DIF examination score could be withheld under section 6103

Plain-English summary

Chief Counsel advised that the IRS did not need to invoke a common-law privilege to withhold information protected by federal statute. Section 6103(b)(2)(A) expressly provides that no law requires disclosure of standards used to select returns for examination. A Discriminant Function, or DIF, score falls within that category, so the IRS could withhold the score under the statute itself.

Ruling snapshot

• Question: Could the IRS withhold a DIF score in discovery without asserting a common-law privilege?
• Outcome: yes; section 6103(b)(2)(A) protects it as an examination-selection standard
• Key authorities: IRC § 6103(b)(2)(A); Federal Rule of Evidence 501

Full text (IRS public release)

ID:      CCA_2019022212164949
UILC:    6103.00-00, 6103.01-00

Number: 201919011
Release Date: 5/10/2019
From:
Sent: Friday, February 22, 2019 12:16:50 PM
To:
Cc:
Bcc:
Subject: RE: Additional Discovery Question


Hi,

The IRS does not need to assert any common law privileges to withhold information protected
by a federal statute. FRE 501. The flush language of section 6103(b)(2)(A) reads, “Nothing in
the preceding sentence, or in any other provision of law, shall be construed to require the
disclosure of standards used or to be used for the selection of returns for examination…” A
DIF score fits this category. We would withhold a DIF score under section 6103(b)(2)(A).

Let me know if you have any other questions—happy to help.