The full FOIA: Freedom of Information Act request can help CPAs secure info related to tax case.

• Author: Rettig, Charles P.
• Position: PROFESSIONALISSUES

Following an unagreed resolution of a federal or California tax examination, practitioners may want to consider submission of a Freedom of Information Act (FOIA) request. With increased tax enforcement efforts, a FOIA request may hit the informational jackpot in terms of learning why a government examiner didn't rule in your client's favor.

The request can be in the form of a letter that, under the Freedom of Information Act, 5 U.S.C. Sec. 552, and the regulations promulgated thereunder, asks for each document (exclusive of the filed income tax returns) contained in government administrative files relating to the tax liabilities of a practitioner's client for the tax years at issue.

WHAT TO ASK FOR

1. The government's working administrative file(s) created during the audit. This includes worksheets, workpapers, notes, e-mails, documents, memoranda, computations and other materials prepared or accumulated by government employees for the exam.

   This also includes internal documents; memoranda; memoranda of all interviews of persons regarding the individual income tax liabilities of the taxpayer; copies of all statements (sworn or otherwise) given by individuals in connection with the investigation of the individual income tax liabilities of the taxpayer; Case Activity record; written reports and recommendations concerning the proposed assessment of additional tax and penalties; and any other information related to the determinations by the government.

   All of the above may be collectively called the "Administrative File."

2. All information and documents maintained electronically identifying each requested document by subject matter and format (such as tape, disk, etc.) that are not in the Administrative File.

3. All files relative to the audit that include information and documents obtained pursuant to summonses issued to third parties which are not included in the Administrative File.

4. All information relative to the audit that may have been prepared by consultants, independent or otherwise, and any other specialists assigned to the case which are not included in the Administrative File.

5. A listing of each government employee and representative who participated in any manner in the audit.

   Other considerations include stating in the request that the information being sought is not exempt under disclosure laws, is not a classified document, is not a protected internal communication, is not protected by "privacy" and is not a "protected...