section 6105(c)(1) of the Code), and the statutory authority for the
disclosure of the return or return information (and, if no consent to
disclose pursuant to section 6103(c) of the Code accompanies the
request or
[[Page 7400]]
demand, the reason consent is not necessary);
(5) Whether a declaration of an IRS officer, employee or contractor
under penalties of perjury pursuant to 28 U.S.C. 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 without testimony
under applicable rules of evidence and procedure;
(7) Whether IRS records or information are available from other
sources; and
(8) A statement that the request or demand allows a reasonable time
(generally at least fifteen business days) for compliance.
(b) Permissible waiver of statement. The requirement of a written
statement in paragraph (a) of this section may be waived by the
authorizing official for good cause.
Sec. 301.9000-6 Examples.
The following examples illustrate the provisions of Sec. Sec.
301.9000-1 through 301.9000-5:
Example 1. A taxpayer sues a practitioner in state court for
malpractice in connection with the practitioner's preparation of a
Federal income tax return. The taxpayer subpoenas an IRS employee to
testify concerning the IRS employee's examination of the taxpayer's
Federal income tax return. The taxpayer provides the statement
required by Sec. 301.9000-5. This is a non-IRS matter. A testimony
authorization would be required for the IRS employee to testify. (In
addition, the taxpayer would be required to execute an appropriate
consent under section 6103(c) of the Code). The IRS would oppose the
IRS employee's appearance in this case because the IRS is a
disinterested party with respect to the dispute and would consider
the commitment of resources to comply with the subpoena
inappropriate.
Example 2. In a state judicial proceeding concerning child
support, the child's custodial parent subpoenas for a deposition an
IRS agent who is examining certain post-divorce Federal income tax
returns of the non-custodial parent. This is a non-IRS matter. The
custodial parent submits with the subpoena the statement required by
Sec. 301.9000-5 stating as the reason for the lack of taxpayer
consent to disclosure that the non-custodial parent has refused to
provide the consent (both a consent from the taxpayer complying with
section 6103(c) and a testimony authorization would be required
prior to the IRS agent testifying at the deposition). If taxpayer
consent is obtained, the IRS may provide a declaration or certified
return information of the taxpayer. A deposition would be
unnecessary under the circumstances.
Example 3. The chairperson of a congressional committee requests
the appearance of an IRS employee before the committee and committee
staff to submit to questioning by committee staff concerning the
procedures for processing Federal employment tax returns. This is an
IRS congressional matter. Even though questioning would not involve
the disclosure of returns or return information, the questioning
would involve the disclosure of IRS records or information;
therefore, a testimony authorization would be required. The IRS
employee must contact the IRS Office of Legislative Affairs for
instructions before appearing.
Example 4. The IRS opens a criminal investigation as to the tax
liabilities of a taxpayer. This is an IRS matter. During the
criminal investigation, the IRS refers the matter to the United
States Department of Justice, requesting the institution of a
Federal grand jury to investigate further potential criminal tax
violations. The United States Department of Justice approves the
request and initiates a grand jury investigation. The grand jury
indicts the taxpayer. During the taxpayer's trial, the taxpayer
subpoenas an IRS special agent for testimony regarding the
investigation. The records and information collected during the
administrative stage of the investigation, including the taxpayer's
tax returns from IRS files, are IRS records and information. A
testimony authorization is required for the IRS special agent to
testify regarding this information. However, no IRS testimony
authorization is required regarding the information collected by the
IRS special agent when the IRS special agent was acting under the
direction and control of the United States Attorney's Office in the
Federal grand jury investigation. That information is not IRS
records or information within the meaning of Sec. 301.9000-1(a).
Disclosure of that information should be coordinated with the United
States Attorney's Office.
Example 5. The United States Department of Justice attorney
representing the IRS in a suit for refund requests testimony from an
IRS revenue agent. This is an IRS matter. A testimony authorization
would not be required for the IRS revenue agent to testify because
the testimony was requested by the government attorney.
Example 6. In response to a request by the taxpayer's counsel to
interview an IRS revenue agent who was involved in a case at the
administrative level, the United States Department of Justice
attorney representing the IRS in a suit for refund asks that the IRS
revenue agent be made available to be interviewed. This is an IRS
matter. A testimony authorization would be required for the IRS
revenue agent to testify because the testimony was first requested
by taxpayer's counsel.
Example 7. A state assistant attorney general, acting in
accordance with a recommendation from his state's department of
revenue, is prosecuting a taxpayer under a state criminal law
proscribing the intentional failure to file a state income tax
return. The assistant attorney general serves an IRS employee with a
subpoena to testify concerning the taxpayer's Federal income tax
return filing history. This is a non-IRS matter. This is also a
state judicial proceeding pertaining to tax administration within
the meaning of section 6103(h)(4) and (b)(4). As such, the
requirements of section 6103(h)(4) apply. A testimony authorization
would be required for the testimony demand in the subpoena.
Example 8. A former IRS revenue agent is requested to testify in
a divorce proceeding. The request seeks testimony explaining the
meaning of entries appearing on one party's transcript of account,
which is already in the possession of the parties. This is a non-IRS
matter. No testimony authorization is required because the testimony
requested from the former IRS employee involves general knowledge
gained while the former IRS revenue agent was employed with the IRS.
Example 9. A Department of Justice attorney requests an IRS
employee to testify in a refund suit involving Taxpayer A. The
testimony may include tax convention information, as defined in
section 6105, which was originally obtained by the IRS from a treaty
partner in connection with a tax case against Taxpayer B. While no
testimony authorization is necessary, because the testimony is being
requested by government counsel in a tax matter, the IRS employee
may not testify (or otherwise disclose IRS records or information)
without coordinating with the U.S. Competent Authority, as
disclosure of tax convention information is governed by section
6105. The disclosure must also meet the requirements in section
6103(h)(4).
Example 10. In a state court tort action, Defendant subpoenas
IRS for Plaintiff's federal income tax returns for particular
taxable years. This is a non-IRS matter. The Disclosure Officer
instructs Defendant that the IRS has established procedures for
obtaining copies of Federal income tax returns. Section
601.702(d)(1) of this chapter establishes the procedures for
obtaining Federal tax returns by requiring written requests for
copies of tax returns using IRS Form 4506, ``Request for Copy of Tax
Return.'' At Defendant's request, Plaintiff executes Form 4506,
naming Defendant's counsel as designee, and the form is properly
submitted to IRS. A testimony authorization would not be required to
disclose Plaintiff's returns to Defendant's counsel.
Sec. 301.9000-7 Effective date.
These regulations are applicable on February 14, 2005.
PART 602--OMB CONTROL NUMBERS UNDER THE PAPERWORK REDUCTION ACT
0
Par. 3. The authority citation for part 602 continues to read as
follows:
Authority: 26 U.S.C. 7805.
0
Par. 4. In Sec. 602.101, paragraph (b) is amended by adding an entry
for Sec. 301.9000-5 in numerical order to the table to read as
follows:
Sec. 602.101 OMB Control numbers.
* * * * *
(b) * * *
[[Page 7401]]
------------------------------------------------------------------------
Current OMB
CFR part or section where identified and described control No.
------------------------------------------------------------------------
* * * * *
301.9000-5................................................. 1545-1850
* * * * *
------------------------------------------------------------------------
Mark E. Matthews,
Deputy Commissioner for Services and Enforcement.
Approved: February 3, 2005.
Eric Solomon,
Acting Deputy Assistant Secretary of the Treasury.
[FR Doc. 05-2816 Filed 2-11-05; 8:45 am]
BILLING CODE 4830-01-P
