Page 5 - Making FOIA Requests To The IRS: Overview Of The Basic Procedures And Exemptions, And Issues For Partnerships

notify the taxpayer of its rights, and the taxpayer may submit a letter of appeal in writing within 35 days of denial.40 e IRS must respond to the appeal letter within 20 business days from receipt. If the IRS fails to respond within the 20-day period, the requester may le suit in
ENDNOTES
* Ms. Brackney focuses her practice in the areas of civil and criminal tax controversies. She attended the University of Kansas School of Law and received her LL.M. in Taxation from New York University. She can be reached at mbrackney@k aw.com.
1 Fiscal Year 2017 Statutory Review of Compliance with the Freedom of Information Act, Treasury Inspector General for Tax Administration, Ref- erence No. 2017-30-075 (Sept. 7, 2017).
2 Freedom of Information Act (“FOIA”), 5 USC §552.
3 Id., at 2, 4, 7–7.
4 See generally Internal Revenue Manual (“IRM”)
11.3.13 et seq.
5 An “agency record” is one which the agency
created or obtained and in the control of the agency at the time that the taxpayer makes the FOIA request. U.S. Dep’t of Justice v. Tax Analysts, SCt, 89-1 ustc ¶9386, 492 US 136, 143–146, 109 SCt 2841.
6 5 USC §552(a)(4)(B); Cause of Action, 125 FSupp3d 145, 158 (D.D.C. 2015). If an exemption only applies to a portion of a document, the IRS must separate the exempt portion and disclose the nonexempt material.
7 Other exemptions include:
Exemption 552(b)(1) relates to docu- ments that are “(A) speci cally autho- rized under criteria established by an Executive Order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly clas- si ed pursuant to such Executive Order.”
Exemption 552(b)(2) covers matters “related solely to the internal personnel rules and practices of an agency.”
Exemption 552(b)(4) protects from dis- closure “trade secrets and commercial or nancial information obtained from a person and privileged or con dential.”
Exemption 552(b)(6) protects “per- sonnel and medical les and similar files, the disclosure of which would constitute a clearly unwarranted inva- sion of personal privacy.” See Solers, Inc., CA-4, 2016-2 ustc ¶50,339, 827 F3d
the U.S. District Court. If the IRS denies the appeal, in whole or in part, the requestor may seek judicial review by ling a suit in U.S. district court.41 Attorney’s fees and costs may be assessed against the IRS if the requester “substantially prevails.”42
323, 331 (showing 5 USC section 552(b) (6) permitted the redaction of the IRS’s employees’ names and contact informa- tion from emails where employees’ sub- stantial privacy interests outweigh the public’s interest, which was negligible due to the “absent [of any] compelling allegations of government corruption or illegality.”).
8 In addition to Code Sec. 6103, other exemp- tions include Fed. R. Crim. P. 6(e) (prohibiting disclosure generated during a grand jury investigation) and 31 USC §5319 (reports led under the Bank Secrecy Act).
9 Code Sec. 6103(b)(1).
10 Code Sec. 6103(b)(2)(A).
11 See B.B. Chamberlain, Jr. v. D.C. Alexander, CA-5,
79-1 ustc ¶9211, 589 F2d 827; Emerging Money
Corp., 16 FSupp3d 80 (D. Conn. 2014).
12 Solargistics Corp., CA-7, 91-1 ustc ¶50,027, 921
F2d 729.
13 3K Investments Partners, 133 TC No. 6, Dec.
57,921 (2009).
14 See Notice 2000-44, 2000-2 CB 255.
15 Code Sec. 6103(c). If you are making the request
on behalf of your own client, use Form 2848 (Power of Attorney) or Form 8821 (Tax Informa- tion Authorization) is used for this purpose. See IRM 11.3.3 et seq.; Pub. 947, Practice Before the IRS and Power of Attorney. Disclosure is permit- ted to an attorney who is representing a client in litigation, such as in the Tax Court or federal district courts. Reg. §601.509; IRM 11.3.2.5.
16 Code Sec. 6103(e)(1)(C); IRM 11.3.2.4.2.
17 IRM 11.3.2.4.2(2).
18 Goldstein, 2017 WL 4358674, at *8 (D.D.C. 2017)
(plaintiff who was not a direct partner, i.e., did not hold any percentage of the partnership interest himself, was not entitled to partner- ship information under FOIA).
19 Code Sec. 6103(e)(10); see also R.J. Martin, CA-10, 88-2 ustc ¶9519, 857 F2d 722.
20 D. Abelein, CA-9, 2003-1 ustc ¶50,331, 323 F3d 1210, 1215; Nevins, 1987 WL 47316, at *3 (D.Kan.1987).
21 Mid-South Music Corp., CA-6, 87-1 ustc ¶9317, 818 F2d 536.
24 Id. (citing Code Secs. 6103(e)(1) and (7)).
25 IRM 11.3.40 et seq.
26 IRM 11.3.2.4.13; 11.3.40.8.1.
27 NLRB v. Sears, Roebuck & Co., SCt, 421 US 132,
149 (1975).
28 Solers, 827 F3d 332 (portions of IRS activity
report that would reveal an area of the exam for which the Revenue Agent sought advice from IRS Counsel protected from disclosure by attorney-client privilege).
29 Judicial Watch Inc. v. U.S. Dep’t of Justice, 118 FSupp3d 266 (D.D.C. 2015) (DOJ attorneys’ time records are exempt from disclosure because they are subject to the work-product privilege).
30 See Cause of Action, 125 FSupp3d 145, 158 (D.D.C. 2015).
31 Solers, 827 F3d 330.
32 Id.
33 Mayer Brown LLP, CA-DC, 562 F3d 1190 (2009). 34 Id., at 1192–1193. (emphasis in original).
35 See also www.irs.gov/privacy-disclosure/
freedom-of-information-act-foia-guidelines
(IRS’s online guide with sample FOIA letter, fee
schedules, and other helpful information).
36 See www.irs.gov/uac/IRS-Disclosure-Of ces for
a list of addresses.
37 Reg. §601.702(c)(9)(ii). The IRS cannot assess
search fees if it fails to comply with these time
limits. See 5 USC §552(a)(4)(A)(viii), (a)(6).
38 5 USC §552(a)(6)(A).
39 Reg. §601.702(c)(9)(v). Also, in certain cir-
cumstances, the IRS may extend the time limitations unilaterally. Reg. §601.702(c)(11). The regulations also provide for expedited processing where there is “compelling need” for the information, such as an imminent threat to health or safety, the requester is a member of the news media and there is an urgent need to inform the public, or there is a potential loss of substantial due process rights. The IRS must process expedited re- quests within 10 business days of receipt. Reg. §601.702(c)(6).
40 Reg. §601.702(c)(10).
41 See 5 USC §552(a)(4)(B); Reg. §§601.702(c)(10)
(iii), (c)(13).
42 5 USC §552(a)(4)(E); M.E. Batton, CA-5, 2013-1
ustc ¶50,391, 718 F3d 522, 526.
22 Id., at 537. 23 Id., at 539.
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