Freedom of Information Act (FOIA): Accessing IRS Records

Why This Matters for the Exam

FOIA is tested because it's a practical tool for practitioners preparing cases. The exam tests your knowledge of what records can be obtained, what is redacted, and when to use FOIA.

Expect at least 1-2 questions on FOIA requests and exemptions.

The Legal Framework

Two Laws Govern Access to IRS Records:

How They Work Together:

• IRC §6103 protects taxpayer data from disclosure to third parties.
• FOIA allows anyone to request government records (subject to exemptions).
• The Privacy Act allows individuals to access their own records held by the government.

For tax purposes, a taxpayer (or authorized representative) uses FOIA to request their administrative file—the IRS's internal records about their case.

What Is the "Administrative File"?

The administrative file includes internal IRS documents related to a taxpayer's case. This can be invaluable for:

• Audits: Understanding the examiner's reasoning and evidence.
• Appeals: Knowing what the IRS is relying on.
• Collections: Seeing how decisions were made.
• Litigation: Preparing for Tax Court.

Documents You Can Request:

What Is Redacted or Exempt?

FOIA has nine exemptions that allow agencies to withhold certain information:

Common Redactions in IRS FOIA Responses:

• DIF Scores: The Discriminant Function score that triggered the audit selection.
• Return Selection Criteria: Why your return was flagged.
• Attorney Advice: Legal opinions from IRS counsel.
• Draft Documents: Preliminary analyses that weren't finalized.

Key Point: You will get the examiner's workpapers and notes, but not the algorithm that selected your return.

How to Submit a FOIA Request

Step 1: Identify What You Want Be specific. "All records related to my 2022 audit" is better than "everything about me."

Step 2: Choose Submission Method

• IRS FOIA Portal: Online submission at IRS.gov.
• Written Request: Mail to the IRS Disclosure Office.

Step 3: Include Required Information

• Taxpayer name, SSN/EIN, and address.
• Specific records requested.
• Time period covered.
• Signature and date.
• Statement: "This request is made under the Freedom of Information Act, 5 USC §552."

Step 4: Pay Fees (If Applicable) FOIA requests may be subject to search and copy fees, but the first 100 pages are often free, and fee waivers are available for hardship.

Timeline for IRS Response

If the IRS Denies Your Request: You can appeal the denial to the IRS Office of Appeals (different from the tax Appeals Office) and ultimately to federal court.

When to Use FOIA: Practitioner Strategy

Use FOIA When:

• Preparing for an unagreed case going to Appeals.
• You want to see what evidence the IRS has.
• You need the examiner's notes to challenge findings.
• Preparing for Tax Court litigation.
• You suspect the IRS made procedural errors.

Don't Rely on FOIA For:

• Routine copies of filed returns (use Form 4506-T instead).
• Transcripts (use Form 4506-T).
• Time-sensitive matters (FOIA takes weeks/months).

FOIA vs. Other Record Requests

Real-World Scenario

Scenario: An EA is representing a client in an unagreed audit. The client disagrees with the examiner's findings, and the case is going to Appeals. The EA wants to see the examiner's workpapers before the Appeals conference.

• What should the EA do? Submit a FOIA request for the administrative file related to the audit.
• What will they get? Examiner's notes, calculations, contact log, and correspondence.
• What will be redacted? DIF score, selection criteria, any attorney advice.

On the Exam

Expect 1-2 questions on FOIA, typically:

1. Purpose Questions: "What is a common reason a practitioner would file a FOIA request?"
2. Redaction Questions: "Which information is typically redacted from a FOIA response?"

The key is to remember: FOIA = Administrative file, workpapers, case notes. DIF scores and selection criteria are redacted.