Today’s news is the latest development in a long-running dispute between Tax Analysts, the nonprofit publisher of Tax Notes and many other tax-related publications, and the IRS over Internal Revenue Code section 6110, which requires that IRS documents in which the Office of Chief Counsel provides legal advice to IRS field personnel be open to public inspection.
The IRS previously argued it could treat e-mail that its Office of Chief Counsel prepared in less than two hours the same way it treated informal telephone advice and thus did not have to disclose the e-mails. Tax Analysts filed suit in May 2005 to force release of those e-mails, the U.S. District Court for the District of Columbia ruled for the publisher in February 2006, and the U.S. Court of Appeals for the District of Columbia affirmed that decision in July 2007.
Now the IRS has begun to comply with the court rulings, sending to Tax Analysts 157 pages of e-mail advice, consisting of 130 documents, that the Office of Chief Counsel prepared from 2004 to 2007.
Within those documents, Tax Analysts found 14 instances that it says were clear cases of chief counsel advice that the IRS should have voluntarily disclosed, according to a story in Tax Notes Today, an online news journal of Tax Analysts. They include memos or e-mails on trust fund recovery penalties, disaster losses by public utilities, tax filing extensions, IRS disclosure of return information to government law enforcement agencies, and other issues.
In a related matter, Tax Analysts and the IRS have agreed on a procedure for how the IRS will release other relevant e-mails under the court decisions — past e-mails as well as those that the Office of Chief Counsel creates in the future.
In a status report that the parties filed with the district court in late March, the IRS said it expects to finish releasing the e-mails from 2004 to 2007 in two batches — one on May 1 and the other on June 5.
Also in that status report, the IRS said it is developing two other processes — one through which to provide future e-mails to the public regularly, the other through which to find other relevant e-mails issued in the past (outside the 2004 to 2007 period) and provide them to Tax Analysts.
“This is just the beginning of the release process,” said Christopher Bergin, president of Tax Analysts. “There is much more to come. As the IRS, like the rest of us, uses e-mail more and more to communicate important information, the documents being released as a result of Tax Analysts’ efforts will provide significant guidance to practitioners and the taxpaying public.”
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