Upholding a lower court ruling, the U.S. Court of Appeals for the District of Columbia Circuit rejected IRS contentions that it could treat e-mails that its Office of Chief Counsel prepares in less than two hours as “informal telephone advice,” not “Chief Counsel advice” that must be disclosed.
“We conclude that the plain statutory language mandates that the IRS disclose the e-mails,” Circuit Court Judge Karen LeCraft Henderson wrote for a unanimous court in a nine-page decision.
“This is a clear victory for the taxpayers,” said Christopher Bergin, president of Tax Analysts, the non-profit publisher of Tax Notes magazine and many other print and online publications. “But it is just one in a long series of cases over more than 30 years that Tax Analysts was forced to file in order to get the public what it deserves to have. Our efforts will continue in the hope that, at some point, the IRS will change its approach to public information.”
Today’s ruling centered on Internal Revenue Code section 6110, which states that IRS documents in which the Office of Chief Counsel provides legal advice to IRS field personnel “shall be open to public inspection.” The appellate court had previously ruled that under this definition, the IRS was required to disclose Field Service Advice memoranda. Congress then amended section 6110 to expressly include “Chief Counsel advice” as part of its disclosure requirement and to define that term to include “written advice or instruction.”
In late 1998, the IRS stated that it could treat e-mail prepared by Office of Chief Counsel lawyers in less than two hours the same way that it treated informal telephone advice and, thus, it did not have to disclose the e-mails. Tax Analysts rejected that argument and, in June 2004, began to request all such e-mails prepared in less than two hours. Having received no such documents from the IRS and after almost a year of delay, Tax Analysts filed suit in the U.S. District Court for the District of Columbia.
That court ruled for Tax Analysts on February 27, 2006. The IRS appealed two months later, leading to today’s decision.
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