509

Use of Certain Disclosed Returns and Return Information in Judicial or Administrative Proceedings, 26 U.S.C. § 6103(i)(4)

This paragraph governs disclosures which agencies may make of returns or return information obtained from IRS under either 26 U.S.C. §  6103(i)(1) or (i)(2). They "may be disclosed in any judicial or administrative proceeding pertaining to the enforcement of a specifically designated federal criminal statute or related civil forfeiture to which the United States or a federal agency is a party" upon a finding that the information is probative of a matter in issue relevant to the commission of a crime, or of the guilt or liability of a party. Disclosure may also be made pursuant to either the Jencks Act, 18 U.S.C. § 3500, or Rule 16 of the Fed. R. Crim. P. No finding of relevance is required for disclosure of return information other than taxpayer return information in any proceeding described above when the United States or a federal agency is a party. No return or return information is to be admitted into evidence if IRS notifies the Attorney General of a determination that disclosure "would identify a confidential informant or seriously impair a criminal or civil tax investigation." This situation is not likely to occur since IRS normally will not have disclosed the information to the agency if either of these events is likely to result from such disclosure. In any event, the burden of notification is clearly on IRS. Admission into evidence in violation of this prohibition does not constitute reversible error. The Criminal Division has interpreted this language to include use in any post-conviction proceeding resulting from the original conviction. The justifying theory is that enforcement continues until the defendant is no longer subject to the custody of the Attorney General. Thus, the United States Parole Commission may use tax material in a hearing to determine whether to terminate parole supervision pursuant to 18 U.S.C. § 4211(c). Moreover, such use is appropriate even though it may not, technically, amount to an introduction "into evidence." For example, tax material may be provided to the court for its use in sentencing pursuant to Rule 32(c) of the Federal Rules of Criminal Procedure. [cited in Criminal Resource Manual 505; Criminal Resource Manual 506]