Making FOIA Requests To The IRS: Overview Of The Basic Procedures And Exemptions, And Issues For Partnerships

Tax Controversy Corner
Making FOIA Requests to the IRS: Overview of the Basic Procedures and Exemptions, and Issues for Partnerships
By Megan L. Brackney*
The Treasury Inspector General for Tax Administration (“TIGTA”) recently issued its Fiscal Year 2017 Statutory Review of Compliance with the Free-
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e relatively low numbers of requests, and the IRS’s decent response rates, made me wonder why more people were not submitting FOIA requests. Ob- taining information through FOIA can be a very useful tool when representing taxpayers in audits, investigations, Appeals, or in litigation. Practitioners should consider making an FOIA request to the IRS after the conclusion of an exami- nation, or even during an examination if the IRS has not provided the taxpayer with information in its possession that may be relevant to the proper resolution. Obtaining the documents from the IRS’s le may provide insight into why the Revenue Agent made adjustments, disregarded the taxpayer’s explanation, or assessed penalties, which may be helpful in developing the taxpayer’s position in an Appeals conference or Tax Court petition. is column discusses the basics of making an FOIA request to the IRS, with a focus on issues that relate to the information of partnerships.
The Basics of FOIA
Under FOIA, a taxpayer may request disclosure of a wide variety of the IRS’s records, such as factual information collected and prepared by the IRS, legal analysis, and decisions, and IRS procedural rules.4 Speci cally, FOIA provides for public disclosure of all “agency records”5 possessed by the IRS, unless withholding could be justi ed under one of nine exemptions under FOIA.
e IRS must produce the requested information, or if it does not, it must show that the nondisclosed information is not an agency record or that it falls under one of the nine exemptions.6 e main exemptions that apply in requests for information from the IRS are (1) the information is speci cally exempted by
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dom of Information Act. TIGTA noted that in scal year 2016, the IRS processed 8,808 requests to the IRS under Freedom of Information Act (“FOIA”).2 TIGTA found that based on their review of a representative sample of the IRS’s responses, the responses were generally timely, but the IRS improperly withheld information in 14.5% of cases.3
MEGAN L. BRACKNEY is a Partner at Kostelanetz & Fink, LLP in New York, New York.
JANUARY–FEBRUARY 2018