Computer records may prove a lost collection waiver

Plain-English summary

Chief Counsel was asked whether account entries could show that a Form 900 collection waiver had been processed and accepted when the physical form was missing. The advice explained that loss of the original is not fatal if the IRS has reliable secondary evidence proving the document existed. It cited cases allowing circumstantial or computer-record evidence to establish waivers and offers in compromise, including transcript entries and testimony about IRS processing procedures. It also noted that Federal Rule of Evidence 1004 permits other evidence of a writing's contents when originals were lost or destroyed without bad faith.

Ruling snapshot

• Question: Can IRS computer entries help prove that a missing Form 900 waiver was processed and accepted?
• Outcome: Advice given that reliable secondary evidence may establish the waiver.
• Key authorities: IRC § 6502; Fed. R. Evid. 1004(1); United States v. Conry; United States v. McGaughey; Randle v. United States.

Full text (IRS public release)

ID: CCA_2019020712093226
UILC: 6502.03-00

Number: 201906008
Release Date: 2/8/2019
From: -------------------
Sent: Thursday, February 07, 2019 12:09:32 PM
To:
Cc:
Bcc:
Subject: Lost Form 900

-----------Please give me a call about whether computer entries on an account may
indicate a Form 900 was processed and accepted.

In general, the fact that the Service no longer has a physical copy isn’t fatal if it has
“reliable secondary evidence” that proves a document existed. As noted in the IRS
Practice & Procedure treatise, “Because a tax collection waiver can make collection
action taken long after a tax assessment legal, the very existence of a waiver can
sometimes be an issue. The Service may use circumstantial evidence to prove the
existence of a waiver, even when the original is lost or destroyed. See United States v.
Conry, 631 F2d 599 (9th Cir. 1980); United States v. McGaughey, 977 F2d 1067, 1071–
1074 (7th Cir. 1992) (secondary evidence was received by fact that original form was
missing).” IRS Practice & Procedure, Saltzman & Book, ¶ 5.07, The Statute Of
Limitations On Collection (October 2018) at FN 586 under ¶ 5.07[2] Period Extended
by Agreement. Also, these case are cited in Randle v. United States, 2000 WL
1739314, 88 AFTR2d 2001-6812, 2000-2 USTC ¶ 50,715 (CD Cal. 2000. In Randle the
Service established the existence and validity of limitations period waivers executed via
offers in compromise through the “Offer in Compromise on File” entries on the
transcripts for those years and an employee’s declaration attesting to the Service's
procedures in processing offers in compromise and entering data regarding offers into
its computer records. The court cited the above cases at *10 while recognizing in FN 18
that an original is not required and other evidence of the contents of a writing is
admissible “if all originals are lost or have been destroyed, unless the proponent lost or
destroyed them in bad faith.” Fed.R.Evid. 1004(1).

Thanks, ---------------------------------------------------