26 USC 6110 - Public inspection of written determinations

U.S Code last checked for updates: Nov 26, 2024

§ 6110.

Public inspection of written determinations

(a)

General rule

(b)

Definitions

For purposes of this section—

(1)

Written determination

(A)

In general

(B)

Exceptions

(2)

Background file document

(3)

Reference and general written determinations

(A)

Reference written determination

(B)

General written determination

(c)

Exemptions from disclosure

Before making any written determination or background file document open or available to public inspection under subsection (a), the Secretary shall delete—

(1)

the names, addresses, and other identifying details of the person to whom the written determination pertains and of any other person, other than a person with respect to whom a notation is made under subsection (d)(1), identified in the written determination or any background file document;

(2)

information specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy, and which is in fact properly classified pursuant to such Executive order;

(3)

information specifically exempted from disclosure by any statute (other than this title) which is applicable to the Internal Revenue Service;

(4)

trade secrets and commercial or financial information obtained from a person and privileged or confidential;

(5)

information the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;

(6)

information contained in or related to examination, operating, or condition reports prepared by, or on behalf of, or for use of an agency responsible for the regulation or supervision of financial institutions; and

(7)

geological and geophysical information and data, including maps, concerning wells.

The Secretary shall determine the appropriate extent of such deletions and, except in the case of intentional or willful disregard of this subsection, shall not be required to make such deletions (nor be liable for failure to make deletions) unless the Secretary has agreed to such deletions or has been ordered by a court (in a proceeding under subsection (f)(3)) to make such deletions.

(d)

Procedures with regard to third party contacts

(1)

Notations

(2)

Exception

(3)

Disclosure of identity

(4)

Period in which to bring action

(e)

Background file documents

(f)

Resolution of disputes relating to disclosure

(1)

Notice of intention to disclose

(2)

Administrative remedies

The Secretary shall prescribe regulations establishing administrative remedies with respect to—

(A)

requests for additional disclosure of any written determination of any background file document, and

(B)

requests to restrain disclosure.

(3)

Action to restrain disclosure

(A)

Creation of remedy

Any person—

(i)

to whom a written determination pertains (or a successor in interest, executor, or other person authorized by law to act for or on behalf of such person), or who has a direct interest in maintaining the confidentiality of any such written determination or background file document (or portion thereof),

(ii)

who disagrees with any failure to make a deletion with respect to that portion of any written determination or any background file document which is to be open or available to public inspection, and

(iii)

who has exhausted his administrative remedies as prescribed pursuant to paragraph (2),

may, within 60 days after the mailing by the Secretary of a notice of intention to disclose any written determination or background file document under paragraph (1), together with the proposed deletions, file a petition in the United States Tax Court (anonymously, if appropriate) for a determination with respect to that portion of such written determination or background file document which is to be open to public inspection.

(B)

Notice to certain persons

(4)

Action to obtain additional disclosure

(A)

Creation of remedy

(B)

Intervention

(5)

Expedition of determination

(6)

Publicity of Tax Court proceedings

(g)

Time for disclosure

(1)

In general

Except as otherwise provided in this section, the text of any written determination or any background file document (as modified under subsection (c)) shall be open or available to public inspection—

(A)

no earlier than 75 days, and no later than 90 days, after the notice provided in subsection (f)(1) is mailed, or, if later,

(B)

within 30 days after the date on which a court decision under subsection (f)(3) becomes final.

(2)

Postponement by order of court

(3)

Postponement of disclosure for up to 90 days

(4)

Additional 180 days

If—

(A)

the transaction set forth in the written determination is not completed during the period set forth in paragraph (3), and

(B)

the person by whom or on whose behalf the request for the written determination was made establishes to the satisfaction of the Secretary that good cause exists for additional delay in opening the written determination to public inspection,

the period referred to in paragraph (3) shall be further extended (for not to exceed an additional 180 days) until the day which is 15 days after the date of the Secretary’s determination that the transaction set forth in the written determination has been completed.

(5)

Special rules for certain written determinations, etc.

Notwithstanding the provisions of paragraph (1), the Secretary shall not be required to make available to the public—

(A)

any technical advice memorandum, any Chief Counsel advice, and any related background file document involving any matter which is the subject of a civil fraud or criminal investigation or jeopardy or termination assessment until after any action relating to such investigation or assessment is completed, or

(B)

any general written determination and any related background file document that relates solely to approval of the Secretary of any adoption or change of—

(i)

the funding method or plan year of a plan under section 412,

(ii)

a taxpayer’s annual accounting period under section 442,

(iii)

a taxpayer’s method of accounting under section 446(e), or

(iv)

a partnership’s or partner’s taxable year under section 706,

but the Secretary shall make any such written determination and related background file document available upon the written request of any person after the date on which (except for this subparagraph) such determination would be open to public inspection.

(h)

Disclosure of prior written determinations and related background file documents

(1)

In general

(2)

Time for disclosure

In the case of any written determination or background file document which is to be made open or available to public inspection under paragraph (1)—

(A)

subsection (g) shall not apply, but

(B)

such written determination or background file document shall be made open or available to public inspection at the earliest practicable date after funds for that purpose have been appropriated and made available to the Internal Revenue Service.

(3)

Order of release

Any written determination or background file document described in paragraph (1) shall be open or available to public inspection in the following order starting with the most recent written determination in each category:

(A)

reference written determinations issued under this title;

(B)

general written determinations issued after July 4, 1967; and

(C)

reference written determinations issued under the Internal Revenue Code of 1939 or corresponding provisions of prior law.

General written determinations not described in subparagraph (B) shall be open to public inspection on written request, but not until after the written determinations referred to in subparagraphs (A), (B), and (C) are open to public inspection.

(4)

Notice that prior written determinations are open to public inspection

(5)

Exclusion

(i)

Special rules for disclosure of Chief Counsel advice

(1)

Chief Counsel advice defined

(A)

In general

For purposes of this section, the term “Chief Counsel advice” means written advice or instruction, under whatever name or designation, prepared by any national office component of the Office of Chief Counsel which—

(i)

is issued to field or service center employees of the Service or regional or district employees of the Office of Chief Counsel; and

(ii)

conveys—

(I)

any legal interpretation of a revenue provision;

(II)

any Internal Revenue Service or Office of Chief Counsel position or policy concerning a revenue provision; or

(III)

any legal interpretation of State law, foreign law, or other Federal law relating to the assessment or collection of any liability under a revenue provision.

(B)

Revenue provision defined

(2)

Additional documents treated as Chief Counsel advice

(3)

Deletions for Chief Counsel advice

In the case of Chief Counsel advice and related background file documents open to public inspection pursuant to this section—

(A)

paragraphs (2) through (7) of subsection (c) shall not apply, but

(B)

the Secretary may make deletions of material in accordance with subsections (b) and (c) of section 552 of title 5, United States Code, except that in applying subsection (b)(3) of such section, no statutory provision of this title shall be taken into account.

(4)

Notice of intention to disclose

(A)

Nontaxpayer-specific Chief Counsel advice

In the case of Chief Counsel advice which is written without reference to a specific taxpayer or group of specific taxpayers—

(i)

subsection (f)(1) shall not apply; and

(ii)

the Secretary shall, within 60 days after the issuance of the Chief Counsel advice, complete any deletions described in subsection (c)(1) or paragraph (3) and make the Chief Counsel advice, as so edited, open for public inspection.

(B)

Taxpayer-specific Chief Counsel advice

(j)

Civil remedies

(1)

Civil action

Whenever the Secretary—

(A)

fails to make deletions required in accordance with subsection (c), or

(B)

fails to follow the procedures in subsection (g) or (i)(4)(B),

the recipient of the written determination or any person identified in the written determination shall have as an exclusive civil remedy an action against the Secretary in the United States Court of Federal Claims, which shall have jurisdiction to hear any action under this paragraph.

(2)

Damages

In any suit brought under the provisions of paragraph (1)(A) in which the Court determines that an employee of the Internal Revenue Service intentionally or willfully failed to delete in accordance with subsection (c), or in any suit brought under subparagraph (1)(B) in which the Court determines that an employee intentionally or willfully failed to act in accordance with subsection (g) or (i)(4)(B), the United States shall be liable to the person in an amount equal to the sum of—

(A)

actual damages sustained by the person but in no case shall a person be entitled to receive less than the sum of $1,000, and

(B)

the costs of the action together with reasonable attorney’s fees as determined by the Court.

(k)

Special provisions

(1)

Fees

The Secretary is authorized to assess actual costs—

(A)

for duplication of any written determination or background file document made open or available to the public under this section, and

(B)

incurred in searching for and making deletions required under subsection (c)(1) or (i)(3) from any written determination or background file document which is available to public inspection only upon written request.

The Secretary shall furnish any written determination or background file document without charge or at a reduced charge if he determines that waiver or reduction of the fee is in the public interest because furnishing such determination or background file document can be considered as primarily benefiting the general public.

(2)

Records disposal procedures

(3)

Precedential status

(l)

Section not to apply

This section shall not apply to—

(1)

any matter to which section 6104 or 6105 applies, or

(2)

any—

(A)

written determination issued pursuant to a request made before November 1, 1976, with respect to the exempt status under section 501(a) of an organization described in section 501(c) or (d), the status of an organization as a private foundation under section 509(a), or the status of an organization as an operating foundation under section 4942(j)(3),

(B)

written determination described in subsection (g)(5)(B) issued pursuant to a request made before November 1, 1976,

(C)

determination letter not otherwise described in subparagraph (A), (B), or (E) issued pursuant to a request made before November 1, 1976,

(D)

background file document relating to any general written determination issued before July 5, 1967, or

(E)

letter or other document described in section 6104(a)(1)(B)(iv) issued before September 2, 1974 .

(m)

Exclusive remedy

(Added Pub. L. 94–455, title XII, § 1201(a), Oct. 4, 1976, 90 Stat. 1660; amended Pub. L. 97–164, title I, § 160(a)(9), Apr. 2, 1982, 96 Stat. 48; Pub. L. 98–620, title IV, § 402(28)(B), Nov. 8, 1984, 98 Stat. 3359; Pub. L. 105–206, title III, § 3509(a)–(c), July 22, 1998, 112 Stat. 772, 773; Pub. L. 106–170, title V, § 521(a)(2), Dec. 17, 1999, 113 Stat. 1925; Pub. L. 106–554, § 1(a)(7) [title III, §§ 304(c), 313(e)], Dec. 21, 2000, 114 Stat. 2763, 2763A–634, 2763A–643; Pub. L. 110–172, § 10(a), Dec. 29, 2007, 121 Stat. 2484; Pub. L. 115–141, div. U, title IV, § 401(a)(325)(A), Mar. 23, 2018, 132 Stat. 1199.)

cite as: 26 USC 6110

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