Representation before the IRS · Related Issues

Freedom of Information Act (FOIA) requests

A FOIA request is the practical way to see what the IRS has: the examination file, the workpapers, the administrative record behind a determination. It is also a statute with hard edges. It reaches existing records and does not require the IRS to create one; it yields whatever is not covered by an exemption; and it is not a route around IRC § 6103, which is itself an exemption. Knowing what a request will and will not produce is most of the skill.

The rule

What the statute requires. Any request that “reasonably describes” the records and “is made in accordance with published rules stating the time, place, fees (if any) and procedures to be followed” is to be made promptly available (5 U.S.C. § 552(a)(3)).

Two consequences the IRS states plainly. A request for “all tax records pertaining to the requester” does not clearly define the records needed, and “will be returned without processing or the requester will be contacted to rescope the request” — better to ask for “my examination file for tax year 2019.” And the FOIA “only applies to existing records”; it does not require the IRS “to collect information not available, or to research or analyze data,” and the IRS “is not obligated to create a new record.”

Form and format. The form in which a record is kept does not affect its availability, and the IRS must provide a record in the form or format requested “if the record is readily reproducible by the agency in that form or format.”

What is published without asking. Section 552(a)(2) requires the IRS to make available for public inspection electronically: final opinions and orders in adjudicated cases; statements of policy and interpretations adopted but not published in the Federal Register; administrative staff manuals and instructions to staff that affect the public; records previously released that have been or are likely to be requested again, or that have been requested three or more times; and a general index of those categories. The IRS maintains a FOIA Library for this purpose.

Proving who you are. Because the records sought are usually the requester’s own, the IRS requires proof of identity — a hand-signed request (stamped and digital signatures “are unacceptable for establishing identity”) with a copy of photo identification bearing the signature; or a notarised statement; or a sworn statement under penalty of perjury meeting 28 U.S.C. § 1746. A business requester provides proof of entitlement as sole proprietor, partner, corporate officer or shareholder; a requester seeking a deceased person’s records provides proof of status as administrator, executor or trustee, or as an heir with a material interest.

The exemptions. See the figures table (5 U.S.C. § 552(b)). Exemption 3 is the one that matters most in tax: it incorporates other statutes that restrict availability, and the IRS’s own example of a qualifying statute is the provision governing returns and return information (IRC § 6103), under which “tax records may not be disclosed to any individual unless authorized.”

Partial records. See the figures table. This is the point most often misunderstood: an entire record is not exempt merely because part of it is (5 U.S.C. § 552(b), closing text).

The exclusions. See the figures table (5 U.S.C. § 552(c)). They are not exemptions; they permit the IRS to respond that there are no responsive records.

Timing. See the figures table for the IRS’s determination period and for the appeal window and its own deadline. If the IRS fails to comply with the time limits (Reg. § 601.702(c)(9), (10) or (11)(i)), a requester who satisfied the request requirements “shall be deemed to have exhausted administrative remedies,” and may sue in Federal District Court.

Current figures

How it works in practice

Scope the request or lose weeks. The most common failure is a request so broad it is returned unprocessed. Name the tax year, name the file, name the office. “The examination file, including revenue agent workpapers, for tax year 2023” is a request; “everything you have on my client” is a delay.

It reaches records, not answers. The IRS need not research, analyse, compile or create. A request asking why an adjustment was made will produce nothing; a request for the documents in which the examiner recorded the adjustment may produce a great deal. Convert the client’s question into a description of a document.

Exemption 3 plus § 6103 is the answer to most “can I get someone else’s file” questions. Returns and return information are protected by § 6103, § 6103 qualifies under Exemption 3, and the FOIA therefore does not open another taxpayer’s file. A representative asking for a related party’s return under FOIA is asking for something the statute forecloses.

Partial exemption means redaction, not refusal. Where part of a record is exempt, the reasonably segregable remainder must be released, with the deletions marked — and, where technically feasible, marked at the place in the record where they were made. A blanket refusal because “the file contains exempt material” is not a correct FOIA response, and it is worth appealing.

The exclusions look like a denial and are not one. Where an exclusion applies the IRS may state that no responsive records exist. That answer is consistent with records existing. It is also narrow: the exclusions apply only to information already otherwise exempt, and do not enlarge what may be withheld.

Identity proof is not a formality, and digital signatures fail. The IRS says stamped and digital signatures “are unacceptable for establishing identity.” A request emailed with a typed signature block will not be processed on that basis. Use a hand signature with photo ID, a notarised statement, or a § 1746 declaration — and note that the CAF Client Listing request accepts only the photo-identification route.

Non-compliance with the deadline is itself a remedy. Where the IRS misses the statutory time limits, the requester is deemed to have exhausted administrative remedies and may go to Federal District Court. That is worth knowing before a representative spends months chasing a request by telephone.

Look in the FOIA Library first. Records requested three or more times, and previously released records likely to be sought again, are published. So are staff manuals affecting the public and adopted statements of policy. Checking there costs nothing and sometimes ends the enquiry.

How this has changed

The proactive-disclosure rule now has a three-request trigger. Section 552(a)(2) requires publication not only of previously released records likely to be requested again but of records “requested three or more times.” That reading of the statute came in with the FOIA Improvement Act of 2016, and it is why checking the FOIA Library before filing is now worth the minute it takes.

The deliberative process privilege has a sunset. Exemption 5 covers inter-agency and intra-agency memorandums, “provided that the deliberative process privilege shall not apply to records created 25 years or more before the date on which the records were requested” (5 U.S.C. § 552(b)(5)). Material describing Exemption 5 as open-ended is pre-2016.

Exemption 3 now requires newer statutes to cite the paragraph expressly. A statute enacted after the OPEN FOIA Act of 2009 qualifies under Exemption 3 only if it “specifically cites to this paragraph” (§ 552(b)(3)(B)). Section 6103 long predates that and is unaffected, but the point matters when a newer confidentiality provision is asserted.

Electronic availability is the default for § 552(a)(2) material. Documents in those categories created on or after 1 November 1996 must be made available electronically. The IRS’s FOIA Library exists to satisfy that requirement.

Exam focus

Know that a request must reasonably describe the records, and that “everything about me” does not — it is returned or rescoped.

Know that the FOIA reaches existing records and never obliges the IRS to create one, research, or analyse.

Know the nine exemptions by subject, and in particular that Exemption 3 incorporates other statutes — with IRC § 6103 the tax example.

Know the segregability rule: a partly exempt record is released with deletions marked, not withheld entirely.

Know that the three exclusions let the IRS answer that there are no responsive records, and apply only to otherwise-exempt information.

Know the determination period and the appeal window, and that missing the statutory time limits means administrative remedies are deemed exhausted, opening Federal District Court.

Check yourself

1. Which is NOT one of the FOIA exemptions as the IRS states them? (A) Classified documents pertaining to national defense and foreign policy (B) Trade secrets and confidential commercial or financial information (C) Personal privacy (D) Investigative information Answer: D. The seventh exemption is stated as “law enforcement” — records or information compiled for law enforcement purposes, and only to the extent production would cause one of six specified harms. “Investigative information” is not how the exemption is framed, and the exemption is conditional rather than categorical.

2. Part of a requested record is exempt. What must the IRS do? (A) Withhold the entire record (B) Release the entire record (C) Release the reasonably segregable portions, indicating the deletions (D) Release the record only on appeal Answer: C. The amount deleted and the exemption relied on are indicated on the released record, and where technically feasible at the place of deletion.

3. A representative asks the IRS under FOIA to calculate how an adjustment was derived. What is the IRS obliged to do? (A) Perform the calculation (B) Nothing — the FOIA applies to existing records and does not require creating one (C) Refer the request to Appeals (D) Provide an estimate within 20 days Answer: B. The FOIA does not require the IRS to collect, research, analyse, or create a record.

4. Under which exemption does IRC § 6103 protect return information from a FOIA request? (A) Exemption 4, trade secrets (B) Exemption 6, personal privacy (C) Exemption 3, information exempt under other laws (D) Exemption 7, law enforcement Answer: C. Exemption 3 incorporates statutes that restrict availability, and the IRS names § 6103 as its example.

5. The IRS misses the statutory time limits on a properly made request. What follows? (A) The request is deemed granted (B) The requester is deemed to have exhausted administrative remedies and may sue in Federal District Court (C) The requester must re-file (D) Fees are waived Answer: B. Reg. § 601.702(c)(9), (10) and (11)(i) are the provisions whose breach produces deemed exhaustion.