These procedures provide instructions for IRS officers and employees (including former officers and employees), as well as IRS contractors (including former contractors) responding to requests and demands for testimony and production of IRS records or information in judicial or administrative proceedings.

Treasury Regulations 301.9000-1 through 301.9000-7 require IRS officers and employees, as well as contractors, to obtain prior approval before they may produce IRS records or information or testify in judicial or administrative proceedings in response to a demand (subpoena, notice of deposition, court order, etc.).

Delegation Order 11-2 sets forth the IRS officials who may authorize testimony or disclosure of IRS records or information in response to certain requests and demands for such information.

The scope of the authorization will be restricted in accordance with applicable disclosure laws (e.g., IRC §6103, IRC §6104, IRC §6105, IRC §6110, IRC §4424, and the Privacy Act).

IRS records or information mean any material (including copies thereof) contained in the files (including paper, electronic, or other media files) of the IRS, any information relating to material contained in the files of the IRS, or any information acquired by a current or former IRS officer, employee, or contractor, while an IRS officer, employee, or contractor as a part of the performance of official duties or because of that IRS officer's, employee’s, or contractor’s official status with respect to the administration of the internal revenue laws or any other laws administered by or concerning the IRS.

In this section, "IRS records or information" will be referred to as "IRS information. "

IRS information includes, but is not limited to, returns and return information as defined in IRC §6103(b)(1) and (2), tax convention information as defined in IRC §6105, information gathered during Bank Secrecy Act (BSA) and money laundering investigations, and personnel records and other information pertaining to IRS officers and employees. IRS information also includes information received, generated, or collected by an IRS contractor pursuant to the contractor's contract or agreement with the IRS.

Information or documents obtained by an employee under the direction and control of the U.S. Attorney's Office in a grand jury investigation is generally not considered IRS information subject to Treasury Regulations 301.9000-1 through 301.9000-7.

The term "IRS records or information" includes records or information obtained during the administrative stage of a criminal investigation (prior to the initiation of the grand jury), obtained from IRS files (such as transcripts or tax returns), or subsequently obtained by the IRS for use in a civil investigation.

Testimony in a grand jury investigation regarding returns obtained pursuant to IRC §6103(h)(2) constitutes testimony about IRS information.

A demand is an order from any court, administrative agency or other authority, or the Congress, or a committee or subcommittee of the Congress, and any notice of deposition, and includes:

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 officer or employee acting in an official capacity, or any IRS officer, or employee (including an officer or employee of the 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. This includes, but is not limited to, judicial and administrative proceedings described in IRC §6103(h)(4) and IRC §6103(l)(4).

IRS officers and employees mean 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 includes former officers and employees.

An 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 includes former contractors.

The field IRS Disclosure Office should be contacted for advice by any former employee, officer, or contractor who receives a request or demand to testify concerning returns and return information, or other IRS information.

To the extent a former officer, employee, or contractor is requested or demanded to give testimony or produce documents which would be considered to be returns or return information, the former officer, employee, or contractor is still governed by the provisions of IRC §6103.

In Delegation Order 11-2 there are tables for testimony authorization that specify the judicial or administrative proceedings that do or do not require testimony authorizations. Each table gives examples of the proceeding and lists the responsible officials for both preparing and either authorizing or denying the testimony.

In addition, Delegation Order 11-2 includes a table that provides a list of the privileges to withhold documents or testimony. This table specifies who has the authority to either assert or waive these privileges.

In general, use the authorities in the tables of Delegation Order 11-2 to determine whether to permit officers or employees of the IRS working in the same geographical area as the listed authorizing official to testify or produce IRS information subsequent to a request or demand for such records or information.

Table 1 of Delegation Order 11-2 covers authorization for Tax Court proceedings.

IRS officials charged with preparing or authorizing testimony approvals or denials should coordinate with appropriate counsel before acting. In some cases, this will involve coordination through HQ Chief Counsel.

The following requests or demands for testimony or production of IRS information must be authorized by the Director, Disclosure of the Office of Governmental Liaison and Disclosure (GLD).

The following requests or demands for testimony or production of IRS information must be authorized by the Commissioner, the appropriate Deputy Commissioner, or other delegated official in accordance with Delegation Order 11-2:

These authorizations must be cleared through the Associate Chief Counsel (Procedure and Administration).

An IRS matter is defined in IRM 11.3.35.3(8).

"IRS matter" is not defined in IRC §6103. However, these matters include, but are not limited to:

No authorization is needed when testimony or production of records is requested by Government counsel representing the IRS in an IRS matter.

Where testimony requesting IRS information is sought in an IRS matter by a party to the litigation other than the government (i.e., the defense in a criminal tax case, a petitioner in a U.S. Tax Court case, the plaintiff in a Federal Tort Claims Act case, or the plaintiff in a refund litigation case), an authorization or denial is required. The office of Chief Counsel is responsible for preparing the proposed authorization and submitting it for approval. Testimony authorization is no longer required 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.

Table 1 of Delegation Order 11-2 delegates to Chief Counsel the authority to determine whether to permit testimony and production of records in response to a Tax Court subpoena.

Chief Counsel has redelegated authority to determine whether to permit testimony and production of records in response to a Tax Court subpoena to Area Counsel, except for Headquarters matters, where the Associate Chief Counsel has been redelegated authority.

No authorization is needed if the IRS officer, employee, or contractor is requested to testify or produce documents in such a proceeding on behalf of the Commissioner.

No testimony authorization is needed to respond to a request or demand issued to a former IRS officer, employee, or contractor for expert opinion or 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.

No testimony authorization is needed 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:

Field Disclosure Offices are responsible for preparing authorizations for signature by GLD Area Managers in all cases (except for those involving BSA information in Delegation Order 11-2, Table 6) other than IRS matters. Non-IRS matters are matters not otherwise defined as IRS matters or congressional requests/demands.

The Headquarters Office of Disclosure is responsible for preparing authorizations for the signature of the Chief, Disclosure or Director, GLD, and for the Commissioner and the appropriate Deputy Commissioner. See Delegation Order 11-2.

These authorizations must be reviewed by Chief Counsel prior to submission to the appropriate official for signature.

Disclosure personnel will issue written instructions advising all employees to immediately transmit most requests or demands for testimony or production of IRS information to their Disclosure Office along with pertinent facts and background. Such transmittals would not apply to requests or demands in United States Tax Court cases, requests or demands in IRS congressional matters, and requests or demands in personnel, labor relations, government contract, Bivens-type actions, and Federal Tort Claims Act (FTCA) matters, or matters related to informant claims and requests.

A request or demand from a party other than the government in IRS related matters should be transmitted immediately to the appropriate Office of Chief Counsel.

While the preparation of a testimony authorization in response to a subpoena in an IRS matter is the responsibility of IRS Chief Counsel, Disclosure personnel may, depending on local policy, assist in briefing the employee on the disclosure ramifications of the testimony.

Employees whose testimony is requested/subpoenaed and Disclosure personnel at offices having jurisdiction over requested/subpoenaed IRS information are responsible for gathering and reporting the necessary facts on which a proper authorization may be based.

This will include contacting all IRS functions that are or may be affected by the requested testimony authorization to determine if there are open or pending cases. If there are such matters, Disclosure personnel should solicit a recommendation from the affected functions as to whether disclosure will seriously impair tax administration, and if so, how.

Pertinent information will be recorded on Form 6339, Testimony Report, ( See Exhibit 11.3.35-1) or on a management approved form containing substantially the same information as Form 6339.

In cases involving employees or documents under the jurisdiction of more than one office, Disclosure personnel in the involved offices shall coordinate the response.

Jurisdiction over documents and employees for purposes of authorizing testimony and production of records will continue to be vested in the approving official of the office where the respective documents and employees are located.

Disclosure personnel, with the assistance of Disclosure functional coordinators or employees in the affected offices, are also responsible for coordinating the following actions in connection with the processing of testimony cases:

Disclosure personnel may seek technical assistance from the Headquarters Office of Disclosure when necessary.

Disclosure personnel will maintain a file for testimony and production requests that indicates the actions taken through testimony and production of records.

The closed case files shall contain Form 6339 or equivalent and will include the following:

Disclosure of information or documents obtained by an employee while under the direction and control of the U.S. Attorney's Office in a Federal grand jury investigation does not require testimony authorization pursuant to Treasury Regulation 301.9000-3. See (3) below. Rather, authorization in these instances comes from the Department of Justice.

Disclosure personnel should direct employees receiving subpoenas regarding Federal grand jury information to the Department of Justice official (usually the Assistant U.S. Attorney assigned to the grand jury investigation) to obtain any necessary direction.

Disclosure personnel should be aware, however, that testimony regarding information obtained during the administrative stage of an investigation (prior to the initiation of the grand jury) may require testimony authorization. See Treasury Regulation 301.9000-1(a).

A subpoena from a defendant that requires testimony about tax information provided pursuant to IRC §6103(h)(2) in a grand jury investigation also requires authorization pursuant to Treasury Regulation 301.9000-3. However, see Treasury Regulation 301.9000-3(b)(2) for exceptions related to admissions, document production, and written interrogatories.

If a defendant's subpoena covers any IRS information as defined in IRM 11.3.35.3(1), and Treasury Regulation 301.9000-3 requires authorization, the Assistant U.S. Attorney or other appropriate Department of Justice (DOJ) official must review a decision whether to permit testimony.

Even if there is no requirement pursuant to Treasury Regulation 301.9000-3 for a written testimony authorization, an employee may request and receive written approval from the Disclosure Office to appear and give testimony under the guidance of the Assistant U.S. Attorney or other appropriate DOJ official.

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:

Permissible waiver of statement -The requirement of a written statement may be waived by the authorizing official for good cause.

Failure to provide the written statement may result in IRS's opposition to the demand. See Treasury Regulation 301.9000-4(f).

Treasury Regulations 301.9000-1 through 301.9000-7 set forth the procedures under which IRS employees may disclose IRS information in response to a subpoena.

The regulations establish the Commissioner's right to determine whether the disclosure should be made and how it should be made or limited in accordance with applicable statutes.

The Disclosure Office and Chief Counsel are responsible for providing the Commissioner's authorizing official (see Delegation Order 11-2) with the pertinent facts necessary to make such determination.

In submitting recommendations for and preparing testimony and production authorizations, disclosure personnel must take into account:

Applicability of the above factors is usually evident from the information gathered in accordance with IRM 11.3.35.8 and IRM 11.3.35.10, and will serve as a basis for including specific limiting language in the proposed testimony and production authorization.

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:

The authorization prepared for the appropriate approving official should, to the extent applicable, specifically indicate:

It is imperative that the authorization be approved and the employee notified prior to the time the requested/subpoenaed employee is scheduled to appear in the judicial or administrative proceeding.

There is a general rule of cooperation among Federal agencies. Therefore, when the government is a party to the litigation, testimony is usually provided. Depending upon local policy, this cooperation may also extend to state or local governments.

Normally, IRS resources should not be expended in private litigation. The Disclosure Office should offer alternate sources or methods of obtaining the requested data (e.g., routine uses of Privacy Act System of Records, Form 4506 or 4506-T, IRC §6103(c), or IRC §6103(e)). If any person makes a request or demand for IRS records or information in connection with a non-IRS matter, authorizing officials should take into account the following additional factors when responding to the request or demand:

Requests for IRS expert testimony in non-tax matters will normally be denied. However, if the IRS has an interest in the issue and the outcome of the litigation, IRS employees may be authorized to testify. The Disclosure Manager will coordinate determinations of IRS interest with Chief Counsel and the involved function(s).

However, when a determination is made that it is not in the IRS's interest to provide testimony, appropriate actions should be taken by the field Disclosure staff (request that the order be withdrawn, offer alternate information, etc.) or by Area Counsel to work through DOJ to have the subpoena quashed. Written notification should be supplied to the employee. See IRM 11.3.35.12(5).

The key to handling testimony cases is obtaining timely and accurate information.

Disclosure personnel should speak to the attorney or requester responsible for serving the request or subpoena. This call should be used to:

To the extent possible, Disclosure personnel must attempt to avoid unnecessary appearances by IRS employees in judicial and administrative proceedings.

If there are disclosure complications, Disclosure personnel should request that the issuing party withdraw the request/subpoena. Although a written statement of withdrawal is desirable, an oral statement by the requester to the effect that the IRS need not appear in response to his/her request/subpoena is generally sufficient to close out the case. A note to this effect should be included in the testimony file and in the E-DIMS case history notes. Disclosure personnel should send a letter confirming withdrawal to the requester.

If the authorization to testify is denied, and the requester refuses to withdraw the request/subpoena, the authorizing official must give the employee written confirmation of the denial. A copy may be provided to the court when he/she respectfully declines to testify for lack of authorization as required by Treasury Regulation 301.9000-3.

If there is insufficient time to gather and analyze the facts, prepare a report, and obtain an authorization, Disclosure personnel should contact the requester and inform him/her to this effect (or request that Area Counsel do so). The requester should be informed that the employee would appear if he/she insists, but that the employee will explain to the court or other authority that the request/subpoena was served at the last minute and that Treasury Regulation 301.9000-3 does not permit testimony or production of IRS information without the proper authorization. When confronted with this situation, the requester may seek a postponement, withdraw the subpoena, or still require the employee to appear.

The use of certified documents is another way where appearance of an IRS employee at trial may be minimized. Offer the requester certified documents in lieu of appearance and testimony by an employee. The certified copies of returns and return information are admissible into evidence in accordance with IRC §6103(p)(2)(C) and IRC §7514.

Certified documents are particularly useful when tax returns are desired. If time allows, Disclosure personnel should:

When information is provided pursuant to a subpoena, a note to this effect should be included in the testimony file and in the E-DIMS case history notes. Disclosure personnel may also send a letter to the requester explaining this action.

Additionally, if a request/subpoena is served on more than one IRS employee, depending on the circumstances, the requester should be contacted to see if just one employee, or at least fewer employees, may appear.

If it is clear that an IRS employee will have to appear in court, depending on the circumstances of the case, contact the requester to see if he/she will agree to let the employee appear on a few hours' notice or at a specific time, rather than requiring appearance from the beginning of the proceeding.

Returns and taxpayer return information initially provided under an (i) order require a finding under IRC §6103(i)(4)(A)(i), or an order under IRC §6103(i)(4)(A)(ii) in order to be disclosed in a proceeding.

Unless directed otherwise in the authorization instructions, employees may not testify regarding:

An IRS employee faced with a court order to testify or produce documents prior to receiving testimony and/or production authorization should respectfully decline to testify. The employee should explain to the court that Treasury Regulation 301.9000-3 does not permit him/her to testify or produce IRS information unless the employee has received authorization to testify or produce IRS information and that he/she is awaiting authorization. To the extent necessary, Disclosure or Chief Counsel personnel or Government counsel (usually an Assistant U.S. Attorney) should accompany the employee to explain the situation.

An IRS employee faced with a court order to testify or produce documents with respect to information that is not authorized to be disclosed by the testimony and production authorization should respectfully decline to testify or produce documents with respect to those matters. If returns and return information are involved, the employee should explain to the court that disclosure could subject him/her to civil and criminal sanctions. Disclosure or Chief Counsel personnel, or Government counsel (usually an Assistant U.S. Attorney) should accompany the employee to explain the situation to the court.

In nontax cases, the fact that a person presents a subpoena or other request or demand indicating he/she is the attorney for a taxpayer, is not sufficient to establish that person as the authorized representative of a taxpayer for purposes of disclosing confidential tax information. IRC §6103(c) and (e) require that a taxpayer consent in writing or in open court on the record to the disclosure of his/her confidential tax information. In tax cases, disclosure may be made where the requirements of IRC §6103(h)(4) are met.

Prior to taking the stand as a government witness or a witness for the opposing party in a nontax civil or criminal proceeding, the subpoenaed employee should apprise Government counsel of the limits of the testimony authorization.

Should Government counsel ignore IRS instructions and request testimony which clearly is beyond the scope of the authorization (e.g., testimony concerning third parties or confidential informants) or raise no objection when such testimony is requested by the opposing counsel, the employee should inform the court of any statutory restrictions on disclosure and of the testimony instructions issued by the IRS. The employee should be careful to not directly or indirectly disclose tax information (e.g., fact of filing) when making this explanation. If the line of questioning is pursued, the employee should request the court's permission to consult with IRS officials before responding. If the court refuses to grant permission and insists that the employee testify, the employee should respectfully decline to testify because statutory authority and/or IRS approval is lacking.

Where the legality of the disclosure is questionable, such as when non-Government counsel moves for disclosure based on a constitutional premise as in Brady v. Maryland 373 U.S. 83 (1963) ( See IRM 11.3.35.14), the employee should be guided by Government counsel in providing testimony. In either situation, the IRS will support its employees in any " good faith" decision on their part about the propriety of their actions in protecting the confidentiality of IRS information.

Any IRS officer, employee, or contractor who discloses IRS records or information without authorization under Treasury Regulation 301-9000-3, may be subject to administrative discipline, up to and including dismissal, applicable contractual sanctions and civil or criminal penalties, including prosecution under 5 USC 552(a) or IRC §7213.

In all criminal cases, the Government is under a constitutional obligation to disclose, upon the defendant's request, evidence material either to guilt or punishment (exculpatory evidence), Brady v. Maryland , 373 U.S. 83 (1963). This includes evidence that may be used to impeach or discredit a Government witness. Giglio v. United States, 405 U.S. 105 (1972). It also encompasses Henthorn material (information about the credibility and/ or integrity of a Government employee who will be called as a witness).

The Brady rule does not however, require the Government to seek exculpatory material that is not already in its possession. The Brady decision does not require that the Government perform the defense's task of locating all exculpatory material; rather, the rule of the case is that if such material exists in the Government's files used for purposes of prosecuting the offense, the Government is prohibited from hiding such material from the defense.

If the IRS is not one of the investigating agencies in a prosecution, there are no Brady obligations and Government employees may not disclose information in response to a Brady based order. Chief Counsel should be consulted regarding Brady based orders in cases where IRS is not one of the investigating agencies.

When the IRS discloses returns and/or return information in response to a Brady based order (it can be written or oral but the sufficiency of an oral request should be coordinated with Chief Counsel), the IRS will seek a court order that limits the use of such information by the defendant to the particular proceedings. U.S. v. Moriarity , 69-1 USTC paragraph 9212 (Ed. Wisc. 1969), sets out the guidelines for this order.

In such cases, the IRS will request that the judge inspect the returns and/or return information to determine whether disclosure to the defendant is constitutionally mandated.

The Jencks Act (18 USC 3500) relates only to pre-trial statements of Government witnesses in Federal criminal cases. Any such statements given to the Government relating to the subject matter of the witness' testimony must be provided to the defense.

Disclosures of returns and return information under Jencks must be in a tax proceeding as provided in IRC §6103(h)(4)(D).

Disclosure personnel must advise the requested/subpoenaed employee of the authorization and the permissible scope of testimony and production of IRS information before the employee is scheduled to appear.

The following items are examples of matters that might be addressed:

Disclosure personnel will instruct all employees appearing in testimony cases in Federal and state courts and administrative proceedings other than IRS matters to provide feedback to the Disclosure Office regarding the nature of the testimony given and documents produced. Feedback may be provided in written or oral format.

Feedback information will be documented in the E-DIMS Case History Notes and used by Disclosure personnel to close out the testimony file and, if necessary, account for disclosures and comply with the notice requirement of IRM 11.3.35.17.

Use Form 5482 to meet the accounting requirements of the Privacy Act of 1974, at 5 USC 552a(c) when applicable (i.e., personnel records).

Use Form 5466-B to meet the accounting requirements of IRC §6103(p)(3) when applicable.

The Privacy Act of 1974, at 5 USC 552a(e)(8), requires that each agency make reasonable efforts to serve notice on an individual when any record on that individual is made available to any person under a compulsory legal process when the process becomes a matter of public record.

"Compulsory legal process" is:

It does not include interrogatories and motions for discovery unless in accordance with a court order enforcing such discovery.

Except for (5), (6) and (7) below, appropriate Disclosure and Chief Counsel personnel in the office releasing documents or giving testimony about an individual pursuant to a compulsory legal process will ensure that a notice is issued to the individual indicating that information concerning him/her was made available pursuant to compulsory legal process. The notice should contain a summary of the information provided and should be provided within 5 working days of any record being made public.

Whenever the individual whose information was made available under compulsory legal process is present in the judicial or administrative proceeding when that information is disclosed, the notice requirement set out in (4) may be considered satisfied and no additional notification is required. The case file will be noted that the individual was present at the time of disclosure.

If disclosure is in response to a grand jury subpoena or an ex parte order pursuant to IRC §6103(i)(1), notice should not be given until the subpoena or order becomes a matter of public record. If the subpoena or order does not indicate whether it is a matter of public record, it may be necessary to request the issuing authority to advise the IRS when the matter becomes public so that the required notice may be issued.

Notification is not necessary where the compulsory legal process (whether or not a matter of public record) calls for information contained in a system of records which has been exempted from the requirements of 5 USC 552a(e)(8) pursuant to 5 USC 552a(j)(2).

Mailing the notice to the individuals last known address constitutes a reasonable effort to serve the notice.

A copy of the notice shall be placed in the case file.

In a non IRS matter, witness fees received with a subpoena, court order or other written request requiring testimony by an IRS employee or official should be turned over immediately to the Disclosure Office along with the subpoena and other court related material.

Within 10 workdays, the Disclosure Office will forward the payment for deposit or return it to the requester, as appropriate. If deposited, the witness fees collected should be promptly forwarded to the appropriate office and coded with the proper accounting codes. If the check is payable to an employee, it must be endorsed prior to being forwarded.

Payments may not be held longer than the ten workdays before forwarding to the appropriate fiscal management office. The 10-day limit will provide sufficient time to determine whether approval will be granted for the testimony and will eliminate having to issue a refund of the payment where the subpoena is withdrawn or quashed.

If the subpoena is not withdrawn or if approval or denial of testimony is not made within the 10-day period, the payment should be deposited. The fiscal function will be notified to refund the payment if the subpoena is later withdrawn or quashed.

Payment of witness fees is required prior to the appearance and testimony of an IRS employee when these fees are mandated under Federal or state laws. Where testimony is to be permitted and witness fees have not been paid, the Disclosure Office should contact the requester to secure payment.

Witness fees held by the Disclosure Office pending disposition are high security items and must be protected in accordance with the security guidelines in IRM 1.16, Physical Security Program.

If testimony is not allowed or the subpoena is withdrawn prior to the deposit of the fee, the Disclosure Office must return the payment to the requester.

When an employee is required to testify and possibly disclose confidential information or any other job related information, the following items must be kept in mind:

During testimony, follow the guidelines below:

Employees are entitled to reimbursement for any travel expenses associated with an appearance, but any fees received from the requesting party must be turned over to the IRS.

Employees will be asked to write a brief summary of their testimony or state why they were not required to testify.

Any questions concerning a subpoena to testify, or to be deposed, should be directed to the field Disclosure Office.

Do not volunteer any information concerning pending litigation to non-IRS Counsel without prior approval.