6-1.000 - Policy

6-1.100 - Department of Justice Policy and Responsibilities—Tax Division

The Assistant Attorney General for the Tax Division, subject to the general supervision of the Attorney General and under the direction of the Associate Attorney General, is responsible for conducting, handling, or supervising the following matters:

• Prosecution and defense in all courts, other than the Tax Court, of civil suits, and the handling of other matters, arising under the internal revenue laws, and litigation resulting from the taxing provisions of other Federal statutes (except civil forfeiture and civil penalty matters arising under laws relating to liquor, narcotics, gambling, and firearms assigned to the Criminal Division by 28 U.S.C. § 0.55(d)), and matters arising under the Affordable Care Act that raise novel and important interpretive questions beyond tax administration).
• Criminal proceedings arising under the internal revenue laws, except:  proceedings pertaining to misconduct of Internal Revenue Service (IRS) personnel; taxes on liquor, narcotics, firearms, coin-operated gambling and amusement machines; corrupt or forcible interference with an officer or employee acting under the internal revenue laws (26 U.S.C. § 7212(a); wagering, forcible rescue of seized property (26 U.S.C. § 7212(b)); unauthorized disclosure of information (26 U.S.C. § 7213); and counterfeiting, mutilation, removal, or reuse of stamps (26 U.S.C. § 7208).
• Enforcement of tax liens, and mandamus, injunctions, and other special actions or general matters arising in connection with internal revenue matters.
• Defense of actions arising under 28 U.S.C. § 2410 whenever the United States is named as a party to an action as the result of the existence of a federal tax lien, including the defense of other actions arising under Section 2410, if any, involving the same property whenever a tax-lien action is pending under that section.
• Most matters involving the immunity of the federal government from state or local taxation, as well as state or local taxation involving contractors performing contracts for or on behalf of the United States.
• Enforcement and collection of certain non-tax claims pursuant to 31 U.S.C. § 3711(g)(4)(C), including penalties (“FBAR penalties”) imposed for failure to report a financial interest in a foreign bank account, as required by 31 U.S.C. § 5314 and its implementing regulations.
• Appellate proceedings in connection with civil and criminal cases described above, including petitions to review decisions of the Tax Court of the United States.

See 28 C.F.R. §§ 0.70, 0.71.

Attorneys from the IRS's Office of the Chief Counsel represent the Commissioner of Internal Revenue in Tax Court litigation.  See 26 U.S.C. § 7452.

[updated June 2020]

6-1.110 - Criminal Tax Cases

The Tax Division oversees all federal criminal tax enforcement and handles the investigation and/or prosecution of certain criminal tax cases. The Division’s website includes a map reflecting the geographical assignments of the Tax Division Criminal Enforcement Sections.

With certain exceptions set forth in this chapter, only the Tax Division may authorize grand jury investigations of potential criminal tax violations and the designation of any individual or entity as a target of the investigations. Only after the Tax Division has authorized a grand jury investigation may a United States Attorney’s Office issue subpoenas and undertake other investigative actions. In addition, only after the Tax Division has authorized the prosecution of individuals and entities for criminal tax violations may a United States Attorney’s Office seek an indictment or file any tax charges. Criminal tax violations include not only federal criminal charges arising under the internal revenue laws but also related statutes contained in provisions other than Title 26, United States Code. See JM 6-4.200.

Once the Tax Division authorizes a tax investigation or prosecution, a United States Attorney’s Office generally has responsibility for handling the case. Upon the request of the United States Attorney’s Office, and provided that the Tax Division has sufficient resources, the Tax Division may assist the United States Attorney’s Office in investigating and/or prosecuting a tax case. The Tax Division may assign one or more of its highly qualified trial attorneys to handle the grand jury investigation and/or trial responsibilities or to work as co-counsel with an Assistant United States Attorney in one or more cases or investigations. If needed, the Tax Division can assign a Division attorney to assume responsibility for the United States Attorney's Office’s criminal tax docket for a period of time. Tax Division attorneys can also assist with criminal tax policy and litigation matters, including foreign evidence-gathering problems. Contact the Chief of the appropriate Criminal Enforcement Section for assistance.

[updated February 2018]

6-1.120 - Civil Tax Cases

Tax Division Responsibility. Attorneys in the Tax Division's Civil Trial Sections have primary responsibility for most civil tax litigation in the federal district and bankruptcy courts, as well as in state trial courts; attorneys in the Tax Division’s Appellate Section have primary responsibility for civil tax cases in federal and state appellate courts.

A United States Attorney's Office’s responsibilities in civil tax and tax-related bankruptcy cases will vary, depending on the nature of the case, local practice, and other circumstances. 

For a map reflecting the geographical assignments of the Tax Division Civil Trial Sections, as well as contact information, including mailing addresses and telephone and fax numbers for the Civil Trial Sections, the Court of Federal Claims Section, Appellate Section, and Office of Review, see https://www.justice.gov/tax/civil-trial-sections-geographical-map.

Counsel of Record.  Depending on local practice, and after consultation, an Assistant United States Attorney may be listed as counsel of record in a particular case, even when the Tax Division attorney has primary responsibility for the litigation. See 28 U.S.C. § 547. 

Tax Division Referrals.  On occasion, the Chief or Assistant Chief of a Civil Trial Section may request that the United States Attorney’s Office, rather than a Tax Division trial attorney, should represent the Government in a case that would otherwise be the primary responsibility of the Tax Division. When the Tax Division Chief or Assistant Chief requests that the United States Attorney’s Office handle a civil tax case, a Tax Division trial attorney may also be assigned to the case.

Direct Referrals by the IRS. The IRS refers some types of civil tax and tax-related bankruptcy cases directly to the United States Attorneys’ Offices. These include certain types of bankruptcy proceedings, actions under 28 U.S.C. § 2410 (other than interpleaders), and some summons litigation. If the United States Attorney’s Office has primary litigation responsibility for a civil tax case but is unable to staff the case, the United States Attorney should request assistance from the Chief of the appropriate Civil Trial Section of the Tax Division.

[updated June 2020]

6-1.130 -Confidentiality of Tax Return Information Supplied by IRS

The IRS, like other government agencies, supplies the Department of Justice with a referral letter and agency files authorizing prosecution or defense.  Referral letters and agency files that the IRS provides to the Department of Justice for the Department's use in representing the United States in federal tax litigation are confidential.  26 U.S.C. § 6103 and 26 C.F.R. § 301.6103(h)(2) define return information and how it must be handled and disclosed. See Tax Information Security Guidelines for Federal, State, and Local Agencies (IRS Pub. 1075, rev. 11-16), available at https://www.irs.gov/pub/irs-pdf/p1075.pdf. Should questions arise as to the definition and/or handling of information provided by the IRS, the Tax Division should be consulted.

A taxpayer may bring a damages action against the United States for a federal employee’s negligent or intentional disclosure of return information in violation of section 6103.  See 26 U.S.C. § 7431.  See also JM 6-5.470 (discussing procedures in suits for wrongful disclosure brought under 26 U.S.C. § 7431).  A federal employee who willfully discloses return information in violation of section 6103 may be charged with a felony and, upon conviction, dismissed from office or discharged from employment.  See 26 U.S.C. § 7213(a)(1).

Questions about what is encompassed within the scope of “return information” or how to interpret the prohibitions of Section 6103 may be directed to the Chief or Assistant Chiefs of the Civil Trial Section, Southern Region.

[update June 2020]

6-1.140 -Tax Division Manuals and Other Substantive Tax Information

The Tax Division has prepared several manuals that Assistant United States Attorneys may find useful.  These manuals are available on the Division’s FOIA Library web page: https://www.justice.gov/tax/foia-library.

• Criminal Tax Manual (2012)—a comprehensive procedural and substantive guide to the handling of criminal tax cases, with jury instructions and other forms. 
• Judgment Collection Manual (2004)—a procedural guide to collecting civil tax judgments. 
• Settlement Reference Manual (2009)—guidance and instructions for analyzing and processing settlements in civil tax matters, including tax-related bankruptcy cases. 
• Summons Enforcement Manual (2006)—guiding legal principles, procedures, and sample forms for use in summons enforcement actions and in defending actions to quash IRS summonses. 
   

Should the above-listed manuals or information conflict with this Title of the JM, this Title controls.

[updated June 2020]