Ezel / IRS Rulings / 200937031

CCA 200937031: FOIA withholding for an open examination may end when the proceeding closes

Number
200937031
Outcome
Advice
Document type
Chief Counsel Advice
IRS subject
Freedom of Information Act
Topics
Other topics
Code sections
§ 552
Ruling dated
February 27, 2009
Publicly released
September 11, 2009
Source
View Official PDF

Apply this to your situation

This page covers legal advice the IRS Office of Chief Counsel wrote for IRS staff, issued in 2009, which can't be cited as precedent. Ask about your situation and see what the current Code and IRS guidance say, with citations.

Currency note: this determination was released in 2009
Statutory amendments, regulation changes, court decisions, or later IRS guidance may have changed the analysis since then. Treat this page as historical context, not current tax advice. Verify current law before relying on any specific rule, threshold, or position mentioned here.
Not precedent. Under 26 U.S.C. § 6110(k)(3), this written determination may not be used or cited as precedent. It is advice from the IRS Office of Chief Counsel to IRS personnel on the facts they presented, and identifying details were redacted by the IRS before release. The official IRS release (linked on this page as a PDF) is the authoritative source.
About this page: The plain-English summary and ruling snapshot below were written by Ezel based on the official IRS release. The full text is the IRS's own document.
View official IRS release (PDF)

Plain-English summary

Chief Counsel advised that information gathered during an ongoing examination could be withheld under FOIA subsection (b)(7) because disclosure might impair the government's law-enforcement abilities. The advice states that this protection is temporal and may end when the examination or related litigation is no longer open or active. It also discusses FOIA subsections (b)(5), (b)(4), and (b)(6), including privileged material and privacy interests. The advice notes that personal-privacy protection does not apply to information concerning or received from businesses.

Ruling snapshot

  • Question: Which FOIA exemptions may protect information gathered during an ongoing tax examination, and how long may the protection last?
  • Outcome: Advice given.
  • Key authorities: Freedom of Information Act, 5 U.S.C. § 552(b)(4)-(7).

Full text (IRS public release)

--

ID: CCA-227122-09 Number: 200937031
Release Date: 9/11/2009
Office: --------------
UILC: 0552.00-00

From: --------------------
Sent: February 27, 2009
To: -------------------
Cc: ----------------------------
Subject: [----------------------]

Insomuch as the exam is still ongoing, information we received in the course of the exam can be withheld under FOIA subsection (b)(7) as gathered for law enforcement purposes the disclosure of which may impair the government's law enforcement abilities. To some extent the ability to withhold information under (b)(7) is temporal and lasts only so long as the law enforcement proceeding remains open or live. As such, if the examination concludes and there is no change, or the taxpayer agrees to the change or if litigation is commenced and settled or otherwise decided, the law enforcement exception to disclosure under the FOIA may terminate requiring the IRS to disclose the information, if requested. ---------------------
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-----------------------------------------------------. Subsection (b)(5) allows us, generally, to withhold information that would not be available in discovery as it is privileged. Subsections (b)(4) and (b)(6) also allow for withholding based on some kind of privacy expectation. This may be personal privacy, that does not apply to information pertaining to or received from, businesses. I am not in the office today and therefore do not have access to my FOIA stuff, but will be back on Tuesday. Let me take a look at these additional FOIA provisions when I return to the office on Tuesday and get back to you.

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