Over several decades, the IRS has contested lawsuits seeking public access to various forms of legal guidance.
In 2007, it settled a case seeking access to legal advice the Office of Chief Counsel provides to national office program managers known as “Program Manager Technical Advice” (PMTA). Yet the Office of Chief Counsel releases relatively few PMTA memos to the public despite the wide range of issues on which it is asked to opine.
The Taxpayer Advocate Service (TAS) sought to determine the standards the Office of Chief Counsel applies in determining which guidance to release.
TAS found that the Office of Chief Counsel has not developed written standards describing what constitutes PMTA; it relies on the judgments of hundreds of National Office attorneys who have received little to no training on this subject to decide what to transmit for disclosure; it has no systemic way to identify PMTA or assess general compliance with the terms of the court settlement; and it asserts that only advice provided in memorandum form must be disclosed. The Office of Chief Counsel takes the position that when an attorney provides advice to a national office program manager, the disclosure requirements can be avoided if the attorney transmits the advice as an email rather than as a memorandum (although it says it does not encourage this practice).
The report recommends the Office of Chief Counsel develop clear written guidance that defines when advice constitutes PMTA; that it eliminate the loophole that allows attorneys to keep advice secret if they transmit it by email; and that it establish a process to ensure that advice that should be disclosed as PMTA is identified and disclosed in a timely manner.