Posted by: Steven Toscher | September 13, 2019

Don’t Forget About Making a FOIA Request – by Steven Toscher and Gary Markarian

A recent report  by  the Treasury Inspector General for Tax Administration (TIGTA)  after an audit into the Internal Revenue Service’s (IRS) denial of Freedom of Information Act (FOIA) requests for the 2018 fiscal year reminds us of the importance of using FOIA in the course of our dealings with the IRS and to not routinely accept the IRS’s failure to provide all the responsive information taxpayers are entitled to.

FOIA Requests

FOIA requests allow individuals to request records from government agencies, which the government must make available, unless the requested information meets certain exemptions. FOIA contains a number of exemptions from disclosure.[1]  Certain records compiled for law enforcement can be withheld if production of the information would (1) interfere with enforcement proceedings; (2) deprive an individual of a right to a fair trial; (3) constitute an unwarranted invasion of personal privacy; (4) disclose the identity of a confidential source; (5) disclose techniques, procedures, or guidelines for law enforcement investigations or prosecutions; and (6) could endanger the life or safety of an individual. [2]

Another exemption is information that, by statute, is not subject to disclosure.[3]  Under I.R.C. § 6103, the IRS cannot disclose information about a taxpayer’s returns or return information to an individual other than the taxpayer or the taxpayer’s representative.[4]  I.R.C. § 6103 thus provides another exception to produce information requested in a FOIA.

TIGTA Audit

TIGTA conducts periodic audits to determine whether the IRS is properly implementing the exceptions described above and withholding information requested by taxpayers. For the most recent audit, TIGTA reviewed 80 of the 3,547 FOIA requests where the IRS denied requests in full or in part on the basis of I.R.C. § 6103 or FOIA exemption (b)(7), as well as requests for which no information was provided because the IRS determined no responsive records existed or the request was imperfect. An imperfect request is not specific enough to process, is too broad, or does not comply with statutory requirements.

Results of the Audit

TIGTA determined that information was properly withheld in 73 of the 80 cases reviewed in the statistical sample. Not bad.  However, they found that a total of 7, or 8.75%, of the cases examined showed the IRS had improperly withheld information.

In one case, the IRS cited FOIA exemption (b)(7) to withhold the information regarding IRS examination techniques. However, the same information requested in the FOIA was publicly available on the IRS’ website. The IRS has attributed this mistake to “employee error.”

In 5 cases, the IRS cited FOIA exemption (b)(7) stating the information would disclose law enforcement techniques that would risk circumvention of the law, but TIGTA found that disclosure would not create this risk.

In the last of the 7 cases, the IRS withheld the information citing I.R.C. § 6103 (c) and (e) because the caseworker believed the records were beyond the retention period. TIGTA concluded that the retention period had changed before this determination and the information was available, but the procedures applied by the caseworker had not been updated.

In all 7 of these cases, a manager had reviewed the cases and found they were accurate and complete.

Significant Rise in Improper Withholdings Since the 2017 Fiscal Year

In TIGTA’s report of the review of denials for the 2017 fiscal year, only 1.33% of the sample reviewed was improperly withheld. The latest audit report shows an increase of 7.42%.

It is important to note that TIGTA and the IRS state that “the IRS has already provided training and updated procedures to address the issues identified.”[5] This should help reduce the number of responses for with the IRS improperly withholds information in in the future.

Having all the facts in an IRS matter is critical to a successful outcome and utilizing the FOIA Procedures is an important tool to obtain information. The IRS does a good job in complying with its obligations but is not perfect, as the TIGTA report shows. It’s up to practitioners to help the IRS do its job better by not blindly accepting unfounded denials of access to information. The recent report should make our job a little easier.

Steven Toscher is a principal at Hochman Salkin Toscher Perez, P.C., specializing in civil and criminal tax litigation. Mr. Toscher is a Certified Tax Specialist in Taxation, the State Bar of California Board of Legal Specialization and represents clients throughout the United States and elsewhere involving federal and state, civil and criminal tax controversies and tax litigation. You can contact Mr. Toscher at toscher@taxlitigator.com.

Gary Markarian is a Tax Associate of Hochman Salkin Toscher Perez P.C., and a recent graduate of the joint JD/LL.M. Taxation program at Loyola Law School, Los Angeles. Mr. Markarian’s prior tax experience includes externships with the Tax Division of the U.S. Attorney’s Office (CDCA), the Office of Chief Counsel, IRS (LB&I), Los Angeles, and Loyola Law School’s Sales and Use Tax Clinic.

[1] 5 U.S.C. §552(b).

[2] 5 U.S.C. § 552(b)(7)

[3] 5 U.S.C. §552(b).(3).

[4] I.R.C. § 6103(c); I.R.C. § 6103(e)

[5] TIGTA, Ref. No. 2019-10-057, Fiscal Year 2019 Statutory Review of Compliance With the Freedom of Information Act (Sept. 2019).


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