|INSTRUCTIONS: 4.5 Use the FOIA, Privacy Act, and Discovery to Gain an Advantage|
In the legal field, discovery is the process of gathering evidence for use in either an administrative or judicial proceeding. The Freedom of Information Act (FOIA) found in 5 USC 552 and the Privacy Act of 1974, found in 5 U.S.C. 552a can be powerful tools in your arsenal that are very useful for discovery of information relating to the IRS and the federal government. The FOIA is used for any government information that is not protected by the privacy act, such as any IRS system of records. The Privacy Act of 1974 protects personal information about natural persons but also allows those persons to get copies of any and all such information provided they authenticate themselves when they request it with a notarized signature. Note that these two acts have no jurisdiction on your state governments. Each state has its own laws and is foreign to the U.S. government, so you will need to look at the laws for your individual state to find out if it has laws equivalent to these two acts at the state level. A good place to start in searching your state laws is on our website at the following address:
There are specific procedures and processes you must follow when you use the Freedom of Information Act and the Privacy Act of 1974 to do discovery. The best place to find out about these procedures and processes is to read the law and underlying regulations yourself. The links below contain the full text of these two acts:
Freedom of Information Act: https://www.law.cornell.edu/uscode/text/5/552
Privacy Act of 1974: https://www.law.cornell.edu/uscode/text/5/552a
You should send your FOIA/Privacy Act request to the address you locate on the following website under "Service Centers":
Address your FOIA inquiry to the address identified above and on the second line of the address, indicate “Disclosure Officer”.
The Freedom of Information Act is useful for public records that don’t contain information about specific natural persons. It applies to everyone in the federal government EXCEPT Congress.
One of the most useful documents you can get your hands on is Part II of the Federal Register, Vol. 63, No. 242, pages 69716 through 69929 for the year 1998. This document lists all systems of records published by the Department of the Treasury, which includes the Internal Revenue Service. Our IMF Request Letter found later in section 9.15.5 of this book, item #8, includes a request for this document, and that letter has been successful in getting that document for previous FOIA requests. Once you have this document, you can use it to determine other candidate records you can request using the FOIA. This entire document has been entered into our Master File Decoder program so that it is electronically searchable. The program also automates the production of FOIA requests appropriate for your specific situation in order to simplify the discovery process. You can download this excellent and FREE program from our website at:
Most FOIA responses are provided free of charge by the IRS. The Response to the IMF Request Letter appearing in section 9.15.5 coming back from the IRS was 89 pages and they didn’t charge us for it.
The response that we got back from our FOIA request to the IRS for our IMF included IRS Notice 393 (Rev. 4-94), Catalog Number 45803X. That notice is a warning about withheld records. We repeat it below for your benefit.
INFORMATION ON AN IRS DETERMINATION TO WITTHOLD RECORDS EXEMPT FROM THE FREEDOM OF INFORMATION ACT-5 U.S.C. 552
You may file an appeal with the Internal Revenue Service within 35 days after we (1) determine to withhold records, (2) determine that no records exist, or (3) deny a fee waiver or a favorable fee category. If some records are released at a later date, you may file within 35 days after the date the last records were released.
The appeal must be in writing, must be signed by you, and must contain the following information:
Your name and address
Mail your appeal to:
Internal Revenue Service
If we deny your appeal, or if we do not send you a reply within 20 days (not counting Saturdays, Sundays, or legal public holidays) after the date we received the appeal, you may file a complaint with the U.S. District Court in the district where (1) you reside, (2) your principal place of business is located, or (3) the records are located. You may also file in the District Court for the District of Columbia.
The court will treat your complaint according to the Federal Rules of Civil Procedure (F.R.C.P.). Service of process is governed by Rule 4(d)(4) and (5), which requires that a copy of the summons and complaint be (1) personally served on the United States Attorney for the district in which the lawsuit is brought; (2) sent by registered or certified mail to the Attorney General of the United States at Washington, D.C.; and (3) sent by registered or certified mail to the Commissioner of Internal Revenue, Attn: CC:El:D, 1111 Constitution Avenue, N.S., Washington, D.C. 20224.
In such a court case, the burden is on the Internal Revenue Service to justify withholding the requested records, determining that no records exist, or denying a fee waiver or a favorable fee category. The court may assess against the United States reasonable attorney fees and other litigation costs incurred by the person who takes the case to court and who substantially prevails. You will have substantially prevailed if the court determines, among other factors, that you had to file the lawsuit to obtain the records you requested and that the Internal Revenue Service had no reasonable grounds to withhold the records. See Internal Revenue Service Regulations 26 CFR 601.702 for further details.
The Freedom of Information Act, 5 U.S.C. 552, does not apply to matters that are—
The kinds of issues you want to focus on in your discovery process are issues that are controversial and not well-known. Below are a few such things that you definitely want answers on:
Most congressmen get a lot of questions and correspondence from their constituents and after they have been around a while, they know exactly which questions to avoid to keep the IRS out of trouble. Therefore, they are likely to avoid questions about the above, and especially if they demonstrate unusual legal skill and research. Therefore, you should try to keep the requests as simplistic as possible. The best type of lawmaker to make such requests to are the most junior members of Congress who just got into office on their first term and are green behind the ears. Hit them between the eyes with questions about the above and sound innocent. Don’t reveal why you need to know or that it even relates to income taxes. Create a diversion to make it sound like, for instance, you are a patriotic high school student who is excited about being a Congressman some day and whose teacher asked them to do a research project. Snow the crap out of them so they won’t know what hit them, even though you will use their answer to nail the IRS up to the wall and torture them at an examination hearing and in court with it!
In many cases, the Congressman you write with your questions won’t have the answer no matter how simple your question. For such cases, he or she will likely turn the question over to the Congressional Research Service or the IRS. Requests that are simple enough to answer without much research will usually be answered by sending to the constituent a copy of Congressional Research Service Report 97-59A along with a short letter of explanation. The rebutted version of that report appears in its entirety in section 10.1 of this book. You should be ready for the answers they will give out of that report, and might want to include with your questions either the entire rebutted report or the excerpts that are pertinent to the question you are asking. Force them to respond to the rebutted version of the report so they don’t have any room to wiggle out of telling the truth.
For those requests that are forwarded on the IRS, the Congressman will then get the response back from the IRS and forward it with a cover letter. The IRS responses are rather blunt and threatening in most cases. One of our readers said their request to their Congressman for information resulted in a threatening letter from the IRS (Individuals Representing Satan) that said he should spend less time asking questions and more time paying his taxes! Extortionists!
Another means of discovery are interrogatories, requests for admissions, subpoenas, and depositions you might hold during the litigation phase of your case. How to accomplish these means of discovery is beyond the scope of this book. However, Nolo Press sells some very good legal self-help books that are written specifically for those without much legal training that teach you how to prepare these types of discovery. Their website is at:
The Lawyer Jokes section of their website is hilarious!
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