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October 1997 |
503
Disclosure
"Disclosure" is defined in 26 U.S.C. §
6103(b)(8) as "the making known to any person
in any manner whatever a return or return
information." The breadth of this definition
invalidates a number of prior access procedures. For
example, upon inquiry by the appropriate Division,
Although the definition of disclosure does not
appear to admit many exceptions, the return to the
supplier of information supplied to
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October 1997 |
505
Access to Returns and Return Information
Section 6103(i) of Title 26 of the United States
Code sets forth the conditions which govern
Disclosure of tax returns and taxpayer return
information must be secured through the issuance of
an ex parte order by a federal district judge or
magistrate judge under 26 U.S.C. § 6103(i)(1). See
this Manual
at 506. Such orders automatically include
return information other than taxpayer return
information, i.e., information about a taxpayer from
a third party. Thus, when filing an application
under 26 U.S.C. § 6103(i)(1), it is not necessary
to make a separate request under 26 U.S.C. §
6103(i)(2) (as discussed at 507).
If, however, only return information other than
taxpayer return information is sought, it may be
obtained pursuant to a written request under 26
U.S.C. § 6103(i)(2). See this Manual
at 507.
Section 6103(i)(3) of Title 26 authorizes
Section 6103(i)(4) of Title 26 governs the use of
information obtained under 26 U.S.C. § 6103(i)(1),
(i)(2), or (i)(3) in judicial or administrative
proceedings. See this Manual
at 509. It should be noted, however,
that, although 26 U.S.C. § 6103(i)(4) authorizes
use in civil forfeitures related to the enforcement
of federal criminal statutes, this use alone does
not authorize disclosure under 26 U.S.C. §
6103(i)(1) or (i)(2). Thus, caution should be
exercised that any returns or return information
needed for a civil forfeiture are obtained under the
appropriate procedure before termination of the
criminal enforcement proceeding. Criminal
enforcement proceedings should not be initiated,
however, solely as a means of obtaining return
information which would otherwise not be available
for use in a civil forfeiture.
Section 6103(i)(5) of Title 26 governs the
disclosure of a return or return information for the
purpose of locating a fugitive from justice. See
this Manual
at 510.
Section 6103(i)(6) of Title 26 provides that the
Secretary shall not disclose any return or return
information under the specified paragraphs and
subparagraphs of 26 U.S.C. § 6103(i) if he/she
determines "that such disclosure would identify
a confidential informant or seriously impair a civil
or criminal tax investigation."
The Internal Revenue Service has offered the
services of the local District Disclosure Officer to
each United States Attorney for the purpose of
briefing the United States Attorney and his/her
assistants on the procedures to be followed in
obtaining returns and return information under the
revised statute. Each United States Attorney is
urged to respond to this offer.
In addition, the Criminal Division, through its
Office of Enforcement Operations, will be available
to lend assistance and answer questions. For such
assistance, call Special Counsel David Simonson at
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October 1997 |
506
Disclosure Under 26 U.S.C. § 6103(i)(1)
Section 6103(i)(1) of Title 26 authorizes
application for an ex parte order for the disclosure
of "any return or return information to
officers or employees of any federal agency who are
personally and directly engaged in" the
investigation, or preparation for prosecution, of
violations of specifically designated federal
criminal statutes other than ones involving tax
administration. The application must explain the
intended use.
Applications for the ex parte order authorized by
this paragraph may be authorized by: the Attorney
General, the Deputy Attorney General, the Associate
Attorney General, any Assistant Attorney General, a
United States Attorney, any special prosecutor
appointed under 28 U.S.C. § 593, or any attorney in
charge of a Criminal Division organized crime strike
force established pursuant to 28 U.S.C. § 510. It
is anticipated that most applications will be
authorized by United States Attorneys or Strike
Force Chiefs. See the list of forms in this Manual
at 514.
Prior to the submission of this application,
however, the responsible official should notify the
appropriate
1.
Assemble the requested information; and
2.
Make any appropriate determination
provided for in 26 U.S.C. § 6103(i)(6), (see
this Manual
at 511 regarding confidential informants
and impairment of investigations).
Applications may be submitted to either federal
magistrate judges or federal district court judges.
Applicants must demonstrate that:
1.
There is reasonable cause to believe
that a specific federal crime has occurred;
2.
There is reasonable cause to believe
that the tax information sought is relevant to the
offenses;
3.
The information will be used
exclusively in a federal criminal investigation or
proceeding concerning such act (except as provided
in 26 U.S.C. § 6103(i)(4), see this Manual
at 509; and
4.
The information cannot reasonably be
obtained from another source.
Language in the application and order should
track the statutory language as closely as possible.
Because 26 U.S.C. § 6103(i)(1) refers to disclosure
for the "enforcement of a specifically
designated federal criminal statute,"
applicants should list every statutory violation for
which "reasonable cause" exists.
Applicants should file simultaneously with the
application a motion requesting the court to seal
the application and its order granting or denying
the application. United States Attorneys should
notify the Internal Revenue Service whenever a
motion to seal is granted, and whenever the records
are subsequently unsealed. Such motions are normally
not necessary when an applicant determines (in
consultation with
As noted in this Manual
at 605, 26 U.S.C. § 6103(i)(1)
applications now cover return information other than
taxpayer return information (as well as all return
and taxpayer return information). Therefore, when
such an application has been made, it is not
necessary to make a separate 26 U.S.C. § 6103(i)(2)
request for return information other than taxpayer
return information.
Disclosures under this paragraph are limited by
the restrictions in 26 U.S.C. §
6103(i)(6)(confidential informants; impairment of
investigations). See this Manual
at 511.
See this Manual
at 514 for sample applications.
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October 1997 |
Criminal
Resource Manual 506 |
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506 Disclosure Under 26 U.S.C. § 6103(i)(1)
Section 6103(i)(1) of Title 26 authorizes
application for an ex parte order for the disclosure
of "any return or return information to
officers or employees of any federal agency who are
personally and directly engaged in" the
investigation, or preparation for prosecution, of
violations of specifically designated federal
criminal statutes other than ones involving tax
administration. The application must explain the
intended use.
Applications for the ex parte order authorized by
this paragraph may be authorized by: the Attorney
General, the Deputy Attorney General, the Associate
Attorney General, any Assistant Attorney General, a
United States Attorney, any special prosecutor
appointed under 28 U.S.C. § 593, or any attorney in
charge of a Criminal Division organized crime strike
force established pursuant to 28 U.S.C. § 510. It
is anticipated that most applications will be
authorized by United States Attorneys or Strike
Force Chiefs. See the list of forms in this Manual
at 514.
Prior to the submission of this application,
however, the responsible official should notify the
appropriate
1.
Assemble the requested information; and
2.
Make any appropriate determination
provided for in 26 U.S.C. § 6103(i)(6), (see
this Manual
at 511 regarding confidential informants
and impairment of investigations).
Applications may be submitted to either federal
magistrate judges or federal district court judges.
Applicants must demonstrate that:
1.
There is reasonable cause to believe
that a specific federal crime has occurred;
2.
There is reasonable cause to believe
that the tax information sought is relevant to the
offenses;
3.
The information will be used
exclusively in a federal criminal investigation or
proceeding concerning such act (except as provided
in 26 U.S.C. § 6103(i)(4), see this Manual
at 509; and
4.
The information cannot reasonably be
obtained from another source.
Language in the application and order should
track the statutory language as closely as possible.
Because 26 U.S.C. § 6103(i)(1) refers to disclosure
for the "enforcement of a specifically
designated federal criminal statute,"
applicants should list every statutory violation for
which "reasonable cause" exists.
Applicants should file simultaneously with the
application a motion requesting the court to seal
the application and its order granting or denying
the application. United States Attorneys should
notify the Internal Revenue Service whenever a
motion to seal is granted, and whenever the records
are subsequently unsealed. Such motions are normally
not necessary when an applicant determines (in
consultation with
As noted in this Manual
at 605, 26 U.S.C. § 6103(i)(1)
applications now cover return information other than
taxpayer return information (as well as all return
and taxpayer return information). Therefore, when
such an application has been made, it is not
necessary to make a separate 26 U.S.C. § 6103(i)(2)
request for return information other than taxpayer
return information.
Disclosures under this paragraph are limited by
the restrictions in 26 U.S.C. §
6103(i)(6)(confidential informants; impairment of
investigations). See this Manual
at 511.
See this Manual
at 514 for sample applications.
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October 1997 |
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507
Disclosure Under 26 U.S.C. § 6103(i)(2)
The procedure established by this paragraph is to
be utilized only when the requester's sole interest
is return information other than taxpayer return
information. See this Manual
at 506.
Written requests for this kind of information may
be addressed to the appropriate
The uses authorized for such information are identical to those for
information obtained under 26 U.S.C. § 6103(i)(1)
and the request must explain the intended use. See
this Manual
at 506.
The request must set forth:
1.
The taxpayer's name and address;
2.
The taxable period(s) for which
information is sought;
3.
The statutory authority under which the
enforcement proceeding is being conducted; and
4.
The specific reason or reasons why the
information sought is relevant to the enforcement
proceeding.
Disclosures under this paragraph are limited by
the restrictions in 26 U.S.C. §
6103(i)(6)(confidential informants; impairment of
investigations). See this Manual
at 511.
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October 1997 |
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508
Disclosure Under 26 U.S.C. § 6103(i)(3)
This paragraph authorizes
If there is return information eligible for
disclosure under the above criteria, the taxpayer's
identity may also be disclosed. Disclosures under
this subparagraph are limited by the restrictions in
26 U.S.C. § 6103(i)(6)(confidential informants;
impairment of investigations). See this Manual
at 511.
In practice all 26 U.S.C. § 6103(i)(3)
disclosures are made to the Office of Enforcement
Operations (OEO) as the designated representative of
the Attorney General. OEO then refers the material,
as appropriate, within the Department of Justice
(including Offices of the United States Attorneys).
If, however, the information should go to another
agency (e.g., the Social Security Administration),
OEO must return it to
1.
Any federal or state law enforcement
agency to the extent necessary to apprise it of
"circumstances involving an imminent danger of
death or physical injury to any individual"; see
26 U.S.C. § 6103(i)(3)(B)(i), and
2.
Any federal law enforcement agency to
apprise it of "circumstances involving the
imminent flight of any individual from Federal
prosecution." See 26 U.S.C. §
6103(i)(3)(B)(ii).
Disclosures for these two purposes are not
limited by the restrictions in 26 U.S.C. §
6103(i)(6)(confidential informants; impairment of
investigations). See this Manual
at 511.
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October 1997 |
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509
Use of Certain Disclosed Returns and Return
Information in Judicial or Administrative
Proceedings, 26 U.S.C. § 6103(i)(4)
This paragraph governs disclosures which agencies
may make of returns or return information obtained
from
No finding of relevance is required for
disclosure of return information other than taxpayer
return information in any proceeding described above
when the
No return or return information is to be admitted
into evidence if
Admission into evidence in violation of this
prohibition does not constitute reversible error.
The Criminal Division has interpreted this
language to include use in any post-conviction
proceeding resulting from the original conviction.
The justifying theory is that enforcement continues
until the defendant is no longer subject to the
custody of the Attorney General. Thus, the United
States Parole Commission may use tax material in a
hearing to determine whether to terminate parole
supervision pursuant to 18 U.S.C. § 4211(c).
Moreover, such use is appropriate even though it may
not, technically, amount to an introduction
"into evidence." For example, tax material
may be provided to the court for its use in
sentencing pursuant to Rule 32(c) of the Federal
Rules of Criminal Procedure.
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October 1997 |
510
Disclosure to Locate Fugitives from Justice Under 26
U.S.C. § 6103(i)(5)
Any official who may authorize an application to
a district judge or magistrate-judge under 26 U.S.C.
§ 6103(i)(1) (see this Manual
at 506) may also authorize one under
subsection (i)(5) for the disclosure of returns and
return information to the extent necessary to locate
a fugitive. The advantage of proceeding under
subsection (i)(5), when appropriate, rather than 26
U.S.C. § 6103(i)(1) is that less is required to
justify granting the application. Applicants must
establish only that:
1.
A federal arrest warrant for commission
of a federal felony has been issued for the taxpayer
who is now a fugitive;
2.
The return or return information is
being sought solely for purposes of locating the
taxpayer; and
3.
There is "reasonable cause"
to believe that the return or return information
will further efforts to locate the taxpayer.
It should be noted that this paragraph authorizes
disclosure only of returns and return information of
the individual who is a fugitive.
Disclosures under this paragraph are limited by
the restrictions in 26 U.S.C. §
6103(i)(6)(confidential informants; impairment of
investigations). See this Manual
at 511.
See this Manual
at 520 for sample application to be used
when requesting returns and return information to
locate a fugitive from justice pursuant to 26 U.S.C.
§ 6103(i)(5).
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October 1997 |
511
Restrictions on Disclosures, 26 U.S.C. § 6103(i)(6)
This paragraph prohibits
These restrictions are administered solely by
The exception to their application is an
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October 1997 |
512
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,
Under either 26 U.S.C. § 6103(i)(1) or (i)(2),
communication between a prosecutor and
Absent a 26 U.S.C. § 6103(i)(1) court order or a
26 U.S.C. § 6103(i)(2) request,
Under 26 U.S.C. § 6103(i)(3)(A), 26 U.S.C. §
6103 material may be disclosed by
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 investigative leads calling for an
immediate response by law enforcement authorities,
and thus communications between
Under 26 U.S.C. § 6103(k)(6), 26 U.S.C. § 6103
material may be disclosed to a prosecutor by an
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October 1997 |
513
Utilization of
IRS
Personnel
An
The prosecutor seeking such
1.
A request for the assistance of
2.
Reliance on
3.
Use of
Examples of situations in which the prosecutor
might seek
1.
An investigation involving political
corruption centers around a corporate bookkeeping
system suspected of containing camouflaged payoff
entries; and
2.
An informant wishes to provide evidence
of a non-tax crime but refuses to deal with anyone
other than a trusted
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October 1997 |
9-13.100
Out of Court Identification Procedures
9-13.200
Communications with Represented Persons
9-13.300
Polygraphs -- Department Policy
9-13.400
News Media Subpoenas -- Subpoenas for News Media
Telephone Toll Records -- Interrogation, Indictment,
or Arrest of Members of the News Media
9-13.410
Guidelines for Issuing Grand Jury or Trial Subpoena
to Attorneys for Information Relating to the
Representation of Clients
9-13.420 Searches of Subject Attorneys' Offices
9-13.500
International Legal Assistance
9-13.510
Obtaining Evidence Abroad -- General Considerations
9-13.512 Intended Use of the Evidence
9-13.514
Time Required
9-13.516
Cost of Obtaining Evidence
9-13.520
Methods of Obtaining Evidence from Abroad
9-13.525
Subpoenas
9-13.526
Forfeiture of Assets Located in Foreign Countries
9-13.530
Special Considerations -- Translations
9-13.534
Foreign Travel by Prosecutors
9-13.535
Depositions
9-13.540
Assisting Foreign Prosecutors
9-13.600
Use of Hypnosis
9-13.800
Access to and Disclosure of Financial Records
9-13.900
Access to and Disclosure of Tax Returns in a Non-tax
Criminal Case
9-13.100
Out of Court Identification Procedures
See the Criminal
Resource Manual at 238 et seq. for a
discussion of the law on lineups and showups,
photographic lineups, fingerprinting, handwriting,
voice exemplars and voice prints and other physical
evidence issues.
9-13.200 Communications with Represented Persons
Department attorneys are governed in criminal and
civil law enforcement investigations and proceedings
by the relevant rule of professional conduct that
deals with communications with represented persons.
28 U.S.C. Section 530B. In determining which rule of
professional conduct is relevant, Department
attorneys should be guided by 28 C.F.R. Part 77
(1999). Department attorneys are strongly encouraged
to consult with their Professional Responsibility
Officers or supervisors—and, if appropriate, the
Professional Responsibility Advisory Office—when
there is a question regarding which is the relevant
rule or the interpretation or application of the
relevant rule. See also the Criminal
Resource Manual at 296 through 298
9-13.300 Polygraphs -- Department Policy
The Department opposes all attempts by defense
counsel to admit polygraph evidence or to have an
examiner appointed by the court to conduct a
polygraph test. Government attorneys should refrain
from seeking the admission of favorable examinations
that may have been conducted during the
investigatory stage for the following reasons.
Though certain physiological reactions such as a
fast heart beat, muscle contraction, and sweaty
palms are believed to be associated with deception
attempts, they do not, by themselves, indicate
deceit. Anger, fear, anxiety, surprise, shame,
embarrassment, and resentment can also produce these
same physiological reactions. S. Rep. No. 284, 100th
Cong., 2d Sess. 3-5 (1988). Moreover, an individual
is less likely to produce these physiological
reactions if he is assured that the results of the
examination will not be disclosed without his
approval. Given the present theoretical and
practical deficiencies of polygraphs, the government
takes the position that polygraph results should not
be introduced into evidence at trial. On the other
hand, in respect to its use as an investigatory
tool, the Department recognizes that in certain
situations, as in testing the reliability of an
informer, a polygraph can be of some value.
Department policy therefore supports the limited use
of t he polygraph during investigations. This
limited use should be effectuated by using the
trained examiners of the federal investigative
agencies, primarily the FBI, in accordance with
internal procedures formulated by the agencies. E.g.,
R. Ferguson, Polygraph Policy Model for Law
Enforcement, FBI Law Enforcement Bulletin,
pages 6-20 (June 1987). The case agent or prosecutor
should make clear to the possible defendant or
witness the limited purpose for which results are
used and that the test results will be only one
factor in making a prosecutive decision. If the
subject is in custody, the test should be preceded
by Miranda warnings. Subsequent admissions or
confessions will then be admissible if the trial
court determines that the statements were voluntary.
Wyrick v. Fields, 459
See the Criminal
Resource Manual at 259 et seq. for a
discussion of case law on polygraph examinations.
9-13.400 News Media Subpoenas -- Subpoenas for News Media Telephone
Toll Records -- Interrogation, Indictment, or Arrest
of Members of the News Media
Procedures a