**CHAPTER 400 -- INVESTIGATIONS**

**(400)-70** **[Disclosure Authority]{.underline}**

70.1 [Overview.]{.underline}

This section includes instructions and procedures for TIGTA-Office of
Investigations (OI) employees concerning the following:

-   [[]{#DisclosuresbySAs .anchor}Authorized Access and Disclosure by
    TIGTA Special Agents](#DisclosuresbySAs)

-   [Disclosure Authority under 26 U.S.C. § 6103](#DA_Under26USC6103)

-   [Disclosure Authority under the Privacy Act](#DA_UnderPrivacyAct)

-   [[]{#ProsecutiveReferrals .anchor}Prosecutive
    Referrals](#ProsecutiveReferrals)

-   [Investigative Referrals to a Law Enforcement
    Agency](#InvestigativeReferrals_LEAgency)

-   [Joint Investigations](#JointInvestigations)

-   [Accounting for Disclosures](#AccountingforDisclosures)

70.1.1 [Acronyms
Table](../../../../../../../../I:/chapter400-inv/acronyms-table/acronyms-table.doc#Intro11)[.]{.underline}
[]{.mark}

70.2 [Authorized Access and Disclosure by TIGTA Special Agents
(S/A's)]{.underline}

Chapter 700 of the TIGTA Operations Manual [Sections
50](../../../../../../../../imds-temp/chapter700-counsel/700-50/700-50.doc)
and
[70](../../../../../../../../imds-temp/chapter700-counsel/700-70/700-70.doc)
discusses [26 U.S.C. §
6103](http://www4.law.cornell.edu/uscode/26/6103.html) and the Privacy
Act, [5 U.S.C. § 552a](http://www4.law.cornell.edu/uscode/5/552a.html).
Both of these manual sections provide a discussion of the authority to
access and disclose information protected by § 6103 and/or the Privacy
Act.

For the purposes of § 6103 and/or the Privacy Act, investigations
performed by TIGTA can be divided into the following three (3)
categories:

-   Title 26 Tax Administrative Investigations

-   Non-Title 26 Tax Administration Investigations

-   Other Investigations (Non-Tax Administration)

Each category of investigation identified above carries with it unique
rules related to an S/A's authority to access or disclose information
protected by § 6103 and/or the Privacy Act. S/A's must understand these
rules to avoid an unauthorized access (UNAX) or disclosure of protected
information in violation of the law.

70.2.1 [Category I -- Title 26 Tax Administration
Investigations.]{.underline} In this category, the allegation being
investigated by TIGTA is a violation of a criminal or civil provision of
the Internal Revenue Code, Title 26 of the United States Code. Examples
of this category include allegations of violation of [26 U.S.C. §
7212](http://www4.law.cornell.edu/uscode/26/7212.html), [26 U.S.C. §
7213](http://www4.law.cornell.edu/uscode/26/7213.html), [26 U.S.C. §
7213A](http://www4.law.cornell.edu/uscode/26/7213A.html), [26 U.S.C. §
7214](http://www4.law.cornell.edu/uscode/26/7214.html), and violations
of Section 1203(b)(8) and (b)(9) of [RRA
98](http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=105_cong_public_laws&docid=f:publ206.105),
and Section 1203(b)(6) of RRA 98 relating to violations of the Internal
Revenue Code. All Title 26 investigations are tax administration
investigations.

70.2.1.1 [Access to § 6103 Information in Category I
Investigations.]{.underline} S/A's conducting investigations of Title 26
tax administration allegations are only authorized to access tax
returns, Integrated Data Retrieval System (IDRS), or any other return
information if they have a need to know the information for use in the
Title 26 investigation.

[]{.mark}

70.2.1.2 [Disclosure Authority in Category I
Investigations.]{.underline} Information created or obtained during a
Title 26 investigation is the return information of the subject of the
investigation. Further, many Title 26 investigations will also contain
third party return information collected pursuant to the investigation,
e.g., UNAX or unauthorized disclosures. Thus, acknowledging even the
existence of an investigation into an alleged violation of the Internal
Revenue Code is a disclosure that must be authorized by § 6103. The
information collected during the investigation of an individual is also
subject to the provisions of the Privacy Act.

70.2.2 [Category II -- Non-Title 26 Tax Administration
Investigations.]{.underline} In this category, the allegation being
investigated is not a violation of Title 26, but the alleged violation
pertains to tax administration. Tax administration is defined in 26
U.S.C. § 6103 as the "administration, management, conduct, direction,
and supervision of the execution and application of the internal revenue
laws or related statutes." Not every investigation involving an Internal
Revenue Service (IRS) employee (IRSE) is a tax administration
investigation. Examples of tax administration investigations include
bribery of an IRSE (18 U.S.C. § 201), embezzlement of taxpayer
remittances (18 U.S.C. § 641), and violations of RRA 98 other than those
sections referenced above.

70.2.2.1 [Access to § 6103 Information in Category II
Investigations.]{.underline} S/A's conducting a tax administration
investigation are only authorized to access tax returns, IDRS, or any
other return information if they have a need to know the information for
use in the tax administration investigation.

70.2.2.2 [Disclosure Authority in Category II
Investigations.]{.underline} The confidentiality provisions of § 6103
apply to all tax returns, IDRS, and other return information obtained
during the tax administration investigation. The information gathered
during the tax administration investigation is also subject to
disclosure provisions of the Privacy Act.

70.2.3 [Category III -- Other Investigations (Non-Tax
Administration).]{.underline} In this category, the allegation under
investigation is not a violation of Title 26 and does not involve tax
administration. Examples of this category include workers' compensation
fraud, telemarketing fraud, mail fraud, bank fraud, wire fraud, false
claims, etc.

70.2.3.1 [Access to § 6103 Information in Category III
Investigations.]{.underline} S/A's conducting investigations that fall
within this category are not authorized to access tax returns, IDRS, or
any other return information. If there is a need for § 6103 protected
information in this type of investigation, S/A's may only obtain the tax
returns, IDRS, or other return information by utilizing the provisions
of § 6103(i), including obtaining an ex parte order.

70.2.3.2 [Disclosure Authority for Category III
Investigations.]{.underline} Generally, the confidentiality provisions
of § 6103 will not apply to this category of investigations because
S/A's are not authorized to access § 6103-protected information during
the investigation. In these circumstances, section 6103 only applies to
tax returns and return information that may have been obtained through
an ex parte order or other provision under § 6103(i). Information
gathered in the investigation is, however, subject to the disclosure
provisions of the Privacy Act.

  ----------------------- ------------------- ----------------------------
  **If \...**             **Access\...**      **Disclosure\...**

  Category I -- Title 26  May access tax      § 6103 non-disclosure rules
  Tax Administration      returns, IDRS, or   in effect for the returns,
  Investigation           return information  IDRS, and return
                          if need to know     information. Information
                                              collected is the subject's
                                              protected return
                                              information; may not
                                              disclose even the existence
                                              of the investigation.
                                              Privacy Act rules also
                                              apply.

  Category II --          May access tax      § 6103 non-disclosure rules
  Non-Title 26 Tax        returns, IDRS, or   in effect for the returns,
  Administration          return information  IDRS, and return information
  Investigation           if need to know     only; material must be kept
                                              confidential. Privacy Act
                                              rules also apply.

  Category III -- Other   May NOT access tax  § 6103 non-disclosure rules
  Investigations (Non-Tax returns, IDRS, or   do not generally apply;
  Administration)         return information  Privacy Act rules still
                                              apply for individuals.
  ----------------------- ------------------- ----------------------------

70.3 []{#DA_Under26USC6103 .anchor}[Disclosure Authority under 26 U.S.C.
§ 6103.]{.underline}

When information gathered by TIGTA is protected by the provisions of §
6103, TIGTA S/A's are authorized to make the following disclosures:

-   An S/A may provide returns and return information to another
    Treasury employee who has a need to know the information for tax
    administration purposes \[§ 6103(h)(1)\]

-   An S/A may provide returns and return information to the Department
    of Justice (DOJ) for use in a tax administration proceeding \[§§
    6103(h)(2) and (h)(3)\]

-   An S/A may disclose a taxpayer's returns and return information to
    persons designated by the taxpayer by written consent \[§ 6103(c)\]
    (See (700)-50.5.2.1)

-   An S/A may make an investigative disclosure of return information
    (not tax returns) during a tax administration investigation when
    necessary to obtain information not otherwise reasonably available
    \[§ 6103(k)(6)\] (See text [70.3.1](#InvestigativeDisclosure) of
    this Section)

-   An S/A may provide return information (not tax returns) to
    appropriate Federal or state officials in cases of imminent danger
    of death or physical injury, including threats against the President
    \[§ 6103(i)(3)(B)(i)\]

-   An S/A may disclose a taxpayer's returns and return information to
    persons as necessary in connection with the processing, storage,
    transmission, and reproduction of such returns and return
    information, the programming, maintenance, repair, testing, and
    procurement of equipment, and the providing of other services, for
    purposes of tax administration \[§ 6103(n)\]

70.3.1 []{#InvestigativeDisclosure .anchor}[Investigative
Disclosure.]{.underline} S/A's are authorized by § 6103(k)(6)
(investigative disclosure) to disclose return information to the extent
that such disclosure is necessary in obtaining information which is not
otherwise reasonably available. This includes disclosures of return
information to witnesses, as necessary. In addition, an investigative
disclosure of return information may be made when necessary to persons
possessing special expertise in areas such as handwriting analysis,
photographic development, sound recording enhancement, voice
identification, and polygraph. Section 6103(k)(6) permits the disclosure
of return information in the investigation process, **but does not
authorize the disclosure of returns themselves**.

When an investigative disclosure otherwise authorized under § 6103(k)(6)
involves either the disclosure of voluminous return information or a
long-term arrangement between TIGTA and the recipient of the disclosed
return information, S/A's should utilize a contractual agreement as
authorized under § 6103(n). Preparation of an (n) contract should be
coordinated with Operations Division, as needed.

70.3.2 [Investigative Discussions.]{.underline} Official matters should
not be discussed in public or within the hearing of the public. Further,
when a discussion of findings, theories, and plans relating to an
investigation is necessary in order to achieve a better understanding of
the investigation, the discussion should be limited to the TIGTA
personnel directly concerned. This does not preclude discussions among
S/A's concerning investigative techniques, sources of information, etc.

70.4 []{#DA_UnderPrivacyAct .anchor}[Disclosure Authority under the
Privacy Act.]{.underline}

When information gathered by TIGTA is protected by the provisions of the
Privacy Act, TIGTA S/A's are authorized to make the following
disclosures:

-   An S/A may make disclosures to U.S. Attorney's Offices (USAO's) for
    prosecution with Assistant Special Agent-in-Charge (ASAC)
    concurrence. See [Section
    250.13](../../../../../../../../I:/chapter400-inv/400-250/chapter400-250.doc#ReferringCasesCrimAction)
    of this Chapter.

-   An S/A may provide information to another Treasury employee who has
    a need to know the information in the performance of their duties.

-   An S/A may make oral disclosures to non-Treasury law enforcement
    officers (LEO's) during joint investigations for investigative
    purposes, if the LEO has a need for the information in order to
    pursue the investigation under his/her jurisdiction.

70.5 [Prosecutive Referrals.]{.underline}

The procedures for referrals of information for prosecutive
consideration depend on both the type of investigation and the intended
recipient of the information.

70.5.1 [Referrals to Federal Prosecutors.]{.underline} Under the
provisions of both 26 U.S.C. § 6103 and the Privacy Act, S/A's may, with
the concurrence of the ASAC or higher-level manager, make appropriate
referrals of cases to the USAO. Always document your discussions with
the USAO on the Chronological Case Worksheet (Form OI 6501). Information
regarding both informal and formal referral procedures is contained in
[Section
250.13](../../../../../../../../I:/chapter400-inv/400-250/chapter400-250.doc#ReferringCasesCrimAction)
of this Chapter.

70.5.2 [Referrals to State/Local Prosecutors.]{.underline} All referral
of written documents to the state/local prosecutor must be cleared
through the Disclosure Section of the Office of Chief Counsel (OCC). See
[Chapter 700, Chief Counsel, Section
70.5](../../../../../../../../I:/chapter700-counsel/700-70/700-70.doc#Referrals)
for the procedure to request TIGTA OCC to review and clear an
investigation for prosecutive referral to state/local prosecutors. TIGTA
OCC will prepare the necessary record of disclosure form for these
disclosures.

Prior to a formal (written) referral of assault cases, as well as
Category II and III investigations, the S/A must have an informal (oral)
discussion with the state/local prosecutor in order to determine if the
state/local prosecutor is interested in prosecuting a case with
circumstances similar to those of the present investigation, but in
hypothetical terms only. S/A authorization to have **informal** (oral),
hypothetical, discussions with a State/Local prosecutor is dependent on
the category of investigation (Category I, II, III).

70.5.2.1 [Referral to State/Local Prosecutors for Category I
Investigations.]{.underline} As discussed in [Chapter 700, Chief
Counsel, Section
50.2](../../../../../../../../imds-temp/chapter700-counsel/700-50/700-50.doc#Definitions),
in an investigation of a Title 26 violation, all information collected
during the investigation, including the Report of Investigation (ROI),
is the return information of the subject. Further, information collected
during many Title 26 investigations will also include the return
information of third parties, such as the information improperly
accessed or disclosed in UNAX and unauthorized disclosure cases.
Therefore, without a consent form signed by any applicable taxpayers,
the ROI generally cannot be referred to state/local officials for
prosecution, and S/A's cannot engage in oral discussions with
state/local prosecutors regarding prosecutive consideration.

**Note:** An exception to this rule may exist for assault cases in which
an individual has assaulted an IRSE because of the employee's position
with the IRS. If the USAO declines to prosecute such a case federally,
the case may, under certain circumstances, be referred to state or local
officials for prosecution. Consult with TIGTA OCC for guidance prior to
discussing assault investigations with a state prosecutor.

70.5.2.2 [Referral to State/Local Prosecutors for Category II
Investigations.]{.underline} Prior to the formal referral of a non-Title
26 tax administration investigation, the S/A should determine if the
state/local prosecutor is interested in prosecuting the case. See
[Chapter 700, Chief Counsel, Section
70.5](../../../../../../../../I:/chapter700-counsel/700-70/700-70.doc#Referrals).
This informal discussion is often referred to as a "hypothetical"
discussion. An S/A may not discuss tax returns and/or return information
during this discussion with the state/local prosecutor unless the S/A
has obtained a "Consent for Release of Tax Return and or Tax Return
Information" signed by all taxpayer(s) involved.

In addition, the S/A may not provide any information that would identify
the subject of the investigation during this informal discussion.

The S/A will be required to make an accounting for these "informal"
disclosures. See text [70.8](#AccountingforDisclosures) of this Section
regarding the accounting procedures.

70.5.2.3 [Referral to State/Local Prosecutors for Category III
Investigations.]{.underline} In a non-tax administration investigation,
the ROI will generally not contain any tax return and/or return
information unless the information has been obtained via ex parte order
or other provision in § 6103(i). Generally, information obtained through
the provisions of § 6103(i) cannot be referred to the state/local
prosecutors other than under the terms of the (i) order or with a
consent signed by all taxpayers whose return information is being
disclosed.

Prior to the formal referral, the S/A should determine if the
state/local prosecutor is interested in prosecuting the case. See
[Chapter 700, Chief Counsel, Section
70.5](../../../../../../../../I:/chapter700-counsel/700-70/700-70.doc#Referrals).
The TIGTA S/A can only discuss the substance of the investigation in
hypothetical terms during this informal referral, and cannot disclose
any information that would identify the subject.

70.6 []{#InvestigativeReferrals_LEAgency .anchor}[Investigative
Referrals to a Law Enforcement Agency.]{.underline}

In the course of an investigation, S/A's may develop information
regarding allegations within the investigative jurisdiction of another
law enforcement agency, both federal and/or state/local. Referral of
documents to another law enforcement agency must be referred through the
Disclosure Section of TIGTA's OCC. See [Chapter 700, Chief Counsel,
Section
70.5](../../../../../../../../I:/chapter700-counsel/700-70/700-70.doc#Referrals)
regarding Privacy Act Referrals, and [Chapter 700, Chief Counsel,
Section
70.5.1.1](../../../../../../../../imds-temp/chapter700-counsel/700-70/700-70.doc#Lawenforcement)
for procedures.

70.7 []{#JointInvestigations .anchor}[Joint Investigations.]{.underline}

TIGTA S/A's sometimes conduct investigations of subjects who have
allegedly violated a criminal statute that is also within the
investigative jurisdiction of another law enforcement agency. The
authority to investigate a case jointly with another law enforcement
agency is governed by the type of investigation.

70.7.1 [Joint Investigations Involving Category I and II
Investigations.]{.underline} When conducting a tax administration
investigation (Category I and II), TIGTA cannot work these cases jointly
unless an AUSA has approved the joint investigation. The S/A must ask
the AUSA "for approval under § 6103 to work the case jointly with"
another law enforcement agency in compliance with 26 CFR §
301.6103(h)(2) and [DOJ Tax Division Directive
86-59](http://www.usdoj.gov/tax/readingroom/criminal/taxc03.htm# 86-59).
Even with an AUSA's approval under the provisions of § 6103 to jointly
investigate a case, any disclosure of tax returns and/or return
information must be made to the AUSA, who then may disclose to the other
law enforcement agency. The AUSA may, however, designate another law
enforcement officer to be his/her recipient of the tax returns and/or
return information.

70.7.2 [Joint Investigations Involving Category III
Investigations.]{.underline} In Category III investigations, the TIGTA
S/A may work the case jointly with another law enforcement agency.
During the joint investigation, the TIGTA S/A may make oral disclosures
of information, but not documents, collected during the course of the
TIGTA investigation. Any referral of documents must be processed through
the Disclosure Section of TIGTA's OCC.

70.7.2.1 [Making the Disclosure.]{.underline} In instances when TIGTA
S/A's are investigating a non-tax administration violation (Category III
investigations), disclosure of information is subject to the provisions
of the Privacy Act. TIGTA S/A's may discuss the investigation with
another law enforcement officer when:

-   The LEO's office has jurisdiction over the statute involved

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-   The LEO has a need for the information in order to pursue the
    investigation under his/her jurisdiction

70.8 []{#AccountingforDisclosures .anchor}[Accounting for
Disclosures.]{.underline}

The accounting provisions of the Privacy Act require that TIGTA S/A's
make an accounting for all oral and written disclosures to AUSA's, state
or local prosecutors, and other LEO's. See [Chapter 700, Chief Counsel,
Section
70.6](../../../../../../../../I:/chapter700-counsel/700-70/700-70.doc#Accounting)
and the Privacy Act, [5 U.S.C. §
552a(c)](http://www4.law.cornell.edu/uscode/5/552a.html).

The accounting and safeguarding provisions of Title 26 require that
TIGTA S/A's make an accounting of disclosures made under 26 U.S.C. §
6103(i), Disclosure to Federal officers or employees for administration
of Federal laws not relating to tax administration. See [26 U.S.C.
§ 6103(p)(3)(A](http://www4.law.cornell.edu/uscode/26/6103.html)).

TIGTA S/A's are required to prepare the Record of Disclosure Privacy Act
of 1974 (TIGTA Counsel Form 5482), or document the Form OI 6501 with all
of the information requested on the Form 5482, in the following
instances:

-   Referral to AUSA. Document the disclosure on Form OI 6501, including
    a description of the information disclosed to the AUSA.

-   Imminent danger referral to Federal/State law enforcement agency.
    Document the disclosure on Form OI 6501, including the name, title,
    and address of the individual to whom the disclosure was made as
    well as description of the information disclosed to the Assistant
    U.S. Attorney (AUSA).

-   Pre-referral (informal) discussion with State/Local prosecutor in
    Category II investigations in which the S/A discloses tax return
    and/or return information of a taxpayer who has signed a consent
    form. Document the disclosure on Form OI 6501.

-   Disclosures made to another law enforcement agency during a joint
    investigation. Document disclosure on Form OI 6501 at the time of
    disclosure, including the name of the individual to whom information
    was disclosed and a description of the information disclosed.

The record of disclosure should be forwarded via e-mail to the **\*TIGTA
Inv Operations** Inbox. Operations Division will forward the record of
disclosure to TIGTA OCC\'s Disclosure Section, which is responsible for
maintaining the accounting of disclosures of returns and return
information. See [Chapter 700, Chief Counsel, Section
50.7](../../../../../../../../imds-temp/chapter700-counsel/700-50/700-50.doc#Accounting),
for additional details.