An IRS tax investigation operates independently of a prosecutor's non-tax investigation unless a tax investigation and prosecution are authorized by the Tax Division. Generally, absent tax case authorization, the prosecutor will not receive IRS investigative assistance, except to the extent of disclosure and communication permitted by the methods previously discussed. See this Manual at 505. However, given a non-tax criminal investigative situation which requires special expertise of the type possessed by certain IRS personnel, an IRS agent with such expertise may be utilized in that investigation without imposing the restrictions of 26 U.S.C. § 6103. This result is accomplished by "insulating" the agent from the Service through his/her designation to serve in some capacity other than as an IRS agent.
The prosecutor seeking such IRS participation in a non-tax criminal case should keep in mind the following:
- A request for the assistance of IRS personnel is a request for IRS expertise; a request should be made only where such expertise is essential to the investigation.
- Reliance on IRS personnel provides no additional access route to 26 U.S.C. § 6103 tax material; an IRS agent, while so serving, may not gain access to tax material held by IRS relating to the subject of his/her service except as prescribed by 26 U.S.C. § 6103.
- Use of IRS personnel is controlled by internal IRS considerations, and requires IRS authorization (often obtainable at the district director level).
Examples of situations in which the prosecutor might seek IRS participation in a non-tax criminal case include the following:
- An investigation involving political corruption centers around a corporate bookkeeping system suspected of containing camouflaged payoff entries; and
- An informant wishes to provide evidence of a non-tax crime but refuses to deal with anyone other than a trusted IRS agent.