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505

Access to Returns and Return Information

Section 6103(i) of Title 26 of the United States Code sets forth the conditions which govern IRS's disclosure of tax returns and return information protected under 26 U.S.C. § 6103(a) for use in proceedings pertaining to either the enforcement of a federal criminal statute, or related civil forfeiture proceedings which may be pursued in addition to or in lieu of criminal prosecutions. The methods which must be used to obtain IRS's disclosure vary according to the type of material sought and reason for its disclosure.

Disclosure of tax returns and taxpayer return information must be secured through the issuance of an ex parte order by a federal district judge or magistrate judge under 26 U.S.C. § 6103(i)(1). See this Manual at 506. Such orders automatically include return information other than taxpayer return information, i.e., information about a taxpayer from a third party. Thus, when filing an application under 26 U.S.C. § 6103(i)(1), it is not necessary to make a separate request under 26 U.S.C. § 6103(i)(2) (as discussed at 507).

If, however, only return information other than taxpayer return information is sought, it may be obtained pursuant to a written request under 26 U.S.C. §  6103(i)(2). See this Manual at 507.

Section 6103(i)(3) of Title 26 authorizes IRS to make disclosures of return information other than taxpayer return information on its own initiative under certain conditions, and any return information under other, more restrictive conditions. See this Manual at 508.

Section 6103(i)(4) of Title 26 governs the use of information obtained under 26 U.S.C. § 6103(i)(1), (i)(2), or (i)(3) in judicial or administrative proceedings. See this Manual at 509. It should be noted, however, that, although 26 U.S.C. § 6103(i)(4) authorizes use in civil forfeitures related to the enforcement of federal criminal statutes, this use alone does not authorize disclosure under 26 U.S.C. §  6103(i)(1) or (i)(2). Thus, caution should be exercised that any returns or return information needed for a civil forfeiture are obtained under the appropriate procedure before termination of the criminal enforcement proceeding. Criminal enforcement proceedings should not be initiated, however, solely as a means of obtaining return information which would otherwise not be available for use in a civil forfeiture.

Section 6103(i)(5) of Title 26 governs the disclosure of a return or return information for the purpose of locating a fugitive from justice. See this Manual at 510.

Section 6103(i)(6) of Title 26 provides that the Secretary shall not disclose any return or return information under the specified paragraphs and subparagraphs of 26 U.S.C. § 6103(i) if he/she determines "that such disclosure would identify a confidential informant or seriously impair a civil or criminal tax investigation."

The Internal Revenue Service has offered the services of the local District Disclosure Officer to each United States Attorney for the purpose of briefing the United States Attorney and his/her assistants on the procedures to be followed in obtaining returns and return information under the revised statute. Each United States Attorney is urged to respond to this offer. IRS is anxious to cooperate in successfully implementing the statute, and close coordination between individual United States Attorneys' offices and the local District Disclosure Officer will expedite the processing of requests.

In addition, the Criminal Division, through its Office of Enforcement Operations, will be available to lend assistance and answer questions. Contact information and a Tax Disclosure Form can be found in the Criminal Resource Manual at 537.

[cited in Criminal Resource Manual 501; Criminal Resource Manual 513]
[updated October 2008]