Communication with IRS Personnel
Section 6103 of Title 26 of the United States Code governs not only
access to tangible tax material (e.g., returns, IRS investigative reports),
also communications regarding such material. See this Manual at 503. Communication between IRS personnel
the prosecutor (e.g., the furnishing by IRS of investigative leads,
of IRS investigative results) is severely restricted. Satisfactory
is possible, however, where disclosure has been obtained pursuant to 26
§ 6103(i)(1) or (i)(2).|
Under either 26 U.S.C. § 6103(i)(1) or (i)(2), communication
between a prosecutor and IRS agent is permissible to the same extent that
disclosure is authorized in the court order or request. The prosecutor and
IRS agent can discuss fully the material initially disclosed to the
Assuming the order or request authorizes IRS disclosure of subsequently
material, discussion and exchange of information can continue within the
boundaries of the order or request as dictated by the necessities of the
investigation. Separate court orders or requests are required, however, to
facilitate communication where the investigation expands to focus on
not included in the original order or request.
Absent a 26 U.S.C. § 6103(i)(1) court order or a 26 U.S.C.
6103(i)(2) request, IRS can only provide tax material under 26 U.S.C.
6103(i)(3) and 26 U.S.C. § 6103(k)(6), both of which inhibit ongoing
Under 26 U.S.C. § 6103(i)(3)(A), 26 U.S.C. § 6103
be disclosed by IRS "to the extent necessary to apprise" the prosecutor of
possible commission of a federal crime. See this Manual at 508. The provision appears geared to
precipitating a 26 U.S.C. § 6103(i)(1) or (i)(2) request and not to
a flow of investigative leads. Assuming the latter use is not improper, the
material, once disclosed by IRS, could be discussed with an IRS agent where
investigation could not otherwise be properly conducted. Unlike 26 U.S.C.
6103(i)(1) and (i)(2), 26 U.S.C. § 6103(i)(3)(A) requires that all
disclosures -- initial and subsequent -- be in writing. Communication
to such an impediment appears overly cumbersome.
By contrast, 26 U.S.C. § 6103(i)(3)(B) does not require that
disclosures be in writing, which is sensible since it pertains to emergency
circumstances. The provision appears to be geared to supplying
leads calling for an immediate response by law enforcement authorities, and
communications between IRS and law enforcement authorities should be
under 26 U.S.C. § 6103(i)(3)(B).
Under 26 U.S.C. § 6103(k)(6), 26 U.S.C. § 6103 material
disclosed to a prosecutor by an IRS agent "to the extent that such
necessary in obtaining information, which is not otherwise reasonably
for purposes of tax administration. The provision is designed to allow an
investigator to make limited disclosures for purposes of completing a tax
but does not contemplate aiding the prosecutor with the preparation of a
criminal case. Thus, a prosecutor may not receive all the material relevant
the non-tax criminal case and, under 26 U.S.C. § 6103(k)(6), has no way
ascertaining the extent of relevant material withheld. No genuine exchange
information is possible under 26 U.S.C. § 6103(k)(6).