Response to FOIA Request

DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
WASHINGTON, DC 20224

September 30, 2014

Dennis Brager
Brager Tax Law Group
10880 Wilshire Blvd, Suite 880
Los Angeles, CA 90024

Dear Mr. Brager:

I am responding to your Freedom of Information Act (FOIA) request dated April 3, 2014 that we received on April 8, 2014.

You asked for the following:

  1. All training materials, that have not previously been published in the Internal Revenue Manual, or on the IRS website including but not limited to, memoranda, staff manuals, Powerpoint presentations, videos and other materials that have been used since January 1, 2011 for the purposes of training personnel on the implementation of the Offshore Voluntary Disclosure Program ("OVDP"), or Offshore Voluntary Disclosure Initiative ("OVDI") including opt-outs from said programs (hereinafter collectively the "Programs").
  2. All documents, that have not previously been published in the Internal Revenue Manual, or on the IRS website including but not limited to memoranda, staff manuals, Powerpoint presentations, videos and other materials which provide guidance, instruction, or other information on the determination of penalties for failure to file Report of Foreign Bank and Financial Accounts ("FBAR") Form TD F 90-22.1, and FinCEN 114.
  3. All documents, that have not previously been published in the Internal Revenue Manual, or on the IRS website including but not limited to memoranda, staff manuals, Powerpoint presentations, videos and other materials which have been used to implement the Programs, or otherwise instruct IRS employees on the workings of the Programs.

Of the 7,092 pages located in response to your request, I am enclosing 6,601pages. I am withholding 326 pages in part and 491 pages in full under FOIA exemptions (b)(5), (b)(6), (b)(7)(E), and (b)(3) with 6103(a) as the supporting law.

Exemption (b)(5) of FOIA exempts from disclosure inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency. There are three primary privileges covered by this exemption:

  • The deliberative process privilege protects documents that reflect the pre- decisional opinions and deliberations that play a direct part in the process of making recommendations on legal or policy matters.
  • The attorney work product privilege protects documents prepared by an attorney or other Service employee during litigation or in reasonable contemplation of litigation, and
  • The attorney-client privilege protects confidential communications between an attorney and a client relating to a legal matter for which the client has sought professional advice.

Exemption (b)(6) of FOIA exempts from disclosure files that, if released, would clearly be an unwarranted invasion of personal privacy. These include medical, personnel, and similar files. We base the determination to withhold on a balancing of interests between the protection of an individual's right to privacy and the public's right to access government information. The Supreme Court ruled that Congress intended the "similar files" provision to be construed broadly, so that all information which applies to a particular individual qualifies for consideration under exemption (b)(6).

Exemption (b)(7)(E) of FOIA exempts from disclosure records or information compiled for law enforcement purposes to the extent their production would reveal:

  • Techniques and procedures for law enforcement investigations or prosecutions
  • Guidelines for law enforcement investigations or prosecutions, if release could reasonably be expected to risk circumvention of the law.

Exemption (b)(3) of FOIA requires us to withhold information that is specifically exempted from disclosure by another law. The law supporting this exemption is Internal Revenue Code section 6103(a). The withheld portions are the tax information of other taxpayers.

The redacted portions of each page are marked by the applicable FOIA exemptions. This constitutes a partial denial of your request. I have enclosed Notice 393 explaining your appeal rights.

No fees were incurred in processing your request.

The responsive documents are being released to you on the enclosed CD which is password protected. The password is being provided to you in a separate letter.

If you have any questions please call Senior Disclosure Specialist Vivian A. King, ID # 1000207866 at 651-312-7813 or write to: Internal Revenue Service, HQ Disclosure, Stop 211, Post Office Box 621506, Atlanta, GA 30362-3006. Please refer to case number F14099-0153.

Sincerely,
Keith C. Ott
Acting Disclosure Manager
Headquarters (HQ) Disclosure Office


Information on an IRS Determination to Withhold Records Exempt From The Freedom of Information Act - 5 U.S.C. 552Appeal Rights

You may file an appeal with the Internal Revenue Service (IRS)within 35 days after we (1) deny you access to a record in whole or in part; (2) have made an adverse determination as to your category as a requester; (3) deny your request for a fee waiver or reduction; or (4) have advised you that no records responsive to your request exist. You may file an appeal within 10 days when a request for expedited processing has been denied.

Your appeal must be in writing, must be signed by you, and must contain:

Your name and address,
Description of the requested records,
Date of the request (and a copy, if possible),
Identity of the office and contact on the response letter, and
Date of the letter denying the request (and a copy, if possible)

Mail your appeal to:

IRS Appeals
Attention: FOIA Appeals M/Stop 55202
5045 E.Butler Ave.
Fresno, California 93727-5136

Judicial Review

If we deny your appeal, or do not address an issue raised in your appeal within 20 days (excluding Saturdays, Sundays, or legal public holidays) after the date we receive your appeal, you may file a complaint in United States District Court in the district in which (1) you reside; (2) your principal place of business is located; (3) the records are located; or (4) the District of Columbia. A complaint may be filed within 10 days (excluding Saturdays, Sundays, or legal public holidays) after the date we receive your appeal if your appeal is from an adverse determination of a request for expedited processing. If you choose tofile suit before receipt of a final determination by the Appeals office, the administrative appeals process may cease.

The rule for effecting service ofjudicial process upon the Internal Revenue Service is set forth in Federal Rule ofCivil Procedure 4(i). In addition to service upon the United States, as set forth in Rule 4(i)(1), service must be made upon the Internal Revenue Service by registered or certified mail as set forth in Rule 4(i)(2)(A).

The address of the Internal Revenue Service is: Internal Revenue Service, Attention CC:PA, 1111 Constitution Avenue, N.W., Washington, D.C. 20224.

Exemptions

The Freedom of Information Act, 5 U.S.C. 552. does not apply to matters that are:

(b)(1) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and are in fact properly classified under such executive order,

(b)(2) related solely to the internal personnel rules and practices of an agency,

(b)(3) specifically exempted from disclosure by statute (other than section 552b ofthis title), provided that the statute:

(A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or

(B) establishes particular criteria for withholding or refers to particular types of matters to be withheld.

Note: Internal Revenue Code sections 6103 and 6105 are statutes which qualify for exemption 3 treatment. Section 6103 protects the confidentiality of tax returns and information pertaining to a taxpayer collected by the IRS. Section 6105 protects information obtained from a foreign country under a tax treaty.

(b)(4) trade secrets and commercial or financial information obtained from a person and privileged or confidential,

(b)(5) inter-agency or intra-agency memorandums or letters which would not be available by law to aparty other than an agency in litigation with the agency,

(b)(6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy,

(b)(7) records or information compiled for lawe nforcement purposes, but only to the extent that the production of such law enforcement records or information:

(A) could reasonably be expected to interfere with enforcement proceedings,

(B) would deprive a person of a right to a fair trial or an impartial adjudication,

(C) could reasonably be expected to constitute an unwarranted invasion of personal privacy,

(D) could reasonably be expected to disclose the identity of a confidential source, including a State, local or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by a criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source,

(E)would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or

(F) could reasonably be expected to endanger the life or physical safety of any individual.

(b)(8) contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions, or

(b)(9) * geological and geophysical information and data, including maps, concerning wells.

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