**CHAPTER 400 - INVESTIGATIONS**

**(400)-310** **[Federal Tort Claims Investigations]{.underline}**

310.1 [Overview.]{.underline}

This Section includes the following information related to
investigations of tort claims:

-   [Definitions of Terms](#DefinitionOfTerms)

-   [Purpose for Tort Investigations](#PurposeofTortInvestigations)

-   [Criteria for Conducting Tort
    Investigations](#CriteriaforConductingTortInvestigations)

-   [Initiating Tort Investigations](#InitiatingTortInvestigations)

-   [Investigative Procedures](#InvestigativeProcedures)

-   [Discontinuing Tort Investigations](#DiscontinuingInvestigation)

-   [Report of Investigation](#ROI)

TIGTA-Office of Investigations (OI) conducts all tort investigations of
accidents involving TIGTA or Internal Revenue Service (IRS) employees or
activities on official business. Tort claims are considered
administrative cases and are investigated by Special Agents (S/A\'s).

310.1.1 [Acronyms
Table.](../../acronyms-table/acronyms-table.doc#AcronymsTable)

310.2 []{#DefinitionOfTerms .anchor}[Definitions of Terms.]{.underline}

Certain terms have specific meaning within the scope of tort
investigations. They are defined in the following text.

310.2.1 [Tort Defined.]{.underline} A tort is an offense against an
individual, as opposed to a crime, which is an offense against the
state. To be a tort, the act must directly or indirectly cause injury to
a person, or his/her property or reputation. For the purposes of Chapter
400 of the TIGTA Operations Manual, a tort is defined as the negligent
or wrongful act or omission of any TIGTA or IRS employee while acting in
the scope of employment.

310.2.2 [Tort Claim Defined.]{.underline} For the purposes of tort
investigations conducted

by TIGTA-OI, a tort claim refers to either:

-   An administrative claim for compensation filed by or on behalf of
    the party claiming to have suffered injury or damage with the agency
    whose employee allegedly caused injury or damage

-   A suit for damages filed in U.S. District Court by the party
    claiming to have suffered injury or damage filed against the agency
    and/or its employee alleged to be responsible

Most tort claims against the government are the result of vehicle
accidents.

310.2.3 [Federal Employee Defined.]{.underline} The term "federal
employee" includes employees of any federal agency and persons acting on
behalf of a federal agency in an official capacity, whether with or
without compensation.

Federal employees not on official duty or acting outside the scope of
their employment are considered non-federal persons.

310.3 []{#PurposeofTortInvestigations .anchor}[Purpose of Tort
Investigations.]{.underline}

TIGTA-OI conducts tort investigations to establish the facts of
potential tort claims. This information is used for one or both of the
following criteria:

-   To defend the government against claims for personal injury, death,
    or property loss or damage caused by the negligence, wrongful act or
    omission of an employee acting within the scope of employment

-   To aid in the prosecution of government claims arising from
    incidents involving TIGTA or IRS employees or activities

310.4 []{#CriteriaforConductingTortInvestigations .anchor}[Criteria for
Conducting Tort Investigations.]{.underline}

TIGTA-OI conducts an investigation when:

-   Specifically requested by competent authority, including the IRS
    Office of Chief Counsel (OCC)

-   A non-federal person suffers personal injury or death resulting from
    an accident involving TIGTA or IRS activities

310.4.1 [Enforcement Action Deaths or Injuries.]{.underline} TIGTA-OI
will not normally conduct tort investigations involving the death or
injury to violators or other non-federal persons that occur during
enforcement activities if another law enforcement agency conducts an
investigation adequate to protect the government\'s interest.

310.4.2 [Investigations of Property Damage Only.]{.underline} TIGTA-OI
does not normally conduct tort investigations in cases of property
damage only. However, the IRS OCC may request that TIGTA-OI investigate
a specific issue if IRS OCC is unable to obtain the information from
other sources.

310.5 []{#InitiatingTortInvestigations .anchor}[Initiating Tort
Investigations.]{.underline}

TIGTA-OI initiates and assigns tort investigations according to their
priority and the need to protect the government\'s interest.

Use the Performance and Results Information System (PARIS) Profile
"Non-Criminal" and violation code 980 -- Tort Claim.

310.5.1 [Initiation Procedures.]{.underline} TIGTA may learn of an
accident requiring a tort investigation through one of the following:

-   Oral or written notification from the involved employee\'s
    supervisor

-   A request from IRS OCC

-   A request from other IRS officials

The person or office requesting the investigation submits a memorandum
requesting the investigation and submits the applicable forms. The
following forms may be applicable:

-   [Motor Vehicle Accident
    Report](http://contacts.gsa.gov/webforms.nsf/0/9452CD3A30CB625F85256B7D00729048/$file/sf91.pdf)
    (Standard Form 91)

-   [Federal Employee\'s Notice of Traumatic Injury and Claim for
    Continuation\
    of
    Pay/Compensation](http://www.dol.gov/esa/regs/compliance/owcp/ca-1.pdf)
    (Form CA-1)

-   [Statement of
    Witness](http://contacts.gsa.gov/webforms.nsf/0/F648AFE5DA88F0E285256B7D0072BACD/$file/sf94.pdf)
    (Standard Form 94)

-   [Data Bearing Upon Scope of Employment of Motor Vehicle
    Operator](http://www.nps.gov/renew/OF26.pdf) (Optional Form 26)

-   [Claim for Damage, Injury or
    Death](http://contacts.gsa.gov/webforms.nsf/0/635588D718E338F385256B1B007FBE64/$file/sf95.pdf)
    (Standard Form 95)

310.5.2 [Title of Investigation.]{.underline} Title a tort investigation
in the name of the non-federal or federal person involved.

310.5.3 [Priority of Investigation.]{.underline} It is particularly
important to promptly initiate and complete a tort investigation
whenever a lawsuit has been filed or is expected to be filed against the
government. A lawsuit can be expected in any instance that involves the
death or serious physical injury of one or more persons.

If the tort investigation involves the death or serious physical injury
of one or more persons, the Special Agent-in-Charge (SAC)-Field Division
where the incident occurred will immediately initiate the tort
investigation and assign the case to an experienced S/A.

If the tort investigation does not involve the death or serious physical
injury of one or more persons, the SAC will prioritize the tort
investigations based on:

-   The severity of injuries resulting from the accident

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-   Any indications of negligence by federal employees

-   Likelihood of future claim(s) for damages

If there are minor injuries and an immediate investigation is not
necessary, Standard Form 94 may be used as a correspondence inquiry
instead of an investigation. However, the S/A will still prepare a
Report of Investigation (ROI) (TIGTA Form OI 2028). See text
[310.8](#ROI) for additional details related to ROI's.

If the SAC determines an investigation is not warranted, he/she will
discuss the matter with the appropriate IRS official.

310.5.4 [Notification of Case Initiation.]{.underline} TIGTA-OI will
notify the IRS OCC-General Legal Services (GLS) that TIGTA-OI has
initiated a tort investigation.

310.6 []{#InvestigativeProcedures .anchor}[Investigative
Procedures.]{.underline}

Review the documents provided by the TIGTA or IRS employee or supervisor
when the case is initiated. Secure all available information concerning:

-   The circumstances of the accident

-   The duty status of the employee at the time of the accident

-   The damage or injuries resulting from the accident

310.6.1 [Privacy Act Requirement.]{.underline} At the beginning of an
interview with the subject of a tort investigation, provide and explain
the appropriate Privacy Act notification as listed below. Document the
notification on Memorandum of Interview or Activity (TIGTA Form OI
2028-M).

  ---------------------------------- ------------------------------------
  **If the subject is\...**          **Then\...**

  An IRS or TIGTA employee           Give Privacy Act Notice 417,
                                     Employee Interviews.

  A non-employee                     Give Privacy Act Notice 415,
                                     Non-Employee Interviews Tort Claims.
  ---------------------------------- ------------------------------------

310.6.2 [Circumstances of the Accident.]{.underline} Obtain all
information possible about the circumstances of the accident. Secure
copies of the following documents, if available:

-   Police Report

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-   Contains information regarding witnesses and other leads

-   Shows citations issued; helps determine the party at fault

-   May include a sketch of the accident scene

-   Indicates any physical elements such as weather, road conditions,
    lighting, etc. which may have contributed to the accident

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-   Sketch of motor vehicle accident

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-   Indicate relative positions of all vehicles and pedestrians involved
    just before and just after collision

-   Label compass directions, streets and relevant objects

-   Indicate measurements

-   Show by dotted lines the course followed by each vehicle

-   If the police report sketch contains the above elements, an
    additional sketch is not needed

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-   Standard Form 91

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-   Normally sufficient as the employee\'s or non-employee\'s statement
    unless it conflicts with other statements or evidence

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-   Statements by involved parties and witnesses

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-   Obtain a signed statement if one is not included in the police
    report or other document

-   Encourage witnesses to submit Standard Form 94

-   Prepare Form OI 2028M, in connection with personal interviews

-   A copy of the employee\'s insurance policy and endorsements if
    employee was driving a privately owned vehicle (POV).

310.6.3 [Document Pertinent Physical Elements.]{.underline} Document any
physical elements that contributed to the accident or are at issue.
Obtain factors such as the weather, road conditions or lighting at the
time of the accident from the police report, local weather bureau or
witnesses. Include any physical changes to the accident scene since the
date of the accident.

310.6.4 [Obtain Photographs.]{.underline} If physical factors other than
the weather contributed to the accident such as trees obscuring stop
sign, secure appropriate photographs.

Always obtain photographs of the scene of non-motor vehicle accidents,
which result in personal injury or death.

Identify the photographs by:

-   Date and time

-   Subject

-   Photographer

-   Case number

-   Make and model of camera

-   Camera settings

-   Film data

310.6.5 [Condition of Involved Vehicles.]{.underline} Confirm that all
vehicles involved were in proper working order at the time of the
accident. The police report may indicate if a vehicle was not in good
operating condition.

Check involved government owned vehicles (GOV\'s) for proper maintenance
and servicing. The vehicle log maintained for each GOV and records kept
by IRS local management and or the Facilities Area Associate Director,
where the vehicle is located, are good sources for this information.

310.6.6 [Determining Duty Status of Employee.]{.underline} Determine if
the employee was acting within the scope of his or her employment.
Normally, an employee is considered to be acting within the scope of his
or her employment if one of the conditions below apply:

-   The employee\'s job assignment has regularly defined working hours
    and

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-   The accident occurred within those duty hours

-   The trip is related to official business

-   The employee traveled the most direct route between destinations

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-   The employee\'s job assignment requires irregular working hours and

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-   The accident occurred while conducting official business

-   The employee traveled the most direct route except for certain
    enforcement activities such as surveillance

-   The employee had specific or written permission to use the vehicle
    for such activities

Optional Form 26 helps determine if the employee was acting within the
scope of employment.

If the investigation discloses the employee was not acting within the
scope of employment, report this information immediately to the SAC.
Then consider initiating a separate investigation to address possible
misconduct issues.

310.6.7 [Determine Damage or Injuries.]{.underline} In investigations of
accidents resulting in property damages, personal injuries or death,
document as detailed below.

310.6.8 [Property Damage and Repairs.]{.underline} In the case of
property damage, secure the following information:

-   Complete description of damage

-   Summary of the estimated cost of repairs, furnished by a reputable
    contractor after personal examination

-   Any action taken by the responsible party\'s insurance company or
    any officials to settle the damages if a nonfederal person is liable
    for damages to government property

-   Photographs of property damage whenever they will assist in
    resolving conflicting testimony and estimates of damage that appear
    excessive

**Note:** When the cost of repairs appears to exceed the value of the
vehicle or any other damaged item, obtain an estimated value of the
vehicle or item from a reputable dealer.

310.6.9 [Personal Injury and Treatment.]{.underline} Determine the
extent of personal injury as soon as possible after the accident.
Sources of information to verify personal injury are:

-   Hospital records

-   Doctor\'s records

-   Statements of witnesses

-   Police report regarding first aid or obvious injuries

-   Records of paramedics or emergency personnel

Medical facilities may require written releases from injured persons. It
is usually not necessary to obtain medical information beyond the
initial injury and treatment stage, since the claimant generally
documents subsequent treatment during the claim process.

310.6.10 [Report of Death.]{.underline} If any deaths result from the
accident, obtain the following information:

-   Exact time and date of death

-   Place of death

-   Immediate cause of death

-   Copy of death certificate

-   Name, relationship, and address of all persons dependent in any
    degree upon the decedent at time of death

310.7 []{#DiscontinuingInvestigation .anchor}[Discontinuing Tort
Investigations.]{.underline}

Under certain circumstances, a tort investigation will be discontinued
before completing all investigative steps. Those circumstances are:

-   The investigation reveals misconduct by the employee.

-   The party at fault admits liability in writing.

The steps to be taken in each situation are listed below.

310.7.1 [Misconduct by Federal Employee.]{.underline} Discontinue the
tort investigation when the investigation reveals misconduct by the
federal employee.

-   Report the facts relevant to the accident in the tort investigation
    ROI.

-   Initiate and complete an Employee Investigation concerning the
    misconduct and report as a separate ROI. Refer to [Section
    280.5](../../400-280/chapter400-280.doc#InitiatingEmployeeInvestigations)
    of this Chapter for information on conducting Employee
    Investigations.

-   Prepare a cover memorandum when submitting the tort investigation
    ROI advising IRS OCC-GLS of the separate Employee Investigation

310.6.2 [Party at Fault Admits Liability.]{.underline} Discontinue the
tort investigation when the party at fault or the insurance company
admits liability in writing, and has made or will make full settlement.

The S/A will notify the Assistant Special Agent-in-Charge (ASAC) and
prepare the ROI including all the information available at the time of
discontinuance.

310.7.3 [Reporting a Discontinued Investigation.]{.underline} When a
tort investigation is discontinued, briefly summarize the reasons for
discontinuance in the ROI. Distribute the ROI in the same way as ROI\'s
of completed investigations.

310.8 []{#ROI .anchor}[Report of Investigation.]{.underline}

Prepare the ROI using the standard format outlined in [Section
250.7](../../400-250/chapter400-250.doc#ROI) of this Chapter.

Follow the investigative steps contained in text
[310.6](#InvestigativeProcedures) of this Section. Present the results
of the investigative steps and documentation as elements of the ROI in
the most logical order possible. Utilize the subheadings identified in
[Exhibit(400)-310.1](../../400-exhibits/exhibit400-310-1.doc).

310.8.1 [Office of Origin.]{.underline} Unless otherwise instructed, the
office of origin a tort investigation is the field division or
Headquarters office servicing the location of the accident. If the
subject of the investigation is a TIGTA employee, consult the
SAC-Special Inquiries and Intelligence Division (SIID).

310.8.2 [Distribution of Reports.]{.underline} Distribute copies of the
ROI as indicated below.

+---------------------------+------------------------------------------+
| **If\...**                | **Then\...**                             |
+---------------------------+------------------------------------------+
| The office of origin is a | 1\) Send the original ROI with original  |
| field division (IRS       | exhibits and two copies without exhibits |
| employee involved)        | to:                                      |
|                           |                                          |
|                           | IRS OCC GLS                              |
|                           |                                          |
|                           | Attn: IRS Claims Manager                 |
|                           |                                          |
|                           | 950 L'Enfant Plaza SW                    |
|                           |                                          |
|                           | Washington DC 20024                      |
|                           |                                          |
|                           | 2\) Send one copy with exhibits to       |
|                           | Complaint Management Team (CMT), Records |
|                           | Management and Control Section.          |
+---------------------------+------------------------------------------+
| **If\...**                | **Then\...**                             |
+---------------------------+------------------------------------------+
| The office of origin is   | 1\) Send the original report with        |
| SIID (TIGTA employee      | original exhibits and two copies without |
| involved)                 | exhibits to the TIGTA OCC and            |
|                           |                                          |
|                           | 2\) Send one copy with exhibits to CMT,  |
|                           | Records Management and Control Section.  |
+---------------------------+------------------------------------------+
| A GSA vehicle operated by | Send one additional copy of the report   |
| an IRS employee is        | without exhibits to:                     |
| involved                  |                                          |
|                           | IRS Chief, Facilities/Support Branch     |
|                           |                                          |
|                           | 1111 Constitution Ave. NW                |
|                           |                                          |
|                           | Washington DC 20224                      |
|                           |                                          |
|                           | IRS will provide the report to General   |
|                           | Services Administration (GSA).           |
+---------------------------+------------------------------------------+
| The tort claim was        | Send the original and two copies of the  |
| investigated for another  | ROI to CMT, Records Management and       |
| bureau                    | Control Section; or distribute as        |
|                           | requested by the other bureau.           |
+---------------------------+------------------------------------------+