**CHAPTER 400 -- INVESTIGATIONS**

**(400)-210** **[Interviews]{.underline}**

210.1 [Overview.]{.underline}

Interviewing is an important tool in the investigative process. A
skillful interviewer can extract knowledge and facts of an event or
allegation, which can ultimately determine the guilt or innocence of the
person under investigation.

This section contains the following information regarding investigative
interviews conducted by TIGTA-Office of Investigations (OI):

-   [Employees to be Interviewed](#EmployeesInterviewed)

-   [Interviewing Complainants](#InterviewComplainants)

-   [Conducting the Interview](#ConductingInterview)

-   [Requirements of the Privacy Act of 1974](#ReqOfPrivacyAct)

-   [Requests for Legal Counsel at Interviews](#ReqLegalCounsel)

-   [Role of Attorney or Representative in TIGTA
    Interviews](#RoleAttnyRepInterviews)

-   [Interviews Requiring Disclosure of Tax Returns or Tax Return
    Information](#IntReqDisclTaxInfo)

-   [Affidavits and Statements](#AffidavitsStatements)

-   [Question and Answer Statements](#QandAStatements)

-   [Recording Employee Interviews](#RecordingEmployeeInterviews)

-   [Interviews Involving Criminal Matters](#InterviewInvCrimMatter)

-   [Arranging Employee Interviews](#ArrangingEmpInterview)

-   [Employee Refusal to Respond to
    Questioning](#EmployeeRefusesRespond)

-   [Interviewing Bargaining Unit Employees](#InterviewBUEmployees)

-   [Interviewing Non-Bargaining Unit
    Employees](#InterviewNonBUEmployees)

-   [Interviewing Non-Employees](#InterviewNonEmployees)

-   [Special Interview Situations](#SpecialInterviewSituations)

-   [Polygraph Examinations](#PolygraphExams)

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

210.2 []{#EmployeesInterviewed .anchor}[Employees to be
Interviewed.]{.underline}

The decision to interview or not interview an Internal Revenue Service
(IRS) employee who is the subject of an Employee Investigation should be
made on a case by case basis and consistent with the [Privacy
Act](http://www4.law.cornell.edu/uscode/5/552a.html). SAs should make
every effort to conduct an in person interview of an IRS employee who is
the subject or witness in an Employee Investigation.

If an extenuating circumstance exists, such as a cost prohibitive
geographical situation, consider conducting a telephonic interview of
the IRS employee, as appropriate. The decision to conduct a telephonic
interview must be documented in the Chronological Case Worksheet (Form
OI 6501).

For interviews regarding criminal violations, the Assistant U.S.
Attorney (AUSA) or appropriate Department of Justice (DOJ) official
should be consulted about interviewing the subject employee. See
[210.12](#InterviewInvCrimMatter) of this Section for interviews
involving criminal matters.

In interviewing employees, different guidelines apply based upon whether
the employee is classified as bargaining unit or non-bargaining unit.

210.2.1 [Employee Defined.]{.underline} Persons are considered employees
as long as they are listed in the current employment records of any IRS
personnel function, including the Office of IRS Chief Counsel,
regardless of leave status. The employment status may be:

-   Permanent Full-time

-   Interim

-   Temporary

-   Part-time

-   Seasonal

-   When actually employed (WAE)

Employees absent without leave or serving disciplinary suspensions
retain their employment status.

210.2.2. [Bargaining Unit Employees.]{.underline} An IRS employee is
considered to be a member of a bargaining unit if his/her position is
represented by the exclusively recognized labor organization, National
Treasury Employees Union (NTEU). Currently, NTEU represents all
professional and non-professional employees of the IRS, excluding all
employees of the Chief, Criminal Investigation; some employees of the
Office of Chief Counsel; employees of the Office of International
Operations assigned to overseas posts-of-duty; temporary employees with
no reasonable expectancy of continued employment; management officials,
supervisors, guards other than protective officers at the Martinsburg
Computing Center at Martinsburg, West Virginia; and employees described
in 5 U.S.C. § 7112(b)(2),(3),(4),(6), and (7).

An employee\'s employment and bargaining unit status may be determined
by contacting the IRS or by checking the Treasury Integrated Management
Information System.

A bargaining unit employee:

-   May request representation by NTEU in interviews;

-   May or may not be a dues-paying member of NTEU; or

-   May be temporarily assigned to perform duties of a non-bargaining
    unit position but is still considered a bargaining unit employee.

210.2.3 [Non-Bargaining Unit Employees.]{.underline} Non-bargaining unit
employees may be NTEU dues-paying members, but have no statutory right
to and are not entitled to NTEU representation in interviews.

210.3 []{#InterviewComplainants .anchor}[Interviewing
Complainants.]{.underline}

The interview of a complainant is often the investigator\'s first chance
to gather information concerning an allegation. Therefore, the
complainant interview must be as thorough and detailed as possible.
Every effort should be made to conduct the interview in person.

210.3.1 [General.]{.underline} When interviewing complainants, be
considerate, understanding, tactful and impartial, regardless of the
motive for the complaint. Inform complainants that the information will
be promptly evaluated.

210.3.2 [Advising Complainants of Investigative Status or
Results.]{.underline} If the complainant asks to be advised of the
status and/or results of the investigation, advise the complainant that
he/she may file a Privacy Act and/or Freedom of Information Act request
with the TIGTA Office of Chief Counsel, Disclosure Branch.

210.3.3 []{#EmployeeComplainantsConfidentiality .anchor}[Employee
Complainants -- Confidentiality.]{.underline} All IRS, Treasury, and
TIGTA employee complainants are presumed to have confidentiality under
Section 7(b) of the [IG
Act](http://www4.law.cornell.edu/uscode/html/uscode05a/usc_sup_05_5_10_sq2.html),
unless they specifically consent to allow TIGTA to disclose their
identities.

The Inspector General, or designee, has the authority to disclose the
identity of the employee if it becomes unavoidable during the
investigation. Certain disclosures are considered unavoidable, such as
disclosures to DOJ officials or, as necessary, disclosures to management
for administrative action.

The right of confidentiality should be explained to the employee;
however, it should never be expressed or implied that the individual's
identity will never be revealed. Efforts should always be made to
independently verify information provided by any individual to avoid
jeopardizing the confidentiality of the individual. Circumstances where
it may be necessary to disclose the employee's identity should be
discussed with the employee during the interview.

[TIGTA Delegation Order No.
26](../../../../../../../../I:/tigta-delegation-orders/igdo26.doc)
documents the levels of TIGTA management who are delegated the authority
to disclose the employee's identity when unavoidable during the course
of an investigation. For all investigative matters, this authority is
delegated to the Special Agent-in-Charge (SAC) or higher. Disclosures to
DOJ are further delegated to an Assistant Special Agent-in-Charge (ASAC)
or higher.

If it becomes necessary to release the name of an employee complainant
who has expressed a desire to maintain a right to confidentiality, the
circumstances of the release and the person authorizing the release
should be documented on the Form OI 6501. The circumstances should
include the reason, the individuals who are receiving the information
and the date of the release. The case agent should contact the employee
complainant prior to the release to advise him/her of the decision to
release his/her identity.

Employee complainants who express a desire to maintain confidentiality
are considered one-time sources. See [Section
150.5.2](../../../../../../../../I:/chapter400-inv/400-150/chapter400-150.doc#OneTimeSources)
of this chapter for policy on one-time sources. If an employee consents
to disclosure of his or her identity, such consent should be documented
on the Memorandum of Interview or Activity (Form OI 2028-M).

If an employee will be providing continuing information or services to
TIGTA, consider designating the employee as a confidential source. See
[Section
150.5](../../../../../../../../I:/chapter400-inv/400-150/chapter400-150.doc#InformantsConfidentialSources)
of this chapter for procedures on confidential sources.

Employee witnesses should not be designated as one-time sources
regarding information they submit in response to questions concerning an
official inquiry. Always include the identity of the employee witness in
the Form OI 2028-M. If information provided by a witness is relevant to
an eventual adjudication of the case, the Form OI 2028-M will be
included in the Report of Investigation (Form OI 2028). If the
information provided by the witness is not relevant to the
investigation, the Form OI 2028-M should not be included in the Form OI
2028. If the witness initiates a complaint regarding a different matter,
the employee is assumed to have confidentiality regarding that
information, and will be considered a one-time source if confidentiality
is not waived. This portion of the interview should be treated as a
separate interview for reporting purposes, including documentation of
whether the witness waived confidentiality.

210.4 []{#ConductingInterview .anchor}[Conducting the
Interview.]{.underline}

The attitude and demeanor of the investigator contribute immeasurably to
the success of an interview. The investigator must not exercise
authority in any manner that unnecessarily embarrasses or degrades any
employee, witness or complainant.

210.4.1 [Interview Notes.]{.underline} While it is important to have
good documentation of the information provided in an interview, it is
more important to obtain useful information in the first place. To
secure more complete information and to be able to evaluate the
interviewee for signs of stress or possible deception, look at
interviewees while asking them questions and during their responses.
Note their responses after they have finished speaking, or have a second
SA take notes so that the primary interviewer can observe the
interviewee.

Complete notes are essential to effective investigating and reporting.
Include the following in interview notes:

-   Case name and number;

-   Date, time and place of interview;

-   Complete identification of the person interviewed, including
    occupation, place of employment and residence;

-   Names of other persons present; and

-   Summary of the interview.

At the conclusion of the interview, the facts should be recapped with
the witness or subject.

SAs must retain all handwritten, audio, or otherwise recorded notes when
they interview witnesses or subjects of investigations. See [Section
250.5](../../../../../../../../I:/chapter400-inv/400-250/chapter400-250.doc#InvNotesWorkpapers)
of this chapter for more information regarding disposition of
investigative notes.

210.4.2 [Two Agent Interviews.]{.underline} Whenever practical, two
TIGTA SAs should participate in all interviews.

210.5 []{#ReqOfPrivacyAct .anchor}[Requirements of the Privacy Act of
1974.]{.underline}

The [Privacy Act of
1974](http://www4.law.cornell.edu/uscode/5/552a.html) imposes certain
restrictions on the government concerning collection of information
about individuals.

210.5.1 [Background Information.]{.underline} The Privacy Act requires
that each agency maintaining a system of records must inform each
individual whom it asks to supply information of the following:

-   Authority for solicitation of the information;

-   Whether disclosure of such information is voluntary or mandatory;

-   Principal purpose for which the information is intended;

-   "Routine use" of the information; and

-   Effects on the individual, if any, of not providing all or any part
    of the information

This information may be provided to the individual on the form, which
the agency uses to collect the information, or on a separate form that
can be retained by the individual.

See TIGTA's System of Records Notices, [68 FR
28046](http://ustreas.gov/foia/privacy/issuances/dopa.html) and [70 FR
71189](http://www.treasury.gov/foia/privacy/alt_do_311.html) for the
routine uses of the information maintained in its system of records.

**Note:** The Privacy Act allows agencies to exempt some records from
the access provisions. TIGTA's criminal investigative files have been
designated exempt from these provisions. See TIGTA's Systems of Record
Notice, [68 FR
28046](http://ustreas.gov/foia/privacy/issuances/dopa.html) and [Chapter
700, Section
70.4.1](../../../../../../../../I:/chapter700-counsel/700-70/700-70.doc#Accessandamendment)
of the TIGTA Operations Manual.

210.5.2 [Collection of Information from the Subject
Individual.]{.underline} Under the Privacy Act, SAs are obligated to
collect information "to the greatest extent practicable" directly from
the subject individual. Whether or not it is "practicable" to interview
the subject first necessarily depends upon the circumstances of each
case.

[The OMB Privacy Act Implementation Guidelines and
Responsibilities](http://www.whitehouse.gov/omb/inforeg/implementation_guidelines.pdf)
suggest several factors be evaluated in making a determination on
"practicability". These factors include:

-   The nature of the program (*i.e.,* where the kind of information
    needed can only be obtained from third parties such as
    investigations of possible criminal misconduct);

-   The cost of collecting the information from the subject as compared
    to the cost of collecting it from a third party;

-   The risk that the information to be collected from the third party,
    if inaccurate, could result in an adverse determination;

-   The need to ensure the accuracy of information supplied by an
    individual by verifying it with a third party; and

-   Once the agency has determined that it was not practicable to obtain
    the information from the subject, the provisions for verifying,
    whenever possible, the third-party information with the subject.

Courts have approved other considerations. For example, it would be
appropriate for an SA to contact third-party witnesses prior to
contacting the subject of the investigation where the subject is in a
position to intimidate third-party witnesses or alter evidence.

When seeking objective, unalterable information, the SA should interview
the subject first, particularly if the subject's ability to coerce a
third-party witness or alter evidence is practically nonexistent.

TIGTA procedures regarding collection of information in non-criminal
investigations have been disseminated to bargaining unit employees and
are available on the Internet at
[www.treas.gov/tigta/oi_interview.shtml](http://www.treas.gov/tigta/oi_interview.shtml),
paragraph 17.

210.5.3 [Documentation of Upfront Subject Interview
Decision.]{.underline} In each case, document on the Form OI 6501, why a
subject was or was not interviewed at the beginning of an investigation.

210.5.4 [Privacy Act Notices.]{.underline} The Privacy Act requires that
notification be given to interviewees in specific situations. At the
beginning of an interview of an individual who is the **subject of a
non-criminal investigation**, furnish the individual with one of the
following Privacy Act notices and explain the notice to him/her:

-   Privacy Act Notice 416, Tax Practitioner Interview, to all enrolled
    tax practitioners and unenrolled tax preparers who are subjects of
    tax practitioner investigations.

-   Privacy Act Notice 417, Employee Interview, to all employees who are
    subjects of employee investigations.

-   Privacy Act Notice 425, Non-employee Interview, to all non-employees
    who are subjects of non-employee investigations, other than enrolled
    tax practitioners and unenrolled tax preparers.

**Note:** The Privacy Act does not require notices be given when
interviewing subjects of investigations for ministerial purposes, such
as correction of financial statements or related employment application
forms.

See [Exhibit
(400)-210.2](../../../../../../../../I:/chapter400-inv/400-exhibits/exhibit400-210-2.doc)
for notices to provide during TIGTA interviews.

210.5.5 [Pledges of Confidentiality.]{.underline} Under the Privacy Act,
the identity of persons furnishing information in non-criminal
investigations will be protected only when those persons have been
furnished an expressed promise of confidentiality. See text
[210.3.3](#EmployeeComplainantsConfidentiality) of this Section for
information regarding employee complainant and employee witness
confidentiality under the IG Act.

The Privacy Act requires investigators to follow certain procedures when
granting a pledge of confidentiality to a third party witness who
furnishes information about the subject of an investigation. A pledge of
confidentiality is presumed not to exist in any instance where a witness
furnishes an affidavit.

Follow the procedures below when interviewing third party witnesses in
non-criminal investigations:

-   Explain that the information will be used in making an
    administrative determination;

-   Advise the witness that the subject may be confronted with the
    information and identity of the witness; and

-   If requested, grant the witness confidentiality where there is a
    compelling reason to do so.

To ensure compliance with this requirement, the Form OI 2028-M in
non-criminal investigations should contain a statement such as: \"The
witness was advised of the subject\'s right of access to the information
being furnished, including the identity of the witness under the Privacy
Act, and did/did not request a pledge of confidentiality.\" Except for
employee complainants, pledges of confidentiality may not be assumed. Do
not ask a source to request confidentiality.

**Note:** These instructions are not applicable to interviews in
criminal investigations.

210.6 []{#ReqLegalCounsel .anchor}[Requests for Legal Counsel at
Interviews.]{.underline}

210.6.1 [Criminal Investigations.]{.underline} In any criminal
investigation where the subject or suspect being interviewed requests
legal representation, stop the interview to afford the person the
opportunity to obtain counsel. If he/she later withdraws a request for
legal representation, conduct the interview and indicate on Form OI
2028-M that the subject stated that he/she did not want counsel present
in the interview.

In any criminal investigation in which an SA is aware that an employee
is represented by counsel, the SA should not initiate ex-parte
communication with the employee.

Once an individual has been arrested and has obtained counsel or has
been indicted, SAs will refrain from any ex-parte communication with the
individual without the consent or presence of the individual\'s counsel
unless the individual initiates communication with the SA, and the right
to legal representation is waived in writing by both the individual and
the individual's counsel.

TIGTA procedures regarding ex-parte communication have been disseminated
to bargaining unit employees and are available on the Internet at
[www.treas.gov/tigta/oi_interview.shtml](http://www.treas.gov/tigta/oi_interview.shtml),
paragraph 18.

210.6.2 [Non-Criminal and Non-Prosecution Investigations.]{.underline}
The presence of counsel in non-criminal or non-prosecution type
interviews is a privilege and not a right.

Generally, the request for counsel will be granted unless counsel\'s
presence will compromise the integrity of the investigation or impede
the interview. If the request is granted, afford the employee a
reasonable opportunity to obtain or consult proper counsel. The
interview will be deferred for this purpose, but not for an undue period
of time.

If the SA believes the presence of counsel will impede or compromise the
interview or investigation, the SA can deny or allow the presence of
counsel in the interview and can consult with his/her ASAC, SAC, and/or
the Operations Division, as appropriate. If denial of the presence of
legal counsel is justified, inform the employee that TIGTA determined
that the presence of counsel was not deemed in the best interests of the
government. No other reason for the denial will be given.

Thoroughly document cases where this privilege is not granted.

210.6.3 [Attorney Standing.]{.underline} Be aware of potential conflict
of interest problems that might be present with certain attorneys, and
take steps to have their presence denied, when appropriate. Counsel
retained by an employee for presence during a TIGTA interview must be an
attorney in good standing and will not be an IRS or other Federal
employee. See Outside Activities And Employment in [IRS Document
12011](http://publish.no.irs.gov/DOCS/PDF/35691D03.PDF), Plain Talk
About Ethics and Conduct, codified in the Treasury Supplemental
Standards of Ethical Conduct [5 CFR §
3101.106,](http://a257.g.akamaitech.net/7/257/2422/14feb20071500/edocket.access.gpo.gov/cfr_2007/janqtr/5cfr3101.106.htm)
and [18 U.S.C. §
205](http://www4.law.cornell.edu/uscode/18/205.html)**.**

210.6.4 [Non-Employee Requests for Counsel.]{.underline} A non-employee
who is the subject of a non-criminal investigation or is a third party
witness has no right to counsel accorded by law. If the non-employee
requests the presence of counsel or other representative at the
interview, decide whether to conduct or discontinue the interview.

210.7 []{#RoleAttnyRepInterviews .anchor}[Role of Attorney or
Representative in TIGTA Interviews.]{.underline}

In certain situations, NTEU representatives and private counsel may
represent employees during an interview. Regardless of the situation,
SAs are expected to control the interview. Representatives are expected
to abide by professional standards and not disrupt the proceedings.

210.7.1 [Private Attorneys.]{.underline} When the IRS employee being
interviewed is accompanied by private counsel, in both criminal and
non-criminal investigations, advise the attorney at the outset of the
interview of the following:

-   His/her function is strictly limited to giving advice to the
    employee;

-   The proceeding is an interview, designed to gather facts and the
    employee\'s responses only;

-   It is not a hearing; and,

-   Both the employee and the attorney must sign an Attorney
    Representation Agreement (Form OI 8115), when an interview involves
    the disclosure of information protected by 26 U.S.C. § 6103.

If the attorney refuses to abide by such limitations, the SA can consult
with the ASAC, as appropriate, and resume or terminate the interview.

210.7.2 [NTEU Representatives.]{.underline} The NTEU representative may
clarify questions and answers, but may not answer questions for the
employee. The employee must respond directly to questions. When a
bargaining unit employee being interviewed is accompanied by an NTEU
representative, whether an attorney or not, in both criminal and
non-criminal investigations, the role of the representative should
generally be limited to:

-   Clarifying the questions;

-   Clarifying the answers;

-   Assisting the employee in providing favorable or extenuating facts;

-   Suggesting other employees who may have knowledge of relevant facts;
    and

-   Advising the employee.

The role of the representative is not limited to the above. However, the
NTEU representative may not transform the interview into an adversarial
contest as stated in IRS Document 11678, [National Agreement Between IRS
and NTEU](http://publish.no.irs.gov/DOCS/PDF/32781H02.PDF), Article 5,
Section 4F.

210.7.3 [Disruption of Interview by NTEU Representative.]{.underline} If
an NTEU representative does not abide by the general guidelines during
an interview, take the following steps:

  -------------------------------- --------------------------------------
  If\...                           Then\...

  The representative attempts to   Cite the National Agreement Between
  disrupt, unnecessarily delay, or IRS and NTEU, including the provisions
  interfere with the orderly       above, and ask the representative to
  progress of the interview, or    conduct himself/herself within the
  attempts to turn the interview   confines of the agreement.
  into an adversarial contest      

  The representative continues to  Advise the employee that he/she must
  disrupt, delay, or interfere     respond to questions and that the
  with the interview               interview cannot continue with such
                                   disruption, delay, or interference.

  Such activity does not cease     Terminate the interview and report the
                                   results of the investigation to IRS
                                   management.
  -------------------------------- --------------------------------------

Pursuant to the [National Agreement Between IRS and
NTEU,](http://publish.no.irs.gov/DOCS/PDF/32781H02.PDF) Article 5,
Section 1D, in non-criminal investigations only, discussions between an
NTEU representative and an employee are considered confidential by IRS.

210.8 []{#IntReqDisclTaxInfo .anchor}[Interviews Requiring Disclosure of
Tax Returns or Tax Return Information.]{.underline}

26 U.S.C. § 6103 prohibits disclosure of tax returns and tax return
information except as authorized by the Internal Revenue Code. Certain
sections of 26 U.S.C. § 6103 (e.g., (k)(6) and (l)(4)) permit the
disclosure of tax return information in connection with investigations
or personnel matters. See [Section
70](../../../../../../../../I:/chapter400-inv/400-70/chapter400-70.doc)
of this chapter for more information on Disclosure Authority.

Contact the TIGTA Operations Division to resolve any questions regarding
disclosure laws.

210.8.1 [General.]{.underline} Interviews with employees may involve the
discussion of tax returns or tax return information. Ensure that
unauthorized disclosures do not occur in interviews with an employee who
is accompanied by an authorized representative that is not an IRS
employee.

In interviews in which employees are accompanied by attorneys, obtain
signatures from both the employee and the attorney on Form OI 8115 in
order to disclose tax information under [26 U.S.C. §
6103(l)(4)(A)](http://www4.law.cornell.edu/uscode/search/display.html?terms=6103&url=/uscode/html/uscode26/usc_sec_26_00006103----000-.html).

Follow the instructions in text
[210.11.1](../chapter400-210%20(Mar%2007).doc#RecordingEmployeeInterviews)
of this section if an employee requests to manually record such an
interview.

210.9 []{#AffidavitsStatements .anchor}[Affidavits and
Statements.]{.underline}

TIGTA reports must consist of facts supported by relevant evidence.
Evidence may consist of affidavits or statements made to SAs by
principals or third parties. These may be crucial in future hearings or
court actions.

210.9.1 [General.]{.underline} An \"affidavit\" is a written or printed
declaration of facts made voluntarily under oath before an officer
having authority to administer the oath.

A \"statement\" generally means the written declaration of matters of
fact, without the affiant\'s oath, but properly signed and witnessed.

In an affidavit or statement, include only information relevant to the
specific issue at hand.

If a witness or subject declines to provide an affidavit, document this
fact in the Form OI 2028-M.

210.9.2 [Authority to Take Affidavits.]{.underline} Questions may arise
about an SA's authority to administer oaths or request information under
oath. SAs may cite the sources shown in [Chapter 200, General
Management, Section
10.5](../../../../../../../../imds-temp/chapter200-general/200-10/chapter200-10.doc#Legislative),
of the TIGTA Operations Manual or [Treasury Order
115-01](http://www.ustreas.gov/regs/to115-01.htm).

210.9.3 [When to Take an Affidavit.]{.underline} The decision to request
an affidavit must be based on the facts in the individual investigation.
Secure an affidavit in any instance where statements by principals or
third parties should be obtained in writing. Affidavits or testimony by
investigators are frequently utilized when criminal or non-criminal
investigations are appealed. If affidavits were not taken during the
investigation, confusion may result over what was actually stated by the
principal or third party. An affidavit is strongly recommended in the
following situations:

-   Where the person interviewed has made an oral admission,
    particularly where he/she is the principal or subject of the
    investigation.

-   Confrontation-type interviews involving criminal matters where the
    subject or suspect agrees to an interview. See
    [210.12](#InterviewInvCrimMatter) of this section for interviews
    involving criminal matters.

-   Interviews of IRS employees in non-criminal investigations. See
    210.15.5 and 210.16.4 of this section for procedures regarding IRS
    employee interviews in non-criminal investigations.

-   Interviews of IRS employees in non-prosecution investigations. See
    210.15.4 and 210.16.2 of this section for procedures regarding IRS
    employee interviews in non-prosecution investigations.

-   Where the person interviewed has information pertinent to the
    investigation, and there is reason to believe he or she may change
    or retract his/her oral statement.

-   To record the statement of a material witness to allow the affiant
    to refresh his/her memory, if called to testify.

Limit the affidavit to the essential facts within the affiant\'s
knowledge, enabling the reader to draw his/her own conclusion.

210.9.4 \"[Negative Statements\" in Affidavits.]{.underline} At times,
TIGTA-OI is required to interview specific individuals and secure
affidavits from them. In some instances, this requires taking \"negative
statements,\" (i.e., statements from a witness that he/she did not do
something or did not observe something with regard to an incident or
allegation). Take a \"negative statement\" only to ensure that a witness
will not change his/her testimony or create a fictitious story which
differs from information furnished previously.

210.9.5 [Affidavit Format.]{.underline} Consider the following when
preparing or obtaining an affidavit:

-   The opening paragraph of an affidavit should clearly identify the
    affiant and the SAs taking the affidavit.

-   The concluding paragraph should show that the affiant read,
    understood and voluntarily signed the affidavit without duress,
    reward or promise of reward.

-   One or more witnesses should attest to the signing of the affidavit
    by placing their signatures under the appropriate heading.

-   The affidavit should contain only statements on matters directly
    bearing on the issues.

-   Prepare separate affidavits when the affiant is relating criminal or
    ethics and conduct violations on the part of more than one
    individual.

-   When securing an affidavit, avoid including prejudicial matters in
    any case that may be referred for prosecution. For example, if a
    principal confesses to a specific criminal act, it may be considered
    prejudicial in later court action if the affidavit showing this
    admission also contains an admission of acts constituting ethics and
    conduct violations which are not relevant to the court action.
    Obtain separate affidavits in such situations.

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-   When an employee, who is a witness, is reluctant to furnish his/her
    residence address, instead insert his/her office address in the
    affidavit.

210.9.6 [Affidavits in Criminal Cases.]{.underline} In a criminal case,
the affidavit should include, when applicable:

-   That the affiant was advised of his/her rights; or,

-   That the affiant was assured that his/her truthful answers would not
    be used against him/her in a criminal prosecution, if prosecution
    was declined.

210.9.7 [Refusal to Sign Affidavit.]{.underline} In any case where the
person interviewed has willingly responded to questions but refuses to
sign the affidavit, note the refusal on the affidavit. Also note any
verbal confirmation by the person interviewed regarding the accuracy of
the affidavit.

210.9.8 [Suggestions for Taking Affidavits.]{.underline} It is generally
preferable to have an affidavit written by the affiant in the words of
the affiant.

Prior to signing the affidavit, have the affiant sign each page and
initial each correction.

210.9.9 [Handling Special Situations with Affidavits.]{.underline} In
some cases, the affiant may be unable to write or read the affidavit for
him/herself, or other special circumstances may arise with regard to an
affidavit. Use the following guidelines in handling special situations:

  -------------------------------- --------------------------------------
  If\...                           Then\...

  The SA is required to write the  The full content of the affidavit
  affidavit himself/herself        should be read by the affiant prior to
                                   signing it.

  The affiant declines to read it  The SA will read it to him/her.

  The affiant is illiterate        The SA will read the contents of the
                                   affidavit to him/her in the presence
                                   of a witness. Note this fact on the
                                   last page of the affidavit.

  An employee is interviewed and   Upon request, give him/her a copy of
  furnishes a signed affidavit or  the signed affidavit or statement. Do
  statement                        not furnish a copy of an affidavit
                                   unless the affiant has signed it.

  The witness wishes to retract or Ask him/her to furnish a supplemental
  make a major change in an        statement or affidavit.
  affidavit or statement which     
  he/she has already submitted     
  -------------------------------- --------------------------------------

210.9.10 [Affidavits from Employee Complainants.]{.underline} Requesting
affidavits from IRS employees who are complainants will depend on the
circumstances. This may have an inhibiting effect upon employees
bringing information to TIGTA-OI. If it is determined that the
information should be supplied in writing, consider taking a statement
rather than an affidavit, thereby eliminating the need for administering
the oath, which might be inhibiting. Do not request an affidavit from an
IRS employee complainant who has not waived confidentiality. Do not ask
complainants to submit affidavits except in unusual circumstances.

210.10 []{#QandAStatements .anchor}[Question and Answer
Statements.]{.underline}

Question and answer statement (Q & A) should be used only under
circumstances where the use of a narrative affidavit or statement is
clearly impractical.

Q & A is a valuable investigative aid, particularly in interviewing
principals. They require careful, extensive preparation plus the
services of a reporter; therefore, obtaining them is not practical in
most instances.

210.10.1 [Purpose.]{.underline} The purpose of the Q & A is to develop
the facts in the case. Do not ask an employee personal questions if the
information can be obtained through his/her personnel file. A statement
of the witness\' name and position at the beginning of the Q & A is
sufficient in most cases.

All questions asked should be based on evidence or information in the
investigator\'s possession. Investigators should not accuse an employee
or non-employee of anything. Do not use a Q & A as an instrument for
indulging in \"fishing expeditions.\"

210.10.2 [Permission for Q & A.]{.underline} Secure the permission of
the SAC prior to taking a Q & A statement from a principal or witness.
The SAC is responsible for seeing that it is properly initiated and
conducted.

210.11 []{#RecordingEmployeeInterviews .anchor}[Recording Employee
Interviews.]{.underline}

Interviews by TIGTA-OI may be manually and/or mechanically recorded by
either party. The recording may not unreasonably delay the interview.

An employee who chooses to record an interview must provide TIGTA
personnel with advance notice in order for the SA to arrange for a
recording by TIGTA. An employee cannot refuse to allow TIGTA to record
an interview.

TIGTA procedures regarding recording of interviews have been
disseminated to bargaining unit employees and are available on the
Internet at
[www.treas.gov/tigta/oi_interview.shtml](http://www.treas.gov/tigta/oi_interview.shtml),
paragraph 15.

The following are the procedures for recording an interview:

  -------------------------------- --------------------------------------
  If\...                           Then\...

  TIGTA-OI records an interview    TIGTA-OI may furnish the employee a
                                   copy of the recording, if requested.

  The employee requests that the   The SA will make a recording for
  interview be recorded            TIGTA-OI records.

  The interview will concern tax   The restrictions in text 210.11.1 of
  returns or tax return            this Section will apply.
  information                      
  -------------------------------- --------------------------------------

210.11.1 [Recording Restrictions.]{.underline} When recording
interviews, the below procedures should be used to preserve the
confidentiality of tax return information and to prevent unauthorized
disclosures. Interviews that are to be manually recorded will be
recorded only by a TIGTA employee.

  -------------------------------- --------------------------------------
  If\...                           Then\...

  The employee wishes to have a    Inform the employee that the interview
  non-TIGTA employee manually      will be mechanically recorded by
  record the interview             TIGTA-OI and the employee will be
                                   provided a copy of the recording.

  The interview is mechanically    Advise the employee that the recording
  recorded and the employee has a  of the interview may not be
  copy of the recording, either    transcribed by a stenographer without
  his/her own or provided by       the specific permission of the IRS
  TIGTA-OI                         Chief, Disclosure Branch. This is not
                                   the TIGTA Disclosure Officer.
  -------------------------------- --------------------------------------

210.12 []{#InterviewInvCrimMatter .anchor}[Interviews Involving Criminal
Matters.]{.underline}

Generally, the subject of or suspect in a criminal investigation, either
employee or non-employee, will not be interviewed unless the USA or an
appropriate official of DOJ requests it, or agrees that such an
interview is appropriate.

Do not rely solely on the admission of an accused person to corroborate
or establish the violation of a law. Establish the violation of a law by
developing evidence through the investigative process. The evidence
should be secured prior to interviewing the subject or suspect. If this
is not possible, independent evidence corroborating the admission should
be obtained.

See [Exhibit
(400)-210.2](../../../../../../../../I:/chapter400-inv/400-exhibits/exhibit400-210-2.doc)
for guidance on appropriate forms to provide during TIGTA interviews.

210.13 []{#ArrangingEmpInterview .anchor}[Arranging Employee
Interviews.]{.underline}

The amount of advance notice given to the employee to report for an
interview will vary with the circumstances of the particular case. Try
to arrange the time and place of interview so it will not unnecessarily
inconvenience the employee or the employee\'s office.

In any kind of confrontation interview, ask the employee\'s supervisor
to direct the employee to report for an interview.

210.13.1 [Employee\'s Failure to Appear.]{.underline} If the employee
fails to appear as requested for an interview, ask the supervisory
official to issue the employee a written order directing him/her to
appear at the TIGTA-OI office for an interview at a specified date and
time to respond to questions.

The written order should specify that the employee\'s failure to appear
and respond to questions may subject him/her to \"severe disciplinary
action.\"

210.14 []{#EmployeeRefusesRespond .anchor}[Employee Refusal to Respond
to Questioning.]{.underline}

Questions of official interest must be answered by employees who are
being interviewed in a non-criminal or non-prosecution investigations.

See Rules Concerning Employee Conduct and Official Activities in [IRS
Document 12011](http://publish.no.irs.gov/DOCS/PDF/35691D03.PDF), Plain
Talk About Ethics and Conduct, codified in Treasury Employee Rules of
Conduct [31 CFR §
0.207](http://a257.g.akamaitech.net/7/257/2422/01jul20061500/edocket.access.gpo.gov/cfr_2006/julqtr/31cfr0.207.htm).

210.14.1 [Procedures.]{.underline} If an employee refuses to respond to
questions during a non-criminal or non-prosecution interview, advise the
employee as follows :

> Pursuant to [IRS Document
> 12011](http://publish.no.irs.gov/DOCS/PDF/35691D03.PDF), Plain Talk
> About Ethics and Conduct, codified in Treasury Employee Rules of
> Conduct 31 C.F.R. § 0.207, when directed by competent Treasury
> authority, employees must provide information, orally and/or in
> writing, and respond to questions in matters of official interest.
> Employees must respond to questions, under oath when required. Failure
> to respond as required may result in disciplinary action including
> removal.

If it appears an employee does not understand his/her obligation to
respond to questions as set forth in the ethics and conduct rules,
consider having the employee\'s supervisor issue the employee a written
order to respond to TIGTA's questions and advise him/her that failure to
respond may subject him/her to \"severe disciplinary action.

Do not ask an employee why he/she refuses to answer questions; since an
employee has no right to refuse to answer questions, any reasons
provided are immaterial. Ask the employee at least two material
questions relating to the matter under investigation to confirm that:

-   The employee understands the seriousness of his/her refusal to
    respond to questions;

-   There is no misunderstanding about the employee\'s refusal to
    respond; and

-   The questions asked and the answers expected should be related to
    \"matters of official interest.\" Document the questions asked and
    the employee\'s actions or actual verbal responses at the time of
    refusal.

210.15 []{#InterviewBUEmployees .anchor}[Interviewing Bargaining Unit
Employees.]{.underline}

Requirements for interviewing bargaining unit employees have been
established by statute and case law. See TIGTA's investigatory interview
procedures for bargaining unit employees available on the Internet at
[www.treas.gov/tigta/oi_interview.shtml](http://www.treas.gov/tigta/oi_interview.shtml).

The Civil Service Reform Act of 1978, Section 7114 (a)(2)(B), states, in
part, the following: \"An exclusive representative of an appropriate
unit in an agency shall be given the opportunity to be represented at
any examination of an employee in the unit by a representative of the
agency in connection with an investigation if the employee reasonably
believes that the examination may result in disciplinary action against
the employee; and the employee requests such representation.\"

The Supreme Court has held that an Office of Inspector General is acting
as a representative of the agency when interviewing bargaining unit
employees, and therefore a right to union representation exists.

210.15.1 [Contacting the Bargaining Unit Employee.]{.underline} Contact
the employee's manager to schedule an interview with any bargaining unit
employee, unless there are specific investigative or safety concerns
that would make such contact unwise.

When contacting the manager, advise the manager of the general subject
of the interview, including whether the interview involves criminal or
non-criminal matters, if known, and whether the employee is the subject
of an investigation or a third party witness.

If contacting the employee directly to schedule an interview, provide
the employee the following information:

-   The general subject of the interview, including whether the
    interview involves criminal or non-criminal matters, if known;

-   If he/she is the subject of an Employee Investigation or is being
    interviewed as a third party witness;

-   If the employee reasonably believes that the interview may result in
    disciplinary action, the employee is entitled to request union
    representation in the interview; and

-   If the employee wishes to have union representation, the interview
    will be scheduled to allow the employee to seek representation, so
    long as it does not unduly delay the interview.

If the employee indicates that he/she will request union representation
at the interview, the interview will be scheduled to allow the employee
to secure union representation. Securing representation shall not unduly
delay the interview.

TIGTA procedures regarding contacting bargaining unit employees have
been disseminated to bargaining unit employees and are available on the
Internet at
[www.treas.gov/tigta/oi_interview.shtml](http://www.treas.gov/tigta/oi_interview.shtml),
paragraphs 2 and 3.

210.15.2 [Bargaining Unit Employee\'s Right to Union
Representation.]{.underline} Under Federal law, bargaining unit
employees have the right to request union representation at interviews
where the employee is the subject of an Employee Investigation or where
the employee reasonably believes that the interview may result in
disciplinary action against him or her. This applies in criminal,
non-criminal, and non-prosecution investigations.

210.15.2.1 [Representation by NTEU.]{.underline} Bargaining unit
employees may only be represented by a person designated by the
exclusively recognized labor organization for their bargaining unit,
NTEU.

The NTEU does not have to furnish representation. If NTEU refuses to
furnish representation, the employee may bring an attorney, or must
attend the interview unaccompanied.

210.15.2.2 [Representation Decision Chart.]{.underline} The following
chart indicates a bargaining unit employee\'s options regarding
representation during an interview, and TIGTA-OI's responses to those
options.

  --------------------------------- -------------------------------------
  If\...                            Then\...

  The employee, upon being advised  Document the waiver of union
  of his/her right to union         representation in interview notes and
  representation, states that       on the Form OI 2028-M.
  he/she does not want a union      
  representative present            

  The employee requests             TIGTA may decline to conduct the
  representation                    interview or decide to conduct the
                                    interview with the representative
                                    present.

  If\...                            Then\...

  A decision is made to conduct the Give the employee reasonable time to
  interview with the representative get representation.
  present                           

  The interview proceeds without    The employee may request a brief
  representation and the employee   delay to request representation.
  believes that disciplinary action 
  may result because the subject    
  matter of the interview changes   

  An employee is represented and    If requested, allow the
  the subject matter of the         representative and the employee a
  interview changes to a matter the brief recess to confer on the new
  representative and the employee   issue.
  have not discussed                

  The employee waives his/her right Allow counsel in the interview,
  to union representation and       unless there is a compelling reason
  requests private counsel          not to. If there are concerns
                                    regarding the presence of counsel in
                                    the interview, refer the request to
                                    the ASAC, SAC and/or Operations
                                    Division, as appropriate, to
                                    determine whether the attorney will
                                    be allowed at the interview.
  --------------------------------- -------------------------------------

210.15.3 [Criminal Investigation.]{.underline} When an investigation
results in evidence that a Federal law has been violated by a bargaining
unit employee, present the facts of the case to a USA or other
appropriate DOJ attorney. Secure a decision regarding prosecution and
whether the employee should be interviewed.

210.15.3.1 [Interviewing Bargaining Unit Employee as Subject of Criminal
Investigation.]{.underline} If the employee is to be interviewed, at the
beginning of the interview, inform the employee of the following:

-   He/she is the subject of an official investigation;

-   The general nature of the allegations against him/her and that the
    allegations constitute violations of Federal criminal law;

-   His/her rights as stated on Form OI 5228, if the employee is in
    custody or on Form OI 5230, if the employee is not in custody. If
    the employee waives his/her rights, then obtain the employee's
    acknowledgement signature on Form OI 5228 or Form OI 5230 and
    provide the employee a copy of the signed form. See 210.18.2 of this
    section for procedures on interviewing a person in custody;

-   His/her right to union representation by providing the employee IRS
    Form 8111. Ask the employee to acknowledge receipt of the
    notification by signing IRS Form 8111 and provide the employee a
    copy of the signed form. Give the employee a reasonable amount of
    time to secure union representation, if requested. See 210.15.2 of
    this section for bargaining unit employee's right to union
    representation; and

-   If the employee waives his/her rights, place the employee under oath
    or affirmation by having the employee swear or affirm that his/her
    testimony will be true, under penalty of perjury.

See [Exhibit
(400)-210.2](../../../../../../../../I:/chapter400-inv/400-exhibits/exhibit400-210-2.doc)
for forms to provide during TIGTA interviews.

210.15.3.2 [Documentation of Rights and Oath/Affirmation.]{.underline}
Document the following in the opening portion of a statement or
affidavit:

-   The issuance of Form OI 5228 or Form OI 5230;

-   The issuance of IRS Form 8111 and if the employee waives presence of
    union representation; and

-   The employee was placed under oath or affirmation.

If there is no resulting statement or affidavit, document the issuance
of the rights and oath or affirmation on the Form OI 2028-M, identifying
any witnesses present.

At the conclusion of the interview, recap the employee's testimony and
document the facts in a Form OI 2028-M.

See [210.9](#AffidavitsStatements) of this section for procedures on
taking affidavits.

210.15.4 [Non-Prosecution Investigation.]{.underline} When an
investigation results in evidence that a federal law has been violated
by a bargaining unit employee and prosecution has been declined by a USA
or other DOJ attorney or the violation is subject to a blanket
declination agreement approved by the appropriate DOJ attorney, discuss
the facts of the investigation with the ASAC, SAC, and/or Operations
Division, as appropriate, to determine whether the employee is to be
interviewed.

210.15.4.1 [Interviewing a Bargaining Unit Employee as the Subject of
Non-Prosecution Investigation.]{.underline} If the employee is to be
interviewed, at the beginning of the interview, inform the employee of
the following:

-   He/she is the subject of an official investigation;

-   The general nature of the allegations against him/her and that the
    allegations constitute violations of Federal criminal law;

-   Prosecution has been declined and his/her rights as stated on Form
    OI 8112. Ask the employee to acknowledge receipt of the assurance by
    signing Form OI 8112 and give him/her a copy of the signed form.
    After being advised that prosecution has been declined, a bargaining
    unit employee accompanied by a union representative may request a
    reasonable delay of the interview;

-   His/her right to union representation by providing the employee IRS
    Form 8111. Ask the employee to acknowledge receipt of the
    notification by signing IRS Form 8111 and provide the employee a
    copy of the signed form. Give the employee a reasonable amount of
    time to secure union representation, if requested. See 210.15.2 of
    this section regarding bargaining unit employee's right to union
    representation; and

-   The Privacy Act provisions by providing the employee a copy of
    Privacy

Act Notice 417and explaining the provisions of the notice to the
employee.

During the interview, if the employee makes statements that indicate
he/she has committed a criminal offense; the nature or extent of which
was previously unknown to the interviewing SA; and, referral for
prosecution appears likely, then, provide the employee his/her rights as
stated on Form OI 5230. If the employee waives his/her rights, obtain
the employee's acknowledgement signature on Form OI 5230 and provide the
employee a copy of the signed form.

Place the employee under oath or affirmation by having the employee
swear or affirm that his/her testimony will be true, under penalty of
perjury.

TIGTA procedures regarding the use of Form OI 8112 have been
disseminated to bargaining unit employees and are available on the
Internet at
[www.treas.gov/tigta/oi_interview.shtml](http://www.treas.gov/tigta/oi_interview.shtml),
paragraphs 12 and 14.

See [Exhibit
(400)-210.2](../../../../../../../../I:/chapter400-inv/400-exhibits/exhibit400-210-2.doc)
for forms to provide during TIGTA interviews.

210.15.4.2 Documentation of Rights and Oath/Affirmation. Document the
following in the opening portion of a statement or affidavit:

-   The issuance of Form OI 8112;

-   The issuance of IRS Form 8111 and if the employee waives presence of
    union representation;

-   The issuance of Privacy Act Notice 417;

-   The issuance of Form OI 5230; and

-   If the employee was placed under oath or affirmation.

If there is no resulting statement or affidavit, document the issuance
of the rights and oath or affirmation on the Form OI 2028-M, identifying
any witnesses present.

At the conclusion of the interview, recap the employee's testimony and
document the facts in a Form OI 2028-M.

See [210.9](#AffidavitsStatements) of this section for procedures on
taking affidavits.

210.15.5 [Non-Criminal Investigation.]{.underline} When an investigation
results in evidence that a bargaining unit employee has committed acts
of misconduct that do not constitute violations of Federal criminal law,
discuss the facts of the case with the ASAC, SAC, and/or Operations, as
appropriate, to determine whether the employee is to be interviewed.

210.15.5.1 [Interviewing a Bargaining Unit Employee as Subject of
Non-Criminal Investigation.]{.underline} If the employee is to be
interviewed, at the beginning of the interview, inform the employee of
the following:

-   He/she is the subject of an official investigation;

-   The general nature of the allegations against him/her and that the
    allegations constitute violations of ethics and conduct rules;

-   His/her right to union representation by providing the employee IRS
    Form 8111. Ask the employee to acknowledge receipt of the
    notification by signing IRS Form 8111 and provide the employee a
    copy of the signed form. Give the employee a reasonable amount of
    time to secure union representation, if requested. See 210.15.2 of
    this section regarding bargaining unit employee's right to union
    representation; and

-   The Privacy Act provisions by providing the employee with a copy of
    Privacy Act Notice 417 and explaining the provisions of the notice
    to the employee.

During the interview, if the employee makes statements that indicate
he/she has committed a criminal offense; the nature or extent of which
was previously unknown to the interviewing SA; and, referral for
prosecution appears likely, then, provide the employee his/her rights as
stated on Form OI 5230. If the employee waives his/her rights, obtain
the employee's acknowledgement signature on Form OI 5230 and provide the
employee a copy of the signed form.

Place the employee under oath or affirmation by having the employee
swear or affirm that his/her testimony will be true, under penalty of
perjury.

See [Exhibit
(400)-210.2](../../../../../../../../I:/chapter400-inv/400-exhibits/exhibit400-210-2.doc)
for forms to provide during TIGTA interviews.

210.15.5.2 [Documentation of Rights and Oath/Affirmation.]{.underline}
Document the following in the opening portion of a statement or
affidavit:

-   The issuance of IRS Form 8111 and if the employee waives presence of
    union representation;

-   The issuance of Privacy Act Notice 417;

-   The issuance of Form OI 5230; and

-   If the employee was placed under oath or affirmation, in the opening
    portion of a statement or affidavit.

If there is no resulting statement or affidavit, document the issuance
of the rights and oath or affirmation on the Form OI 2028-M, identifying
any witnesses present.

At the conclusion of the interview, recap the employee's testimony and
document the facts in a Form OI 2028-M.

See [210.9](#AffidavitsStatements) of this section for procedures on
taking affidavits.

210.15.6 [Interviewing Bargaining Unit Employees as Third Party
Witnesses.]{.underline} Bargaining unit employees who are third party
witnesses are entitled to union representation if they reasonably
believe the interview may result in disciplinary action.

At the beginning of the interview, inform the employee of the following:

-   He/she will be interviewed as a third party witness in an official
    investigation; and

-   His/her notification regarding third party interviews as stated on
    IRS Form 9142. Ask the employee to acknowledge receipt of IRS Form
    9142 by signing the form and give the employee a copy of the signed
    form. If the employee asks for union representation, consider
    whether to grant the request or to discontinue the interview. If the
    interview is to be continued, allow the employee a reasonable amount
    of time to obtain union representation.

During the interview, if the employee provides information causing the
SA to reasonably believe the employee may become the subject of criminal
prosecution; then, provide his/her rights as stated on Form OI 5230. If
the employee waives his/her rights, then obtain the employee's
acknowledgement signature on Form OI 5230 and provide the employee a
copy of the signed form.

If interviewing the employee under oath, place the employee under oath
or affirmation by having the employee swear or affirm that his/her
testimony will be true, under penalty of perjury.

Interviews initiated by an employee/complainant will not normally
require union representation. However, if the complainant furnishes
information that the SA reasonably believes may result in disciplinary
action to the complainant, the complainant should be advised of his/her
right to union representation as stated on IRS Form 8111.

See [Exhibit
(400)-210.2](../../../../../../../../I:/chapter400-inv/400-exhibits/exhibit400-210-2.doc)
for forms to provide during TIGTA interviews.

210.15.6.1 [Documentation of Rights and Oath/Affirmation.]{.underline}
Document the following in the opening portion of a statement or
affidavit:

-   The issuance of IRS Form 9142;

-   The issuance of Form OI 5230;

-   The witness warning and if confidentiality was requested; and

-   If the employee was placed under oath or affirmation.

If there is no resulting statement or affidavit, document this
information on the Form OI 2028-M.

At the conclusion of the interview, recap the witness' testimony and
document the facts in a Form OI 2028-M.

See [210.9](#AffidavitsStatements) of this section for procedures on
taking affidavits.

210.16 []{#InterviewNonBUEmployees .anchor}[Interviewing Non-Bargaining
Unit Employees.]{.underline}

Non-bargaining unit employees are not entitled to union representation
during TIGTA interviews.

210.16.1 [Criminal Investigation.]{.underline} When an investigation
results in evidence that a Federal law has been violated by a
non-bargaining unit employee, present the facts of the case to a USA or
other appropriate DOJ attorney. Secure a decision regarding prosecution
and whether the employee should be interviewed.

210.16.1.1 [Interviewing Non-Bargaining Unit Employee as Subject of
Criminal Investigation.]{.underline} If the employee is to be
interviewed, at the beginning of the interview, inform the employee of
the following:

-   He/she is the subject of an official investigation;

-   The general nature of the allegations against him/her and that the
    allegations constitute violations of federal criminal law; and

-   His/her rights as stated on Form OI 5228, if the employee is in
    custody or on Form OI 5230, if the employee is not in custody. If
    the employee elects to waive his/her rights, then obtain the
    employee's acknowledgement signature on Form OI 5228 or Form OI 5230
    and provide the employee a copy of the signed form. See 210.18.2 of
    this section for procedures on interviewing a person in custody.

If the employee waives his/her rights, place the employee under oath or
affirmation by having the employee swear or affirm that his/her
testimony will be true, under penalty of perjury.

See [Exhibit
(400)-210.2](../../../../../../../../I:/chapter400-inv/400-exhibits/exhibit400-210-2.doc)
for forms to provide during TIGTA interviews.

210.16.1.2 [Documentation of Rights and Oath/Affirmation.]{.underline}
Document the following in the opening portion of a statement or
affidavit:

-   The issuance of Form OI 5228 or Form OI 5230; and

-   If the employee was placed under oath or affirmation.

If there is no resulting statement or affidavit, document the issuance
of the rights and oath or affirmation on the Form OI 2028-M, identifying
any witnesses present.

At the conclusion of the interview, recap the employee's testimony and
document the facts in a Form OI 2028-M.

See [210.9](#AffidavitsStatements) of this Section for procedures on
taking affidavits.

210.16.2 [Non-Prosecution Investigation.]{.underline} When an
investigation results in evidence that a Federal law has been violated
by a non-bargaining unit employee and prosecution has been declined by a
USA or other DOJ attorney or the violation is subject to a blanket
declination agreement approved by the appropriate DOJ attorney, discuss
the facts of the investigation with the ASAC, SAC, and/or Operations
Division, as appropriate, to determine whether the employee is to be
interviewed.

210.16.2.1 [Interviewing Non-Bargaining Unit Employee as Subject of
Non-Prosecution Investigation.]{.underline} If the employee is to be
interviewed, at the beginning of the interview, inform the employee of
the following:

-   He/she is the subject of an official investigation;

-   The general nature of the allegations against him/her and that the
    allegations constitute violations of federal criminal law;

-   Prosecution has been declined and his/her rights as stated on Form
    OI 8112 Ask the employee to acknowledge receipt of the assurance by
    signing Form OI 8112 and give him/her a copy of the signed form;

-   If the employee requests union representation, that a non-bargaining
    unit employee is not entitled to union representation; and

-   The Privacy Act provisions by providing the employee a copy of
    Privacy Act Notice 417 and explaining the provisions of the notice
    to the employee.

During the interview, if the employee makes statements that indicate
he/she has committed a criminal offense; the nature or extent of which
was previously unknown to the interviewing SA; and, referral for
prosecution appears likely, then, provide the employee his/her rights as
stated on Form OI 5230. If the employee waives his/her rights, obtain
the employee's acknowledgement signature on Form OI 5230 and provide the
employee a copy of the signed form.

Place the employee under oath or affirmation by having the employee
swear or affirm that his/her testimony will be true, under penalty of
perjury.

See [Exhibit
(400)-210.2](../../../../../../../../I:/chapter400-inv/400-exhibits/exhibit400-210-2.doc)
for forms to provide during TIGTA interviews.

210.16.3.2 [Documentation of Rights and Oath/Affirmation.]{.underline}
Document the following in the opening portion of a statement or
affidavit:

-   The issuance of Form OI 8112;

-   The issuance of Privacy Act Notice 417;

-   The issuance of Form OI 5230; and

-   If the employee was placed under oath or affirmation.

If there is no resulting statement or affidavit, document the issuance
of the rights and oath or affirmation on the Form OI 2028-M, identifying
any witnesses present.

At the conclusion of the interview, recap the employee's testimony and
document the facts in a Form OI 2028-M.

See [210.9](#AffidavitsStatements) of this section for procedures on
taking affidavits.

210.16.4 [Non-Criminal Investigation.]{.underline} When an investigation
results in evidence that a non-bargaining unit employee has committed
acts of misconduct that do not constitute violations of Federal criminal
laws, discuss the facts of the case with the ASAC, SAC, and/or
Operations Division, as appropriate, to determine whether the employee
is to be interviewed.

210.16.4.1 [Interviewing Non-Bargaining Unit Employee as Subject of
Non-Criminal Investigation.]{.underline} At the beginning of the
interview, inform the employee of the following:

-   That he/she is the subject of an official investigation;

-   The general nature of the allegations against him/her and that the
    allegations constitute violations of ethics and conduct rules; and

-   The Privacy Act provisions by providing the employee with a copy of
    Privacy Act Notice 417 and explaining the provisions of the notice
    to the employee.

During the interview, if the employee makes statements that indicate
he/she has committed a criminal offense; the nature or extent of which
was previously unknown to the interviewing SA; and, referral for
prosecution appears likely, then, provide the employee his/her rights as
stated on Form OI 5230. If the employee waives his/her rights, obtain
the employee's acknowledgement signature on Form OI 5230 and provide the
employee a copy of the signed form.

Place the employee under oath or affirmation by having the employee
swear or affirm that his/her testimony will be true, under penalty of
perjury.

See [Exhibit
(400)-210.2](../../../../../../../../I:/chapter400-inv/400-exhibits/exhibit400-210-2.doc)
for guidance on appropriate forms to provide during TIGTA interviews.

210.16.4.2 [Documentation of Rights and Oath/Affirmation.]{.underline}
Document the following in the opening portion of a statement or
affidavit:

-   The issuance of Privacy Act Notice 417;

-   The issuance of Form OI 5230; and

-   If the employee was placed under oath or affirmation.

If there is no resulting statement or affidavit, document the issuance
of the rights and oath or affirmation on the Form OI 2028-M, identifying
any witnesses present.

At the conclusion of the interview, recap the employee's testimony and
document the facts in a Form OI 2028-M.

See [210.9](#AffidavitsStatements) of this section for procedures on
taking affidavits.

210.16.5 [Interviewing Non-Bargaining Unit Employee as Third Party
Witness.]{.underline} At the beginning of the interview, inform a
non-bargaining unit employee of the following:

-   He/she is to be interviewed as a third-party witness in an official
    investigation; and

-   If the employee requests union representation, or inquires about
    his/her right to representation, that he/she is not entitled to
    union representation because he/she is not a bargaining unit
    employee.

During the interview, if the employee provides information causing the
SA to reasonably believe the employee may become the subject of criminal
prosecution; then, provide his/her rights as stated on Form OI 5230. If
the employee waives his/her rights, then obtain the employee's
acknowledgement signature on Form OI 5230 and provide the employee a
copy of the signed form.

If interviewing the employee under oath or affirmation, place the
employee under oath or affirmation by having the employee swear or
affirm that his/her testimony will be true, under penalty of perjury.

210.16.5.1 [Documentation of Rights and Oath/Affirmation.]{.underline}
Document the following in the opening portion of a statement or
affidavit:

-   The issuance of Form OI 5230;

-   The witness warning and if confidentiality was requested; and

-   If the employee was placed under oath or affirmation, in the opening
    portion of a statement or affidavit. If there is no resulting
    statement or affidavit, document this information on the Form OI
    2028-M.

At the conclusion of the interview, recap the witness' testimony and
document the facts in a Form OI 2028-M.

See [210.9](#AffidavitsStatements) of this section for procedures on
taking affidavits.

210.17 []{#InterviewNonEmployees .anchor}[Interviewing
Non-Employees.]{.underline}

Non-employees are interviewed as complainants, witnesses, informants, or
subjects of an investigation. They have no obligation to respond to
questions. When a non-employee requests the presence of legal counsel or
other representative at a third-party or non-criminal interview, decide
whether to conduct or discontinue the interview.

210.17.1 [Criminal Investigation.]{.underline} When an investigation
results in evidence that a Federal law has been violated by a
non-employee, present the facts of the case to a USA or other DOJ
attorney. Secure a decision regarding prosecution and whether the
non-employee should be interviewed.

210.17.1.1 [Interviewing Non-Employee as the Subject of a Criminal
Investigation.]{.underline}

If the non-employee is to be interviewed, inform the non-employee of the
following:

-   He/she is being interviewed in an official investigation; and

-   His/her rights as stated on Form OI 5228. If the non-employee elects
    to waive his/her rights, then obtain the non-employee's
    acknowledgment signature on Form OI 5228 and provide the
    non-employee a copy of the signed form. See 210.18.2 of this Section
    for procedures on interviewing a person in custody.

Consider the benefit of interviewing the non-employee under oath or
affirmation. Place the individual under oath or affirmation by having
him/her swear or affirm that his/her testimony will be true, under
penalty of perjury.

See [Exhibit
(400)-210.2](../../../../../../../../I:/chapter400-inv/400-exhibits/exhibit400-210-2.doc)
for forms to provide during TIGTA interviews.

210.17.1.2 [Documentation of Rights and Oath/Affirmation.]{.underline}
Document the following in the opening portion of a statement or
affidavit:

-   The issuance of Form OI 5228; and

-   If the non-employee was placed under oath or affirmation.

If there is no resulting statement or affidavit, document the issuance
of the rights and oath or affirmation on the Form OI 2028-M, identifying
any witnesses present.

At the conclusion of the interview, recap the non-employee's testimony
and document the facts in a Form OI 2028-M.

See [210.9](#AffidavitsStatements) of this section for procedures on
taking affidavits.

210.17.2 [Non-Prosecution Investigation.]{.underline} When an
investigation results in evidence that a Federal law has been violated
by a non-employee and prosecution has been declined by a USA or other
DOJ attorney or the violation is subject to a blanket declination
agreement approved by the appropriate DOJ attorney, discuss the facts of
the investigation with the ASAC, SAC, and/or Operations Division, as
appropriate, to determine whether the non-employee is to be interviewed.

210.17.2.1 [Interviewing Non-Employee as Subject of Non-Prosecution
Investigation.]{.underline} If the non-employee is to be interviewed,
inform the non-employee of the following:

-   He/she is being interviewed in an official investigation; and

-   The Privacy Act provisions by providing Privacy Act Notice 416 or
    425, as applicable, and explaining the notice to him/her.

Consider the benefit of interviewing the non-employee under oath or
affirmation. Place the individual under oath or affirmation by having
him/her swear or affirm that his/her testimony will be true, under
penalty of perjury.

See [Exhibit
(400)-210.2](../../../../../../../../I:/chapter400-inv/400-exhibits/exhibit400-210-2.doc)
for forms to provide during TIGTA interviews.

210.17.2.2 [Documentation of Notice and Oath/Affirmation.]{.underline}
Document the following in the opening portion of a statement or
affidavit:

-   The issuance of the Privacy Act Notice; and

-   If the non-employee was placed under oath or affirmation.

If there is no resulting statement or affidavit, document the issuance
of the notice and oath or affirmation on the Form OI 2028-M, identifying
any witnesses present.

At the conclusion of the interview, recap the non-employee's testimony
and document the facts in a Form OI 2028-M.

See [210.9](#AffidavitsStatements) of this section for procedures on
taking affidavits.

210.17.3 [Non-Criminal Investigation.]{.underline} When an investigation
results in evidence that a non-employee has committed acts that do not
constitute violations of Federal criminal law, discuss the facts of the
case with the ASAC, SAC, and/or Operations Division, as appropriate, to
determine whether the non-employee is to be interviewed.

210.17.3.1 [Interviewing Non-Employee as Subject of a Non-Criminal
Investigation.]{.underline} If the non-employee is to be interviewed,
inform the non-employee of the following:

-   He/she is being interviewed in an official investigation; and

-   The Privacy Act provisions by providing Privacy Act Notice 416 or
    425, as applicable, and explaining the notice to him/her.

Consider the benefit of interviewing the non-employee under oath or
affirmation. Place the individual under oath or affirmation by having
him/her swear or affirm that his/her testimony will be true, under
penalty of perjury.

See [Exhibit
(400)-210.2](../../../../../../../../I:/chapter400-inv/400-exhibits/exhibit400-210-2.doc)
for forms to provide during TIGTA interviews.

210.17.3.2 [Documentation of Notice and Oath/Affirmation.]{.underline}
Document the following in the opening portion of a statement or
affidavit:

-   The issuance of the Privacy Act Notice; and

-   If the non-employee was placed under oath or affirmation.

If there is no resulting statement or affidavit, document the issuance
of the notice and oath or affirmation on the Form OI 2028-M, identifying
any witnesses present.

At the conclusion of the interview, recap the employee's testimony and
document the facts in a Form OI 2028-M.

See [210.9](#AffidavitsStatements) of this Section for procedures on
taking affidavits.

210.17.4 [Interviewing a Non-Employee as a Third Party
Witness.]{.underline} Advise the non-employee that he/she is to be
interviewed as a third-party witness in an official investigation.

Do not reveal to the third-party witness whether the investigation is
criminal or non-criminal in nature, unless such information is required
in order to obtain information from the witness.

At the conclusion of the interview, recap the witness' testimony and
document the facts in a Form OI 2028-M.

See [Exhibit
(400)-210.2](../../../../../../../../I:/chapter400-inv/400-exhibits/exhibit400-210-2.doc)
for forms to provide during TIGTA interviews.

210.18 []{#SpecialInterviewSituations .anchor}[Special Interview
Situations.]{.underline}

As a general rule, avoid interviewing minors as witnesses whenever
possible. However, circumstances may arise which will require an
interview of a minor.

A subject or suspect in custody must be advised of his/her Miranda
rights.

210.18.1 [Interviewing a Minor.]{.underline} Each Federal court accepts
the state law and procedure for the area where the court is located when
considering the testimony of a minor. Anyone under 21 years of age
should be considered as a possible minor, because the age of maturity,
legal rights, responsibilities, and protection of minors may vary from
state to state.

Protect a minor\'s special rights and status as defined in each state\'s
law.

210.18.1.1 [Parental Approval.]{.underline} Consider the following when
interviewing a minor:

-   A parent or guardian should be present, or should extend permission
    to conduct the interview of persons under 18 years of age.

-   Parental presence or approval should be obtained in all instances
    where the witness is between the age of 18 and 21 and is still
    living at his/her parents' or guardian\'s home.

-   Individuals between 18 and 21, not living with a parent or guardian,
    may be interviewed without parental approval, except in a morals
    case, when approval should be obtained. Where parental approval
    cannot feasibly be obtained, document attempts to obtain approval
    and, conduct the interview with a witness present.

210.18.2 [Interviewing a Person in Custody.]{.underline} If a subject is
in custody or is deprived of his/her freedom of action in any
significant way, advise the subject of his/her [Miranda]{.underline}
rights. Advising a person of his/her rights in a custodial situation is
essential to protect the admissibility as evidence of any information,
statement or affidavit provided by the person. Include a statement that
such advisement was given in the opening portion of the statement or
affidavit. If given orally, with no written statement or affidavit,
document the fact that the advice of rights was given on the Form OI
2028-M, identifying any witnesses who were present.

Obtain a written waiver if the subject elects to waive the right to
counsel and the right to remain silent. Use Form OI 5228 or similar
wording. If circumstances make it impossible to obtain a signed Form OI
5228 (waiver), an oral waiver may be accepted, provided it is witnessed
by another SA or other credible person. Due caution should be exercised
if proceeding without a signed waiver.

TIGTA procedures regarding custodial interviews have been disseminated
to bargaining unit employees and are available on the Internet at

[www.treas.gov/tigta/oi_interview.shtml](http://www.treas.gov/tigta/oi_interview.shtml),
paragraph 10.

210.18.3 [Statement Analysis Questionnaire.]{.underline} The Statement
Analysis Questionnaire is an interviewing technique used in situations
where there is no definite suspect and any one of a number of people may
have committed the offense. The Statement Analysis Questionnaire
consists of a specially developed and organized set of questions, either
asked orally or in questionnaire form by an SA, which elicits responses
indicative of truthfulness or deception on the part of the interviewee.
An analysis of the interviewees\' responses narrows down the number of
suspects, and follow-up interviews are subsequently held with those who
may still be suspects.

Only SAs trained in the Statement Analysis Questionnaire technique
should administer the questionnaire.

Statement Analysis Questionnaires are subject interviews. Each IRS or
TIGTA employee completing the questionnaire should be given Form OI
5230. Bargaining unit employees should also be given IRS Form 8111.

TIGTA procedures regarding the use of warning forms with Statement
Analysis Questionnaires have been disseminated to bargaining unit
employees and are available on the Internet at
[www.treas.gov/tigta/oi_interview,shtml](http://www.treas.gov/tigta/oi_interview,shtml),
paragraph 16.

210.19 []{#PolygraphExams .anchor}[Polygraph Examinations.]{.underline}

The polygraph is a scientific, diagnostic instrument, which records
physiological changes in a person. It can be reliable in detecting
deception by a person on a specific issue. If deception is indicated,
the person must be interviewed to obtain the truth. TIGTA-OI will resist
all attempts to compel its investigative personnel to take polygraph
examinations requested by a defendant or defense counsel. SAs will never
volunteer to take a polygraph examination about an employee\'s
participation in an investigation.

210.19.1 [General.]{.underline} General information to consider in the
use of a polygraph examination:

-   Be selective when considering the polygraph as an investigative aid;
    make all other reasonable investigative efforts prior to using the
    polygraph.

-   SAs are prohibited from using the polygraph to screen a large number
    of suspects.

-   Use the polygraph in criminal cases or where extraordinary
    circumstances merit its use in non-criminal matters.

-   Polygraph examination results can be submitted as evidence in an
    Employee Investigation for the purpose of administrative
    adjudication.

-   Polygraph examinations are subject interviews. Bargaining unit
    employees should be provided with Form 8111 prior to the
    examination. TIGTA may determine not to conduct a polygraph
    examination unless the bargaining unit employee waives the right to
    union representation.

-   Taxpayers who submit to a polygraph examination based on allegations
    against an employee must acknowledge in writing that the polygraph
    results will not be used against the government in civil litigation.
    See
    [Exhibit(400)-210.1](../../../../../../../../I:/chapter400-inv/400-exhibits/exhibit400-210-1.doc).

210.19.2 [Polygraph Examination Assistance.]{.underline} Polygraph
examinations will generally be conducted by the United States Secret
Service (USSS). Exceptions to using the USSS are:

-   A joint investigation with another agency which has its own
    polygraph examiners; and

-   Exigent circumstances which may dictate the services of a State or
    local agency.

210.19.3 [Authorization and Approval for Polygraph
Examinations.]{.underline} The SAC may authorize polygraph examinations.

SAs cannot initiate any discussion of a polygraph examination, or ask
any person to submit to a polygraph examination, without the prior
approval of the SAC.

210.19.3.1 [Factors for Approval.]{.underline} Consider the following
factors when evaluating the use of a polygraph examination:

-   Have all reasonable investigative efforts been made?

-   Has the person to be examined been interviewed?

-   Is the polygraph examination essential for additional information in
    the investigation?

-   Is there reasonable cause to believe that the person to be examined
    is withholding information relevant to the investigation?

-   Is there reasonable cause to believe the person has knowledge of or
    is involved in the matter?

-   Does the allegation involve a criminal or non-criminal matter? If
    non-criminal, are there exceptional circumstances to warrant a
    polygraph examination?

-   Has the person to be examined volunteered for the polygraph
    examination?

-   Will the use of a polygraph examination jeopardize any Federal or
    local prosecution?

210.19.3.2 [Requests for Approval.]{.underline} Prepare a memorandum to
the SAC to request a polygraph examination. The memorandum must include
the following information:

-   The name and age of the person to be examined

**Note:** If a minor is to be examined, obtain written parental
permission. The minor's parents must be informed that they may be
present during the examination.

-   Whether the person to be examined is an IRS employee or non-employee
    and the IRS employee\'s position and grade.

-   The case number and case category.

-   A brief summary of the facts of the case including the involvement
    of the person to be examined. List the amount of money involved if
    monetary theft or bribery occurred.

-   Whether the person to be examined asked for the polygraph
    examination, or was asked to submit to a polygraph examination.

-   Confirmation that the person to be examined has agreed to the
    polygraph examination.

-   If the person to be examined is a bargaining unit employee,
    confirmation that the employee waives his/her right to union
    representation during the examination.

-   The city and state where the polygraph examination is to be
    conducted.

-   The name and telephone number of the case SA.

210.19.4 [Requesting USSS Assistance.]{.underline} SAs should fully
understand the preceding requirements and procedures prior to initiating
any polygraph examination inquiry. Become familiar with USSS policies
and procedures before contacting USSS polygraph examiners. See [text
210.19.4.3](#USSSPolicyProcedure) of this section for USSS policy and
procedures.

210.19.4.1 [Memorandum Requesting Assistance.]{.underline} After
approval by the SAC, prepare a memorandum to the Assistant Director of
Inspection, USSS requesting polygraph examination assistance. Include
all relevant information.

Submit the memorandum to the local USSS office SAC who will forward the
request to USSS headquarters, Forensic Services Division. USSS
headquarters will notify the local USSS office SAC of its approval or
disapproval of the request. If approved, the polygraph examination will
be scheduled through the local USSS office.

210.19.4.2 [Polygraph Examiner.]{.underline} Once the polygraph
examination has been approved, contact the USSS polygraph examiner to
discuss:

-   The date and time of the examination;

-   The investigation;

-   Key factors which need to be resolved;

-   Questions to be asked during the polygraph examination; and

-   If necessary, return information as permitted under 26 U.S.C. §
    6103(k)(6). See [Section
    70.3](../../../../../../../../I:/chapter400-inv/400-70/chapter400-70.doc#DisclosureAuthority)
    of this chapter for more information on disclosure authority.

210.19.4.3 []{#USSSPolicyProcedure .anchor}[USSS Policy and
Procedures.]{.underline} TIGTA has agreed to follow USSS policy in
conducting polygraph examinations which includes the following:

-   The polygraph examiner has sole discretion to refuse to conduct or
    to terminate an examination.

-   A complete examination consists of a pre-test phase, an in-test
    phase, and a post-test phase.

-   If the person to be examined is a law enforcement officer and the
    subject of a TIGTA investigation, the examination will be conducted
    by two polygraph examiners using a \"dual examiner polygraph
    technique.\"

-   Examinations may be visually monitored via two-way mirrors, video
    cameras, etc., with the consent of the polygraph examiner; all
    witnesses to a polygraph examination will be identified in the
    polygraph report.

-   An SA will be available to assist the examiner during the
    examination. The SA should witness the advisement of rights and
    consent form signature and obtain a statement or affidavit from the
    subject if he/she makes any admissions or confessions.

-   SAs will not report preliminary opinions of the polygraph
    examination. The polygraph examiner is required to send the report
    to USSS headquarters for quality control review. USSS headquarters
    will send a formal Polygraph Examination Report directly to the case
    SA or through the local USSS office.