Td 9178

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2005-1 C.B. 708; T.D. 9178;
2005 IRB LEXIS 428, *; 2005-11 I.R.B. 708
DEPARTMENT OF THE TREASURY
Treasury Decision 9178
Testimony or Production of Records in a Court or Other Proceeding
2005-1 C.B. 708; T.D. 9178; 2005 IRB LEXIS 428; 2005-11 I.R.B. 708
March 14, 2005
[*1]
SUBJECT MATTER: Section 301 (5 USC).- Departmental Regulations
APPLICABLE SECTIONS:
26 CFR 301.9000-1: Definitions when used in sections 301.9000-1 through 301.9000-6. Internal Revenue Service 26 CFR
Parts 301 and 602
TEXT:
AGENCY:
Internal Revenue Service (IRS), Treasury.
ACTION:
Final regulation.
SUMMARY:
This document contains final regulations replacing the existing regulation that establishes the procedures to be followed by
IRS officers and employees upon receipt of a request or demand for disclosure of IRS records or information. The purpose
of the final regulations is to provide specific instructions and to clarify the circumstances under which more specific
procedures take precedence. The final regulations extend the application of the regulation to former IRS officers and
employees as well as to persons who are or were under contract to the IRS. The final regulations affect current and former
IRS officers, employees and contractors, and persons who make requests or demands for disclosure.
DATES:
Effective Date: These regulations are effective on February 14, 2005.
Applicability Dates: For dates of applicability, see §301.9000-7.
FOR FURTHER INFORMATION CONTACT:
Scott E. Powers, (202) 622-4580 (not a toll-free number).
SUPPLEMENTARY INFORMATION:

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Paperwork Reduction Act
The [*2] collections of information contained in these final regulations have been submitted to the Office of
Management and Budget for review in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507 (d))
under control number 1545-1850.
The collections of information are in §301.9000-5. This information is required to enable the IRS to provide authorizing
officials with a better informed basis upon which to determine whether to grant, deny, or limit testimony or the disclosure
of IRS records or information so as to conserve agency resources.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it
displays a valid control number assigned by the Office of Management and Budget.
The burden reflected in the notice of proposed rulemaking (REG-140930-02, 2003-2 C.B. 583) relating to the procedures
for IRS officers and employees to follow upon receipt of a request or demand for disclosure of IRS records or information
was published in the Federal Register (68 FR 40850). Comments concerning the accuracy of this burden estimate and
suggestions for reducing this burden should be sent to the Internal Revenue Service, Attn: IRS [*3] Reports
Clearance Officer, SE:W:CAR:MP:T:T:SP, Washington, DC 20224, and to the Office of Management and Budget, Attn:
Desk Officer for the Department of the Treasury, Office of Information and Regulatory Affairs, Washington, DC 20503.
Books or records relating to a collection of information must be retained as long as their contents may become material in
the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as
required by section 6103 of the Internal Revenue Code.
Background
This document contains amendments to 26 CFR Part 301 under 5 U.S.C. 301 and 26 CFR Part 602. On July 9, 2003, a
notice of proposed rulemaking (REG-140930-02, 2003-2 C.B. 583) relating to the procedures for IRS officers and
employees to follow upon receipt of a request or demand for disclosure of IRS records or information was published in the
Federal Register (68 FR 40850). No comments were received from the public in response to the notice of proposed
rulemaking. No public hearing was requested or held. The proposed regulations are adopted as amended by this Treasury
decision. With the exception of changes that are grammatical in nature, the revisions [*4] are discussed below.
Summary of Comments and Explanation of Revisions
The regulations have been clarified by the addition of an example illustrating a situation in which testimony authorization
is required. In addition, text and examples have been added to illustrate that even though testimony authorization may
not be required, any disclosure of IRS records and information must be proper under the applicable substantive law. For
example, any disclosure of returns and return information must comply with section 6103, and any disclosure of tax
convention information must comply with section 6105 and be coordinated with the United States Competent Authority.
Special Analyses
It has been determined that this Treasury decision is not a significant regulatory action as defined in Executive Order
12866. Therefore, a regulatory assessment is not required. It has been determined that 5 U.S.C. 553 (b), the
Administrative Procedure Act, does not apply to these final regulations.
It is hereby certified that the collection of information in these final regulations will not have a significant economic impact
on a substantial number of small entities. This certification is based upon the fact that of [*5] the estimated 1,400
requests received annually, less than 500 of those requests are estimated to be received from small entities. Moreover,
the burden associated with complying with the collection of information in these regulations is estimated to be only 1 hour
per respondent. Therefore, a Regulatory Flexibility Analysis under the Regulatory Flexibility Act (5 U.S.C. chapter 6) is not
required.
Pursuant to section 7805 (f) of the Internal Revenue Code, the notice of proposed rulemaking preceding this regulation
was submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small

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business.
Drafting Information
The principal authors of this final regulation are David Fish and Scott E. Powers, Associate Chief Counsel (Procedure &
Administration), Disclosure & Privacy Law Division.
***
Adoption of Amendments to the Regulations
Accordingly, 26 CFR parts 301 and 602 are amended as follows:

PART 301 PROCEDURE AND ADMINISTRATION
Paragraph 1. The authority citation for Part 301 is amended by adding the following entries in numerical order
to read in part as follows:

Authority: 26 U.S.C. 7805* * *
Section 301.9000-1 also issued under 5 U.S.C. 301 [*6] and 26 U.S.C. 6103 (q) and 7804;
Section 301.9000-2 also issued under 5 U.S.C. 301 and 26 U.S.C. 6103 (q) and 7804;
Section 301.9000-3 also issued under 5 U.S.C. 301 and 26 U.S.C. 6103 (q) and 7804;
Section 301.9000-4 also issued under 5 U.S.C. 301 and 26 U.S.C. 6103 (q) and 7804;
Section 301.9000-5 also issued under 5 U.S.C. 301 and 26 U.S.C. 6103 (q) and 7804;
Section 301.9000-6 also issued under 5 U.S.C. 301 and 26 U.S.C. 6103 (q) and 7804;
***

Par. 2. Section 301.9000-1 is revised and §§301.9000-2 through 301.9000-7 are added to read as follows:

§301.9000-1 Definitions when used in §§301.9000-1 through 301.9000-6.
(a) IRS records or information means any material (including copies thereof) contained in the files
(including paper, electronic or other media files) of the Internal Revenue Service (IRS), any
information relating to material contained in the files of the IRS, or any information acquired by
an IRS officer or employee, while an IRS officer or employee, as a part of the performance of
official duties or because of that IRS officer's or employee's official status with respect to the
administration of the internal revenue laws or any other laws administered by or concerning the
[*7] IRS. IRS records or information includes, but is not limited to, returns and return
information as those terms are defined in section 6103 (b) (1) and (2) of the Internal Revenue
Code (Code), tax convention information as defined in section 6105 of the Code, information
gathered during Bank Secrecy Act and money laundering investigations, and personnel records

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and other information pertaining to IRS officers and employees. IRS records and information also
includes information received, generated or collected by an IRS contractor pursuant to the
contractor's contract or agreement with the IRS. The term does not include records or information
obtained by IRS officers and employees, solely for the purpose of a federal grand jury
investigation, while under the direction and control of the United States Attorney's Office. The
term IRS records or information nevertheless does include records or information obtained by the
IRS before, during, or after a Federal grand jury investigation if the records or information are
obtained-

(1) At the administrative stage of a criminal investigation (prior to the initiation of the
grand jury);
(2) From IRS files (such as transcripts or tax returns); or
(3) For [*8] use in a subsequent civil investigation.

(b) IRS officers and employees means all officers and employees of the United States appointed
by, employed by, or subject to the directions, instructions, or orders of the Commissioner or IRS
Chief Counsel and also includes former officers and employees.
(c) IRS contractor means any person, including the person's current and former employees,
maintaining IRS records or information pursuant to a contract or agreement with the IRS, and
also includes former contractors.
(d) A request is any request for testimony of an IRS officer, employee or contractor or for
production of IRS records or information, oral or written, by any person, which is not a demand.
(e) A demand is any subpoena or other order of any court, administrative agency or other
authority, or the Congress, or a committee or subcommittee of the Congress, and any notice of
deposition (either upon oral examination or written questions), request for admissions, request for
production of documents or things, written interrogatories to parties, or other notice of, request
for, or service for discovery in a matter before any court, administrative agency or other
authority.
(f) An IRS matter [*9] is any matter before any court, administrative agency or other authority
in which the United States, the Commissioner, the IRS, or any IRS officer or employee acting in
an official capacity, or any IRS officer or employee (including an officer or employee of IRS Office
of Chief Counsel) in his or her individual capacity if the United States Department of Justice or the
IRS has agreed to represent or provide representation to the IRS officer or employee, is a party
and that is directly related to official business of the IRS or to any law administered by or
concerning the IRS, including, but not limited to, judicial and administrative proceedings
described in section 6103 (h) (4) and (1) (4) of the Internal Revenue Code.
(g) An IRS congressional matter is any matter before the Congress, or a committee or
subcommittee of the Congress, that is related to the administration of the internal revenue laws
or any other laws administered by or concerning the IRS, or to IRS records or information.
(h) A non-IRS matter is any matter that is not an IRS matter or an IRS congressional matter.
(i) A testimony authorization is a written instruction or oral instruction memorialized in writing
within a [*10] reasonable period by an authorizing official that sets forth the scope of and
limitations on proposed testimony and/or disclosure of IRS records or information issued in
response to a request or demand for IRS records or information. A testimony authorization may
grant or deny authorization to testify or disclose IRS records or information and may make an

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authorization effective only upon the occurrence of a precedent condition, such as the receipt of a
consent complying with the provisions of section 6103 (c) of the Code. To authorize testimony
means to issue the instruction described in this paragraph (i).
(j) An authorizing official is a person with delegated authority to authorize testimony and the
disclosure of IRS records or information.
§301.9000-2 Considerations in responding to a request or demand for IRS records or
information.
(a) Situations in which disclosure shall not be authorized. Authorizing officials shall not permit
testimony or disclosure of IRS records or information in response to requests or demands if
testimony or disclosure of IRS records or information would-

(1) Violate a Federal statute including, but not limited to, sections 6103 or 6105 of the
Internal Revenue [*11] Code (Code), the Privacy Act of 1974 (5 U.S.C. 552a), or a
rule of procedure, such as the grand jury secrecy rule, Fed. R. Crim. P. 6 (e);
(2) Violate a specific Federal regulation, including, but not limited to, 31 CFR 103.53;
(3) Reveal classified national security information, unless properly declassified;
(4) Reveal the identity of an informant; or
(5) Reveal investigatory records or information compiled for law enforcement purposes that
would permit interference with law enforcement proceedings or would disclose
investigative techniques and procedures, the effectiveness of which could thereby be
impaired.

(b) Assertion of privileges. Any applicable privilege or protection under law may be asserted in
response to a request or demand for testimony or disclosure of IRS records or information,
including, but not limited to, the following-

(1) Attorney-client privilege;
(2) Attorney work product doctrine; and
(3) Deliberative process (executive) privilege.

(c) Non-IRS matters. [*12] If any person makes a request or demand for IRS records or
information in connection with a non-IRS matter, authorizing officials shall take into account the
following additional factors in responding to the request or demand-

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(1) Whether the requester is a Federal agency, or a state or local government or agency
thereof;
(2) Whether the demand was issued by a Federal or state court, administrative agency or
other authority;
(3) The potential effect of the case on the administration of the internal revenue laws or
any other laws administered by or concerning the IRS;
(4) The importance of the legal issues presented;
(5) Whether the IRS records or information are available from other sources;
(6) The IRS's anticipated commitment of time and anticipated expenditure of funds
necessary to comply with the request or demand;
(7) The number of similar requests and their cumulative effect on the expenditure of IRS
resources;
(8) Whether the request or demand allows a reasonable time for compliance (generally, at
least fifteen business days);
(9) Whether the testimony or disclosure is appropriate under the rules of procedure
governing the case or matter in which the request or demand arises;
(10) Whether the request [*13] or demand involves expert witness testimony;
(11) Whether the request or demand is for the testimony of an IRS officer, employee or
contractor who is without personal knowledge of relevant facts;
(12) Whether the request or demand is for the testimony of a presidential appointee or
senior executive and whether the testimony of a lower-level official would suffice;
(13) Whether the procedures in §301.9000-5 have been followed; and
(14) Any other relevant factors that may be brought to the attention of the authorizing
official.

§301.9000-3 Testimony authorizations.
(a) Prohibition on disclosure of IRS records or information without testimony authorization. Except
as provided in paragraph (b) of this section, when a request or demand for IRS records or
information is made, no IRS officer, employee or contractor shall testify or disclose IRS records or
information to any court, administrative agency or other authority, or to the Congress, or to a
committee or subcommittee of the Congress without a testimony authorization. However, an IRS

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officer, employee or contractor may appear in person to advise that he or she is awaiting
instructions from an authorizing official with respect to the request [*14] or demand.
(b) Exceptions. No testimony authorization is required in the following circumstances-

(1) To respond to a request or demand for IRS records or information by the attorney or
other government representative representing the IRS in a particular IRS matter;
(2) To respond solely in writing, under the direction of the attorney or other government
representative, to requests and demands in IRS matters, including, but not limited to,
admissions, document production, and written interrogatories to parties;
(3) To respond to a request or demand issued to a former IRS officer, employee or
contractor for expert or opinion testimony if the testimony sought from the former IRS
officer, employee or contractor involves general knowledge (such as information
contained in published procedures of the IRS or the IRS Office of Chief Counsel) gained
while the former IRS officer, employee or contractor was employed or under contract
with the IRS; or
(4) If a more specific procedure established by the Commissioner governs the disclosure of
IRS records or information. These procedures include, but are not limited to, those
relating to: procedures pursuant to §601.702 (d) of this chapter; Freedom of
Information [*15] Act requests pursuant to 5 U.S.C. 552; Privacy Act of 1974
requests pursuant to 5 U.S.C. 552a; disclosures to state tax agencies pursuant to
section 6103 (d) of the Internal Revenue Code (Code); and disclosures to the United
States Department of Justice pursuant to an ex parte order under section 6103 (i) (1) of
the Code.

(c) Disclosures of IRS records or information with or without testimony authorization must be
permitted under other applicable law. Any disclosure of IRS records or information that is
otherwise permissible under this section must not be prohibited under applicable law. For
example, in a case in which returns and return information may be disclosed, the disclosure must
be authorized under section 6103, even if any required testimony authorization is obtained. If tax
convention information (as defined under section 6105) may be disclosed, in deciding whether the
disclosure is authorized, the authorizing official must coordinate the disclosure with the U.S.
Competent Authority.
§301.9000-4 Procedure in the event of a request or demand for IRS records or
information.
(a) Purpose and scope. This section prescribes procedures to be followed by IRS officers,
employees and [*16] contractors upon receipt of a request or demand in matters in which a
testimony authorization is or may be required.
(b) Notification of the Disclosure Officer. Except as provided in paragraphs (c), (d), and (e) of this
section, an IRS officer, employee or contractor who receives a request or demand for IRS records
or information for which a testimony authorization is or may be required shall notify promptly the
disclosure officer servicing the IRS officer's, employee's or contractor's geographic area. The IRS
officer, employee or contractor shall await instructions from the authorizing official concerning the
response to the request or demand. An IRS officer, employee, or contractor who receives a
request or demand in one of the following matters should not notify the disclosure officer, but
should follow the instructions in paragraph (c), (d), or (e) of this section, as applicable:

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(1) United States Tax Court cases.
(2) Personnel matters, labor relations matters, government contract matters, matters
related to informant claims or matters related to the rules of Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct.
1999 (1971) (Bivens [*17] matters), or matters under the Federal Tort Claims Act
(FTCA).
(3) IRS congressional matters.

(c) Requests or demands in United States Tax Court cases. An IRS officer, employee or contractor
who receives a request or demand for IRS records or information on behalf of a petitioner in a
United States Tax Court case shall notify promptly the IRS Office of Chief Counsel attorney
assigned to the case. The IRS Office of Chief Counsel attorney shall notify promptly the
authorizing official. The IRS officer, employee or contractor who received the request or demand
shall await instructions from the authorizing official.
(d) Requests or demands in personnel, labor relations, government contract, Bivens or FTCA
matters, or matters related to informant claims. An IRS officer, employee or contractor who
receives a request or demand, on behalf of an appellant, grievant, complainant or representative,
for IRS records or information in a personnel, labor relations, government contract, Bivens or
FTCA matter, or matter related to informant claims, shall notify promptly the IRS Associate Chief
Counsel (General Legal Services) attorney assigned to the case. If no IRS Associate Chief Counsel
(General Legal [*18] Services) attorney is assigned to the case, the IRS officer, employee or
contractor shall notify promptly the IRS Associate Chief Counsel (General Legal Services) attorney
servicing the geographic area. The IRS Associate Chief Counsel (General Legal Services) attorney
shall notify promptly the authorizing official. The IRS officer, employee or contractor who received
the request or demand shall await instructions from the authorizing official.
(e) Requests or demands in IRS congressional matters. An IRS officer, employee or contractor
who receives a request or demand in an IRS congressional matter shall notify promptly the IRS
Office of Legislative Affairs. The IRS officer, employee or contractor who received the request or
demand shall await instructions from the authorizing official.
(f) Opposition to a demand for IRS records or information in IRS and non-IRS matters. If, in
response to a demand for IRS records or information, an authorizing official has not had a
sufficient opportunity to issue a testimony authorization, or determines that the demand for IRS
records or information should be denied, the authorizing official shall request the government
attorney or other representative [*19] of the government to oppose the demand and
respectfully inform the court, administrative agency or other authority, by appropriate action, that
the authorizing official either has not yet issued a testimony authorization, or has issued a
testimony authorization to the IRS officer, employee or contractor that denies permission to
testify or disclose the IRS records or information. If the authorizing official denies authorization in
whole or in part, the government attorney or other representative of the government shall inform
the court, administrative agency or other authority of the reasons the authorizing official gives for
not authorizing the testimony or the disclosure of the IRS records or information or take other
action in opposition as may be appropriate (including, but not limited to, filing a motion to quash
or a motion to remove to Federal court).
(g) Procedure in the event of an adverse ruling. In the event the court, administrative agency, or
other authority rules adversely with respect to the refusal to disclose the IRS records or
information pursuant to the testimony authorization, or declines to defer a ruling until a testimony
authorization has been received, the IRS [*20] officer, employee or contractor who has
received the request or demand shall, pursuant to this section, respectfully decline to testify or

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disclose the IRS records or information.
(h) Penalties. Any IRS officer or employee who discloses IRS records or information without
following the provisions of this section or §301.9000-3, may be subject to administrative
discipline, up to and including dismissal. Any IRS officer, employee or contractor may be subject
to applicable contractual sanctions and civil or criminal penalties, including prosecution under 5
U.S.C. 552a (i), for willful disclosure in an unauthorized manner of information protected by the
Privacy Act of 1974, or under section 7213 of the Internal Revenue Code, for willful disclosure in
an unauthorized manner of return information.
(i) No creation of benefit or separate privilege. Nothing in §§301.9000-1 through 301.9000-3, this
section, and §§301.9000-5 and 301.9000-6, creates, is intended to create, or may be relied upon
to create, any right or benefit, substantive or procedural, enforceable at law by a party against
the United States. Nothing in these regulations creates a separate privilege or basis to withhold
IRS records [*21] or information.
§301.9000-5 Written statement required for requests or demands in non-IRS matters.
(a) Written statement. A request or demand for IRS records or information for use in a non-IRS
matter shall be accompanied by a written statement made by or on behalf of the party seeking
the testimony or disclosure of IRS records or information, setting forth-

(1) A brief description of the parties to and subject matter of the proceeding and the issues;
(2) A summary of the testimony, IRS records or information sought, the relevance to the
proceeding, and the estimated volume of IRS records involved;
(3) The time that will be required to present the testimony (on both direct and cross
examination);
(4) Whether any of the IRS records or information is a return or is return information (as
defined in section 6103 (b) of the Internal Revenue Code (Code)), or tax convention
information (as defined in section 6105 (c) (1) of the Code), and the statutory authority
for the disclosure of the return or return information (and, if no consent to disclose
pursuant to section 6103 (c) of the Code accompanies the request or demand, the
reason consent is not necessary);
(5) Whether a declaration of an IRS officer, [*22] employee or contractor under penalties
of perjury pursuant to 28 U.S.C. 1746 would suffice in lieu of deposition or trial
testimony;
(6) Whether deposition or trial testimony is necessary in a situation in which IRS records
may be authenticated without testimony under applicable rules of evidence and
procedure;
(7) Whether IRS records or information are available from other sources; and
(8) A statement that the request or demand allows a reasonable time (generally at least
fifteen business days) for compliance.

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(b) Permissible waiver of statement. The requirement of a written statement in paragraph (a) of
this section may be waived by the authorizing official for good cause.
§301.9000-6 Examples.
The following examples illustrate the provisions of §§301.9000-1 through 301.9000-5:

Example 1. A taxpayer sues a practitioner in state court for malpractice in connection
with the practitioner's preparation of a Federal income tax return. The taxpayer
subpoenas an IRS employee to testify concerning the IRS employee's examination of
the taxpayer's Federal income tax return. The taxpayer provides the statement
required by §301.9000-5. This is a non-IRS matter. A testimony authorization would
be required [*23] for the IRS employee to testify. (In addition, the taxpayer would
be required to execute an appropriate consent under section 6103 (c) of the Code).
The IRS would oppose the IRS employee's appearance in this case because the IRS is
a disinterested party with respect to the dispute and would consider the commitment
of resources to comply with the subpoena inappropriate.
Example 2. In a state judicial proceeding concerning child support, the child's
custodial parent subpoenas for a deposition an IRS agent who is examining certain
post-divorce Federal income tax returns of the non-custodial parent. This is a non-IRS
matter. The custodial parent submits with the subpoena the statement required by
§301.9000-5 stating as the reason for the lack of taxpayer consent to disclosure that
the non-custodial parent has refused to provide the consent (both a consent from the
taxpayer complying with section 6103 (c) and a testimony authorization would be
required prior to the IRS agent testifying at the deposition). If taxpayer consent is
obtained, the IRS may provide a declaration or certified return information of the
taxpayer. A deposition would be unnecessary under the circumstances.
Example 3. [*24] The chairperson of a congressional committee requests the
appearance of an IRS employee before the committee and committee staff to submit
to questioning by committee staff concerning the procedures for processing Federal
employment tax returns. This is an IRS congressional matter. Even though
questioning would not involve the disclosure of returns or return information, the
questioning would involve the disclosure of IRS records or information; therefore, a
testimony authorization would be required. The IRS employee must contact the IRS
Office of Legislative Affairs for instructions before appearing.
Example 4. The IRS opens a criminal investigation as to the tax liabilities of a
taxpayer. This is an IRS matter. During the criminal investigation, the IRS refers the
matter to the United States Department of Justice, requesting the institution of a
Federal grand jury to investigate further potential criminal tax violations. The United
States Department of Justice approves the request and initiates a grand jury
investigation. The grand jury indicts the taxpayer. During the taxpayer's trial, the
taxpayer subpoenas an IRS special agent for testimony regarding the investigation.
The records [*25] and information collected during the administrative stage of the
investigation, including the taxpayer's tax returns from IRS files, are IRS records and
information. A testimony authorization is required for the IRS special agent to testify
regarding this information. However, no IRS testimony authorization is required
regarding the information collected by the IRS special agent when the IRS special
agent was acting under the direction and control of the United States Attorney's Office
in the Federal grand jury investigation. That information is not IRS records or
information within the meaning of §301.9000-1(a). Disclosure of that information
should be coordinated with the United States Attorney's Office.
Example 5. The United States Department of Justice attorney representing the IRS in

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a suit for refund requests testimony from an IRS revenue agent. This is an IRS
matter. A testimony authorization would not be required for the IRS revenue agent to
testify because the testimony was requested by the government attorney.
Example 6. In response to a request by the taxpayer's counsel to interview an IRS
revenue agent who was involved in a case at the administrative level, the United
States [*26] Department of Justice attorney representing the IRS in a suit for
refund asks that the IRS revenue agent be made available to be interviewed. This is
an IRS matter. A testimony authorization would be required for the IRS revenue
agent to testify because the testimony was first requested by taxpayer's counsel.
Example 7. A state assistant attorney general, acting in accordance with a
recommendation from his state's department of revenue, is prosecuting a taxpayer
under a state criminal law proscribing the intentional failure to file a state income tax
return. The assistant attorney general serves an IRS employee with a subpoena to
testify concerning the taxpayer's Federal income tax return filing history. This is a
non-IRS matter. This is also a state judicial proceeding pertaining to tax
administration within the meaning of section 6103 (h) (4) and (b) (4). As such, the
requirements of section 6103 (h) (4) apply. A testimony authorization would be
required for the testimony demand in the subpoena.
Example 8. A former IRS revenue agent is requested to testify in a divorce
proceeding. The request seeks testimony explaining the meaning of entries appearing
on one party's transcript of account, [*27] which is already in the possession of the
parties. This is a non-IRS matter. No testimony authorization is required because the
testimony requested from the former IRS employee involves general knowledge
gained while the former IRS revenue agent was employed with the IRS.
Example 9. A Department of Justice attorney requests an IRS employee to testify in a
refund suit involving Taxpayer A. The testimony may include tax convention
information, as defined in section 6105, which was originally obtained by the IRS
from a treaty partner in connection with a tax case against Taxpayer B. While no
testimony authorization is necessary, because the testimony is being requested by
government counsel in a tax matter, the IRS employee may not testify (or otherwise
disclose IRS records or information) without coordinating with the U.S. Competent
Authority, as disclosure of tax convention information is governed by section 6105.
The disclosure must also meet the requirements in section 6103 (h) (4).
Example 10. In a state court tort action, Defendant subpoenas IRS for Plaintiff's
federal income tax returns for particular taxable years. This is a non-IRS matter. The
Disclosure Officer instructs Defendant [*28] that the IRS has established
procedures for obtaining copies of Federal income tax returns. Section 601.702 (d)
(1) of this chapter establishes the procedures for obtaining Federal tax returns by
requiring written requests for copies of tax returns using IRS Form 4506, "Requestfor
Copy of Tax Return." At Defendant's request, Plaintiff executes Form 4506, naming
Defendant's counsel as designee, and the form is properly submitted to IRS. A
testimony authorization would not be required to disclose Plaintiff's returns to
Defendant's counsel.

§301.9000-7 Effective date.
These regulations are applicable on February 14, 2005.

PART 602-OMB CONTROL NUMBERS UNDER THE PAPERWORK REDUCTION ACT

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Par. 3. The authority citation for part 602 continues to read as follows:

Authority: 26 U.S.C. 7805.

Par. 4. In §602.101, paragraph (b) is amended by adding an entry for §301.9000-5 in numerical order to the
table to read as follows:

§602.101 OMB Control numbers.
***
(b)* * *
CFR part or section where identified and
described

Current OMB control No

***
301.9000-5

1545-1850

***

Mark E. Matthews,
Deputy Commissioner for Services and Enforcement.
Approved February 3, 2005.
Eric Solomon,
Acting Deputy Assistant Secretary of [*29] the Treasury.
(Filed by the Office of the Federal Register on February 11, 2005, 8:45 a.m., and published in the issue of the Federal
Register for February 14, 2005, 70 F.R. 7396)
Service:
Citation:
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