TAXATION WITH REPRESENTATION FUND,
Plaintiff
v.
INTERNAL REVENUE SERVICE,
Defendant
IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA
(Filed January 12, 1979)
ANSWER
Comes now defendant, by its attorney, and answer's plaintiff's complaint herein as follows:
1. Defendant admits the allegations contained in paragraph 1 of the Complaint.
2. Defendant admits the allegations contained in paragraph 2 of the Complaint.
3. Defendant admits the allegations contained in paragraph 3 of the Complaint, except that defendant denies that any index exists for Technical Memoranda.
4. With respect to the allegations contained in paragraph 4 of the Complaint, defendant admits that GCM's are prepared by the Interpretative Division but avers that the Interpretative Division is under the authority of the Office of Chief Counsel, Internal Revenue Service and that each office is part of the General Counsel's Office of the Department of the Treasury. Defendant avers that OCR's are also prepared by the General Litigation Division and the Employee Plans and Exempt Organizations Division, also under the authority of the Office of the Chief Counsel, Internal Revenue Service. Defendant denies that GCM's constitute final legal opinions but admits that some GCM's are written with regard to the IRS Revenue Rulings published in the Internal Revenue Bulletin, and letter rulings made public pursuant to § 6110 of the Internal Revenue Code. Defendant admits that GCM's were published in the Cumulative Bulletin with deletion of details that might identify a taxpayer, until about 25 years ago, but denies that all GCM's were so published. Defendant admits that IRS maintains an index of GCM's. Defendant admits that the index and the GCM's are regularly referred to by IRS personnel but denies that GCM's are followed and applied as authoritative by IRS personnel in preparing rulings and rendering decisions on other matters. Defendant avers that IRS personnel are instructed not to use GCM's as precedent in the disposition of other cases by IRM §4245.3. Defendant denies that GCM's constitute final agency opinions or statements of policy within the meaning of 5 U.S.C., § 552(a)(2). Defendant admits that GCM's are not published nor are the indices thereto made public. Defendant admits that GCM's and the indices are identifiable records within the meaning of 5 U.S.C., §552(a)(3).
5. Defendant admits the allegations contained in paragraph 5 of the Complaint.
6. Defendant admits that AOD's are memoranda prepared by the Internal Revenue Service's Office of Chief Counsel, which is part of the General Counsel's Office of the Department of Treasury. Defendant denies that AOD's explain the basis for the decision of the Commissioner to "acquiesce" or "non-acquiesce" in court decisions of particular tax issues. Defendant avers that AOD's contain a brief discussion of the facts and issues involved with a recommendations that the Commissioner either "acquiesce" or "non-acquiesce" in a decision of the Tax Court. Defendant avers that AOD's are also prepared and indexed for some Federal District Court and Court of Clams decisions. Defendant further avers that approval and acceptance of an AOD by the Commissioner does not necessarily seen acceptance and approval of any or all of the reasons assigned by the Office of Chief Counsel for its conclusions. Defendant admits that the Internal Revenue Service [MISSING TEXT] publishes any reasoning or opinion underlying its decisions to acquiesce or non-acquiesce. Defendant admits that the Internal Revenue Service maintains a computerized indexing system for AOD's and avers that such index includes all AOD's written since 1966 and some AOD's written between 1963 and 1966. Defendant further avers that such index does not include those AOD's written by the General Litigation Division of the Office of Chief Counsel. Defendant admits that the index and the AOD's are regularly referred to by IRS personnel but denies that AOD's are followed and applied as authoritative by IRS personnel in preparing rules and rendering decisions on other matters. Defendant avers that acquiescences in adverse decisions are relied upon by Service personnel as conclusions of the Service only to the application of the law to the facts in the particular case. Defendant further avers that Service personnel are cautioned to extend application of the decision to a similar case only when the facts and circumstances are substantially the sane and that Service personnel are further cautioned to consider the effect of new legislation, regulations, and rulings as well as subsequent court decisions and actions thereon. Defendant denies that AOD's constitute final agency opinions or statements of policy within the meaning of 5 U.S.C., §552(a)(2) and admits that they are not published nor are the indices there to made public. Defendant admits that AOD'S and the indices are identifiable records within the meaning of 5 U.S.C., §552(a)(2).
7. Defendant admits the allegations contained in paragraph 7 of the Complaint.
8. Defendant admits that TM's are prepared by the Legislation and Regulations Division of the Office of Chief Counsel which is part of the General Counsel's Office of the Department of the Treasury. Defendant avers that TM's are also prepared by the Employee Plans and Exempt Organizations Division of the Office of Chief Counsel. Defendant denies that TM's are prepared after preparation of the final test of Treasury Regulations, but avers that TM's are prepared contemporaneously with the preparation of the Treasury Regulations. Defendant admits that TM's constitute a detailed explanation of the regulations. Defendant avers that the Legislation and Regulations Division does not use a standard format in preparing TM's which may, for example, summarize the regulations, evaluate possible problems in interpreting the statute or prior regulations, provide background information, or explain the reasons for the approaches taken in specific provisions of the regulations. Defendant denies that TM's bear a relationship to such regulations similar to that which House and Senate Committee Reports bear to legislation enacted by the Congress. Defendant admits IRS personnel regularly refer to TM's but denies that TM's are considered as authoritative explanations of the meaning of IRS' Treasury Regulations. Defendant further denies that IRS personnel apply TM's in the decision of various matters affecting taxpayers. Defendant denies that TM's constitute final agency opinions or statements of policy within the meaning of 5 U.S.C., §552(a)(2) but admits TM's are not published. Defendant avers that no index is in existence with regard to TM's. Defendant admits TM's are identifiable records within the meaning of 5 U.S.C., §552(a)(3).
9. Defendant admits the allegations contained in paragraph 9 of the Complaint.
10. Defendant denies the allegations contained in paragraph 10 of the Complaint.
AFFIRMATIVE DEFENSES
By way of affirmative defense, defendant states and alleges the following:
I
That all of the documents at issue herein are exempt from disclosure pursuant to 5 U.S.C., §5552(b)(5).
II
That portions of the documents at issue are exempt from disclosure pursuant to 5 U.S.C., §5552(b)(3) in conjunction with 26 U.S.C., §6103(a).
III
That portions of certain of the documents at issue are exempt from disclosure pursuant to the various exemptions set forth in the subparagraphs in 5 U.S.C., §552(b).
WHEREFORE since all of the documents at issue herein are exempt from disclosure, defendant respectfully requests that the Complaint be dismissed.
JOHN J.MCCARTHY
DONALD J.GAVIN
MICHAEL J. KEARMS
Attorneys, Tax Division
U.S. Department of Justice
Washington, D.C. 20530
Telephone: (202)724-6647
[Filed February 23, 1979]
DEFENDANT'S ANSWERS TO INTERROGATORIES
Defendant respectfully answers plaintiff's Interrogatories To Defendant as follows, using the same abbreviations as used by plaintiff:
Interrogatory No. 1
Files: Please provide the following information separately for GCMs, for AODs, and for TMs:
a. The physical location of the files containing each of these three classes of documents, giving city, state, street address and room number or numbers.
b. A description of the physical storage system (e.g., vertical file cabinets, lateral file cabinets, open shelf storage, etc.)
c. The volume of the files containing each of the three classes of documents, expressed in linear feet of file material as stored.
d. The way in which the files are organized (so as to facilitate access to and use of the materials in them).
e. The number of individual IRS employees assigned to maintenance of each file.
f. Whether a log sheet or other control record is maintained to control or record access to each class of documents, and if so the nature of the record, where and by whom the record is kept.
g. The number of IRS employees who consulted the documents in each file during each of the 12 months of 1978, including, without limitation, personal visits to the files and telephone and mail requests for information.
ANSWER:
1. a.
A. GCMs. Internal Revenue Service, Room 4216
1111 Constitution Avenue, N.W.
Washington, D.C. 20224
B. AODs.
FIELD OFFICES. (1) All District Counsel Offices; (2) Most Appeals Division Offices; (3) Most larger Examination Division Offices; (4) Most Examination Division Offices in cities where the District Director's offices are located.
NATIONAL OFFICE. (5) Internal Revenue Service, 1111 Constitution Avenue, N.W., Room Number 4501 Washington, D.C. 20224; (6) Internal Revenue Service, 1111 Constitution Avenue, N.W., Room Number 4203, Washington, D.C. 20224.
C. TMs. (1) Internal Revenue Service, Room 4300, 1111 Constitution Avenue, N.W., Washington, D.C. 20224 (a skeleton file which may or may not contain a TM); (2) Internal Revenue Service, Room G-010, 1111 Constitution Avenue, Washington, D.C. 20224 (the complete Treasury Decision file which may or may not contain a TM): (3) Federal Records Center, Suitland, Maryland 20023 (the complete Treasury Decision file which nay or nay not contain a TM).
1. b.
A. GCMs. Open shelf storage.
B. AODs. (1) Chief Counsel Offices both in National Office and the filed maintain AODs on microfilm; (2) Field Offices of Appeals and Examination Divisions maintain AODs on hard copy in vertical file cabinets.
C. TMs. (1) Vertical file cabinets at location described in Answer C(1) to Interrogatory 1(a); (2) Open shelf storage at location described in Answer C(2) to Interrogatory 1(a); (3) Boxes on open shelves at location described in Answer C(3) to Interrogatory 1(a).
1. c.
A. GCMs. 441 linear feet.
B. AODs. (1) Chief Counsel Offices — Approximately 68 reels of microfilm of which approximately 44 reels contain substantial amounts of other material; (2) Field Offices which maintain hard copy — Approximately 14 drawers for a total of at least 28 linear feet, per office.
C. TMs. (1) 52 linear feet of materiel at location described in Answer C(1) to Interrogatory 1(a); (2) Unable to determine number of linear feet at location described in Answers C(2) and C(3) to Interrogatory 1(a), as the TMs are intermingled with files from other divisions.
1. d.
A. GCMs. GCMs are numbered chronologically. Two copies of each are kept on the shelves.
B. AODs. The AODs are placed on microfilm in alphabetical or random order. The AODs which are maintained in vertical file cabinets are in alphabetical order in most offices, and in chronological order in some offices.
C. TMs. The files at the locations, described in C(1) and C(2) to Interrogatory 1(a), which may or may not contain TMS, are, organized by Treasury Decision number. The files at the location described in Answer C(3) to Interrogatory 1(a) are organized by accession number, box number, name, L&R file number and location number.
1. e.
A. GCMs. One file clerk.
B. AODs. No information available. The maintenance of these files are part of other duties in each office and require very little time.
C. TMs. (1) One IRS employee assigned to maintenance of files at location described in Answer C(1) to Interrogatory 1(a); (2) Three IRS employees assigned to the maintenance of the files at the location described in Answer C(2) to Interrogatory 1(a); (3) no IRS employees are assigned to the maintenance of the files at the location described in Answer C(3) to Interrogatory 1(a).
1. f.
A. GCMs. (1) A daily log sheet is maintained at the entrance to the Digest Section to record name and Division of all entrants into the research room (this is not a record of access to GCMs as entrants may refer to any of the many kinds of documents maintained in the Digest Room); (2) Charge slips are filled out by users to record files taken; (3) A xerox register, located on the xerox machine is maintained to record files xeroxed.
B. AODs. No log sheet or other control record is maintained regarding control or access to AODs.
C. TMs. (1) The record at the location described in Answer C(1) to Interrogatory 1(a) is a card, identifying the person to whom the file is charged, that is substituted for the file in the file drawer. This system is utilised only when the file is removed from Room 4300; (2) The record at the location described is Answer C(2) to Interrogatory 1(a) is a Form [MISSING TEXT] 6352 which records the case name, date file is requested, date file is to be returned, name of requestor, case number, division of requesting agent, and extension number of requesting agent. This form is destroyed when the file is returned; (3) the record at the location described in Answer C(3) to Interrogatory 1(a) is Optional Form 11 which contains location information and is used to represent the file until it is return at which time Optional Form 11 is destroyed.
1. g.
A. GCMs. It is not possible to provide the requested Information as the Digest Section does not access specifically to GCMs.
B. AODs. It is not possible to provide the requested information because records of access are not maintained.
C. TMs. It is not possible to provide the requested information because at the location described in Answer C(1) to Interrogatory 1(a) no records are kept if the files are not removed from Room 4300, and at the location described in Answers C(2) and C(3) to Interrogatory 1(a) records are not retained.
Interrogatory No. 2
Indexes. Please provide the following information separately for GCMs, for AODs, and for TMs:
a. The physical location of the index for each class, as in 1a.
b. A description of the index system for each class of documents, including physical characteristics (e.g., 3 x 5 card file, computer tape and printout, loose leaf book etc.) and principle of organization (e.g., alphabetical by taxpayer name, numerical by Internal Revenue Code section, etc.).
c. The number of items in the index for each class.
d. The number of individual IRS employees assigned to preparing, maintaining and publishing or otherwise facilitating access to the index for each class.
e. The number of individual IRS employees who consulted the index for each class during each of the 12 months of 1978, including without limitation, personal visits to the location where the index is maintained, telephone and mail requests and computer terminal inquiries.
f. Why does the index of AODs not include AODs written by the General Litigation Division of the Office of Chief Counsel?
ANSWER:
2. a.
A. GCMs. Internal Revenue Service, Room 4214 1111 Constitution Avenue, N.W., Washington, D.C. 20224
B. AODs. (1) Indices of AODs maintained on microfilm are located with the microfilm reels; (2) There are no indices for AODs maintained in vertical file drawers.
C. TMs. No index is in existence with regard to TMs.
2. b.
A. GCMs. (1) Name cards — 3 x 5 cards are kept in rotary file. Filed alphabetically; (2) Citator cards — 3 x 5 cards kept in rotary file. Filed chronologically; (3) Digest cards — 5 x 8 cards kept in rotary file. Filed under Code or regulation section. Give digests of the GCMs; (4) Digesters' worksheets — 8 x 10 1/2 forms kept in file drawers. Contain GCM digests and designation to Code and regulation sections. Filed chronologically.
B. AODs. The index to AODs maintained on microfilm is a computer printout in alphabetical order by case name.
C. TMs. Not applicable. See Answer C to Interrogatory 2(a) above.
2. c.
A. GCMs. (1) Name cards — about 37, 850; (2) Citator cards — about 37,150; (3) Digest cards — about 110,000; (4) Digesters' worksheets — about 39,000.
B. AODs. Approximately 3,022.
C. TMs. Not applicable. See Answer C to Interrogatory 2(a) above.
2 d.
A. GCMs. Six employees.
B. AOCs. Two employees.
C. TMs. Not applicable. See Answer C to Interrogatory 2(a) above.
2. e.
A. GCMs. It is not possible to provide the requested information as the Digest Section does not record access specifically to the index for GCMs.
B. AODs. It is not possible to provide the requested information because records of are not maintained.
C. TMs. Not applicable. See Answer C to Interrogatory 2(a) above.
2. f
These AODs are not in the automated data system of the Chief Counsel's Office and, therefore, no computer index can be prepared.
Interrogatory No. 3
Personnel. Please state separately for GCMs, for AODs, and for TMs
a. The names and position titles of the individuals who have overall supervisory responsibility for maintenance of the files containing each of these classes of documents, and the number of years each such individual has been in his or her present position.
b. The names and position titles of the individuals who have overall supervisory responsibility tor the preparation of each of these classes of documents, and the number of years each such individual has been in his or her present position.
c. The names and position titles of the individuals who consulted the flies containing each of these classes of documents on December 8, 1978, the date of the filing of this suit.
ANSWER:
3. a.
A. GCMs. Miss Helen B. Peeta, Chief, Digest Section, Administrative Services Division, 4 years.
B. AODs. Mr. Allen A. Sibat, Chief, Planning Analysts and Operations Branch, Administrative Services, Division, 3 years.
C. TMs. (1) Mr. Robert A. Bley, Director, Legislation and Regulations Division is responsible for the maintenance of the files described in Answer C(1) to Interrogatory 1(a). He has held this position for 2 years and 2 months; Mr. William Mitchell, File Supervisor, is responsible for the maintenance of the files described in Answer C(2) to Interrogatory 1(a). He has held this position for 36 years; (3) Mr. Roland Wilson, Branch Chief, is responsible for the Maintenance of the files described in Answer CO) to Interrogatory 1(a). He has held this position for 1 year.
3. b.
A. GCMs. (1) Jerome D. Sebastian, Director, Interpretative Division, 3 years; (2) Harold T. Flanagan, Director, General Litigation Division, 3 years; (3) George H. Jelly, Director, Employee Plans and Exempt Organizations Division, 7 Months.
B. AOCs. (1) Haorld T. Flanagan, Director, General Litigation Division, 3 years; (2) John H. Menzel, Acting Director, Tax Litigation Division, 5 months.
C. TMs. Mr. Robert A. Bley, Director, Legislation and Regulations Division, 2 years 1-1/2 months.
3. c.
A. GCMs. No records are maintained which would enable us to provide the requested information.
B. AODs. No records are maintained which would enable us to provide the requested information.
C. TMs. No records are maintained which would enable us to provide the requested information.
Interrogatory No. 4
Why did IRS cease publication of GCM in the Internal Revenue Bullentin?
ANSWER:
The IRS ceased publication of the GCM in the Internal Revenue Bulletin for the reasons explained in Rev. Rul. 2, 1953-1 C. B. 484:
Effective with the first issue of the Bulletin for 1953, each Bureau announcement published in the Bulletin as a ruling or statement or procedure will be designated as a Revenue Ruling (Rev. Rul.). This designation will be used in lieu of former designations such as E.T., Em. T., G.C.M., IR-Mim., I.T., S.T., etc.
Interrogatory No. 5
During the time that GCMs were published, what was the basis for deciding which GCM would be published and which would not?
ANSWER:
The basis for deciding which GCMs would be published and which would not, during the time that GCMs were published, is explained in the introduction to V-1 C.B. I (1926):
In addition to publishing all Internal Revenue Treasury Decisions, it is the policy of the Bureau of Internal Revenue to publish all rulings and decisions, including opinions of the General Counsel for the Bureau of Internal Revenue, which, because they announce a ruling or decision upon a novel question or upon a question in regard to which there exists no previously published ruling or decision, or for other reasons, are of such importance as to be of general interest. It is also the policy of the Bureau to publish all rulings or decisions which revoke, modify, amend, or effort in any manner whatever any published ruling for decision. In many instances opinions of the General Counsel for Bureau of Internal Revenue are not of general interest because they announce no new ruling or new construction of the revenue [MISSING TEXT] but simply apply rulings already made public to certain situations of fact [MISSING TEXT] are without special significance. It is not policy of the Bureau to publish such opinions. Therefore, the numbers assigned the published opinions of the General Counsel for the Bureau of Internal Revenue are not consecutive.
Interrogatory No.6
Are GCMs, AODs or TMs ever cited in subsequent GCMs, AODs or TMs? Answer separately each for each. If not, is there an express instruction not to? A custom, not to? Describe and state any such express instruction or custom including IRM § 4245.3. If so, state at least in general terns the frequency of such citation.
ANSWER:
A. GCMs. GCMs are frequently cited in subsequent GMCs to insure consistency, to avoid duplication of research, to provide a reference source, and to update earlier memorandums when a position on an issue is substained, modified, or changed
B. AODs. AODs are sometimes cited in subsequent AODs.
C. TMs. GCMs and TMs are sometimes cited in subsequent TMs. AODs are rarely cited in subsequent TMs.
Interrogatory No. 7
Are the interpretations (or the substance of interpretations) of statute, regulation or case law contained in GCMs, AODs, TMs ever (a) knowingly applied. (b) knowingly distinguished or (c) knowingly rejected of application, in subsequent GCMs, AODs, TMs, Revenue Rulings, letter rulings or in other IRS determinations affecting members of the public [MISSING TEXT] in which case please specify the type(s)of determination(s)? Answer separately each for each, and state in at least general terms the frequency of such application, distinction or rejection.
ANSWER:
A. GCMs. It is the policy of the Service, as stated in the introduction into V-1 C.B. I (1926). that unpublished rulings "will not be relied on, used, or cited as precedents by Service personnel in the disposition of other cases." IRM 4265.3(3) expressly provides that GCMs "shall not be used as precedents in the disposition of other cases" under this policy because they are unpublised memorandums.
B. AODs. Interpretations of statute, regulations or case law contained in AODs are applied in subsequent AODs. We have no information as to the frequency of application, distinction, or rejection.
C. TMs. TMs do not contain interpretations of the statute or regulations except insofar as they summarize the regulations to which they relate or discuss the background of the regulations, the reasons for the decisions taken in the regulations, and similar matters. They are not intended to interpret the statute or regulations by providing rules where there are none or clarifying ambiguous rules. However, GCM's and AODs are sometimes applied in subsequent TMs to show the consistency of a position in a notice of proposed rulemaking or Treasury decision with a position previously adopted by the Internal Revenue Service. TMs are sometimes applied in subsequent TMs where the two related Treasury decisions involved similar issues that were resolved in the same manner. In these cases, a TM related to the later Treasury decision would apply a TM related to the earlier Treasury decision for an explanation of the issues and its resolution.
Interrogatory No. 8
Are certain GCMs, AODs or TMs (answer separately) singled out as having greater weight or authority, or as recommended for reference, than others? If so, how are these GCMs, AODs or TMs so singled out (e.g., by a designation such as "Reference", by a separate indexing system, by separate filing, by wide circulation, by specific instruction to apply and/or follow them, etc.)?
ANSWER:
A. GCMs. NO GCMs are singled out as having greater weight or authority than others.
B. AODs. No AODs are singled out as having greater weight or authority than others.
C. TMs. No TMs are singled out as having greater weight or authority than others.
Interrogatory No. 9
Are copies of GCMs, AODs or TMs transmitted or circulated within IRS' office of Chief Counsel? If so, is such transmittal or circulation routine? Describe the procedure by which they are transmitted or circulated. If only some but not all are circulated, explain the process of selection of those to be circulated.
ANSWER:
A. GCMs. There is no general distribution of these documents, either in the National Office or in any field offices. However, certain key officials in the National Office do receive copies of all GCMs for general information purposes.
B. AODs. Printed copies of AODs are circulated throughout the Office of Chief Counsel, both in the National Office and the field as a routine matter.
C. TMs. There is no general distribution of these documents, either in the National Office or in any field offices. However, each TM is transmitted together with the notice of proposed rulemaking or proposed Treasury decision to which it relates to only those persons within the Office of Chief Counsel responsible for review or approval of such notice or Treasury decision.
Interrogatory No. 9A
Do individual attorneys in IRS' office of Chief Counsel keep their own copies of GCMs, AODs or TMs?
ANSWER:
A. GCMs. individual attorneys in the Office of Chief Counsel may keep copies of GCMs which they personally worked on or reviewed. Some attorneys nay also keep copies of GCMs that they have used for research in a specific case.
B. AODs. Individual attorneys in the Office of Chief Counsel may keep copies of AODs as part of their official files.
C. TMs. Individual attorneys in the Legislation and Regulations Division generally keep copies of TMs that they prepared as part of their files.
Interrogatory No. 10
Are individual attorneys in IRS' office of Chief Counsel ever known to take copies of GCMS, AODs or TMs with them when they leave IRS for employment in the private sector? Do they routinely do so? Does the IRS impose any restriction on such removal?
ANSWER:
No information is available with regard to the first two questions propounded in Interrogatory 10.
A. GCMs. Individual attorneys in IRS' Office of Chief Counsel are expressly forbidden from taking copies of GCMs with them when they leave the IRS for employment in the private sector by Chief Counsel Order 1352.3A, paragraph 5a, which requires that all copies of government papers, including those used in the course of an attorney's work, be returned when the attorney leaves the government service.
B. AODs. Individual attorneys in IRS' Office of Chief Counsel are expressly forbidden from taking copies of AODs with them when they leave the IRS for employment in the private sector for the reasons described in Answer A to Interrogatory 10, above.
C. TMs. Individual attorneys in IRS' Office of Chief Counsel arc expressly forbidden from taking copies of TMs with them when they leave for employment in the private sector for the reasons described in Answer A to Interrogatory 10, above.
Interrogatory No. 11
Do IRS personnel who confer or negotiate on tax liability matters with taxpayers or taxpayer representatives refer (a) routinely or (b) ever, to GCMs, AODs or TMs for guidance as to positions to take in such negotiations? Do they ever state to taxpayers or taxpayer representatives that such-and-such a position is required or necessitated by a GCM, AOD or TM? Do they ever furnish a copy of such GCM, AOD or TM to a taxpayer or taxpayer representative? Is there an express instruction or custom not to do any of the above? If so, describe and state any such express instruction or custom.
ANSWER:
A. GCMs. IRS personnel who confer or negotiate on tax liability matters with taxpayers or taxpayer representatives may refer to GCMs for guidance as to the positions to take in such negotiations.
IRS personnel do not state that a particular position is retired or necessitated by a GCM. IRS personnel do not provide copies of GCMs to taxpayers or taxpayer representatives. IRS personnel are instructed not to use GCMs as precedent in the disposition of other cases by IRM § 4245.3.
B. AODs. IRS personnel who confer or negotiate on tax liability matters with taxpayers or taxpayer representative may refer to AODs for guidance as to the positions to take in such negotiations.
IRS personnel do not state that a particular position is required or necessitated by an AOD. IRS personnel do not provide copies of AODs to taxpayers or taxpayer representatives. IRM § 4245.2 instructs IRS personnel not to use AODs as precedent in the disposition of other cases where "the Commissioner's position is not sustained and he/she has neither indicated his/her acquiescence nor issued a pronouncement or Regulation." IRS personnel are further instructed by IRM § 4245.2 to follow AODs where "the Commissioner's position is sustained or in which he/she has acquiesced or has indicated his/her acceptance in the Internal Revenue Bulletin or Service Regulations."
C. TMs. IRS personnel who confer or negotiate or tax liability matters with taxpayers or taxpayer representatives way refer to TMs for a more detailed explanation of the applicable regulations.
IRS personnel do not state that a particular position is required or necessitated by a TM. IRS personnel do not provide copies of TMs to taxpayers or taxpayer representatives. There is no express instruction or custom with regard to the above.
Interrogatory No. 12
Do speeches made by IRS officials to taxpayers, attorneys, accountants or other audiences in the private sector ever draw upon, or does the research for the preparation of such speeches ever include reference to GCMs, AODs or TMS?
RESPONSE:
Defendant objects to interrogatory 12 on the grounds that such question is overly broad and that to require defendant to answer such question would impose an undue burden.
Interrogatory No. 13
Does the IRS routinely transmit copies of GCMs, AODs or TMs to attorneys in the Department of Justice for their use in litigation? It such transmittal is not routine, explain the circumstances in which such transmittal would be made. Do Department of Justice attorneys ever request copies of GCMs, AODs or TMs? Are the requests routinely granted? Ever granted? In what circumstances?
ANSWER:
A. GCMs. The IRS does not routinely transmit copies of GCMs to attorneys in the Department of Justice. Such a transmittal is done rarely, if at all, and only when the requirements of I.R.C. § 6103(h)(2) are met. The Department of Justice attorneys occasionally request copies of GCMs. Such requests are granted only when the requirements of I.R.C. § 6103(h)(2) are met.
B. AODs. The IRS does not transmit copies of AODs to attorneys in the Department of Justice. Department of Justice attorneys have no need to request AODs because the Appeal letters sent to the Department of Justice attorneys by the Internal Revenue Service attorneys contain sufficient explanation of the issues.
C. TMs. To the best of my knowledge copies of TMs are not transmitted to attorneys in the Department of Justice nor are such TMs ever requested by Department of Justice attorneys.
JOHN J. McCARTHY
DONALD J. GAVIN
MICHAEL J. KEARNS
Attorneys, Tax Division
U.S. Department of Justice
Washington, D.C. 20530
[MISSING TEXT]