DEPARTMENT: Court Opinions (CTS)

CITE: 96 TNT 57-28

LENGTH: 4614 words

DISTRICT COURT ORDERS IRS TO RELEASE FIELD SERVICE ADVICE.

( Tax Analysts v. Internal Revenue Service) (77 AFTR2d Par. 96-606) (No. 94-923 (GK)) (United States District Court for the District of Dist. of Columbia) (Section 6103 -- Tax Return Disclosure) (Release Date: March 15, 1996) (Doc 96-8423 (19 pages))

CODE: Section 6103 -- Tax Return Disclosure

SUMMARY:

The U.S. District Court for the District of Columbia has ordered the IRS to release to Tax Analysts field service advice memorandums (FSAs) prepared by the IRS Office of Chief Counsel.

Judge Gladys Kessler agreed with Tax Analysts that the documents are "statements of policy and interpretations which have been adopted" by the IRS, and are therefore subject to disclosure under section 552(a)(2) of the Freedom of Information Act. Judge Kessler also agreed with Tax Analysts that, for FOIA purposes, "FSAs have the same characteristics and serve the same purpose as the GCMs and [technical memoranda] that the IRS was ordered to disclose" in Taxation With Representation Fund (TWRF) v. IRS, 646 F.2d 666 (D.C. 1981).

Tax Analysts filed a FOIA request in 1993, asserting that FSAs are subject to public disclosure. The Service denied that request, asserting that FSAs contain "return information" or information protected by the attorney-client privilege. The Service agreed to release hundreds of informal FSAs -- one-page forms filled out by hand by National Office attorneys responding to questions raised by field agents, taxpayer service offices, and other IRS personnel -- but it refused to release any of the formal FSAs. Tax Analysts then filed suit in federal district court.

The IRS argued that FSAs have not been "adopted by the agency" because (1) they do not represent formal agency positions; (2) they are only occasionally subjected to high level review; (3) they do not serve as precedents and are not formally "binding"; and (4) they are different from those documents that the Service was ordered to disclose in TWRF.

Citing Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854 (D.C. Cir. 1980), and TWRF, Judge Kessler rejected the Service's argument, pointing out that "FSAs are 'routinely used by agency staff as guidance in conducting their audits,' and [that] the IRS is 'applying' FSAs in its 'dealings with the public.'"

Judge Kessler also rejected the Service's FOIA exemption arguments. "Quite simply," Judge Kessler said, "the information sought by [Tax Analysts] -- legal analysis and conclusions of law contained within FSAs -- are not 'return information' under any reasonable reading of [section] 6103(b)(2)(A)." FSAs, she added, "are not 'return information' simply because an IRS attorney declares them to be."

Judge Kessler also ruled that the documents are not exempt from disclosure under the governmental deliberative privilege, the attorney-client privilege, or the attorney work-product doctrine. She indicated that those arguments had been made, and rejected, by the TWRF court.

The court ordered the IRS to release 309 FSAs already identified by the Service, subject to redaction of return information.

AUTHOR: Kessler, Gladys

[2] ORDERED that Plaintiff's Motion for Summary Judgment is granted; and it is further

[3] ORDERED that Defendant's Motion for Summary Judgment is denied; and it is further

[4] ORDERED that Defendant release all requested FSAs except that all "return information" as defined by 26 U.S.C. section 6103(b) shall be redacted; and all attorney work-product shall be redacted from the 309 FSAs identified by Defendant.

Gladys Kessler
U.S. District Judge

Copies To:

William Dobrovir 65 Culpeper Street Warrenton, VA 22186

Michael Salem Tax Division U.S. Department of Justice Post Office Box 227 Washington, DC 20044

[5] This matter is before the Court on Cross Motions for Summary Judgment. Plaintiff seeks access to documents known as Field Service Advice memoranda ("FSAs") under the Freedom of Information Act ("FOIA"), 5 U.S.C. section 552 et seq.

I. STATEMENT OF FACTS

[6] Field Service Advice memoranda are prepared by attorneys employed in the Office of Chief Counsel for the Internal Revenue Service, located in Washington, D.C., and issued to, among others, IRS field attorneys, revenue agents and appeals officers. /1/ FSAs are issued in response to requests for advice, guidance and analysis on difficult or significant tax issues. They are taxpayer-specific documents, written in particular cases, with reference to particular taxpayers. FSAs provide advice on docketed or nondocketed cases, or, alternatively, may provide advice on industry-wide issues, or in response to hypothetical questions; and may address substantive and procedural matters. FSAs deal with "significant" tax issues, and one of their purposes is the "promotion of uniformity" in IRS assertions of positions on tax law. IRS Answers to Tax Analyst's Interrogatories Nos. 2, 9.

[7] FSAs follow a standard format prescribed by the "Chief Counsel's Directives Manual" ("CCDM"). See CCDM section (35)(19)(44). The format requires FSAs to include sections labeled "conclusion" and "legal analysis."

[8] FSAs are advisory; they are not binding on either the taxpayers to whom they pertain or the IRS. Whether they are followed is determined on a case-by-case basis by IRS field personnel. As one would expect, however, FSAs are "highly regarded," and the advice they contain is "generally taken." Gross Dep. at 114.

II. PROCEDURAL HISTORY

[9] On December 14, 1993, Plaintiff requested access to copies of all FSAs issued after January 1, 1992 by the Field Service Division of the Office of Chief Counsel, Department of the Treasury. On February 1, 1994, Plaintiff expanded its request to include FSAs issued by the Exempt Organization and International Divisions. The IRS denied these requests. After exhausting all administrative remedies, Plaintiff filed this lawsuit.

III. DISCUSSION

[10] Plaintiff seeks disclosure of FSAs under section 552(a)(2) of FOIA, which provides in relevant part:

(2) Each agency, in accordance with published rules, shall make available for public inspection and copying -- * * * (B) those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Registrar

(C) administrative staff manuals and instructions to staff that affect a member of the public

A. ARE FSAS SUBJECT TO DISCLOSURE UNDER SECTION 552(a)(2)?

[12] Plaintiff argues that FSAs are subject to disclosure under section 552(a)(2) because they are (1) statements of policy and/or interpretations which the Office of Chief Counsel has adopted; and/or (2) instructions to staff that affect a member of the public.

[13] The contested issue is whether FSAs have been "adopted" by the Office of Chief Counsel. Defendant argues that FSAs have not been "adopted by the agency" because (1) they do not represent formal agency positions; (2) they are only occasionally subjected to high level review; (3) they do not serve as precedents and are not formally "binding"; and (4) they are different from those documents that IRS was ordered to disclose under FOIA in Taxation With Representation Fund v. IRS, 646 F.2d 666 (D.C. Cir. 1981) ("TWRF"). Plaintiff argues, in contrast, that lack of "formal" adoption notwithstanding, FSAs have been "adopted" by the agency because they represent established policy through which the agency discharges its regulatory duties.

552(a)(2). The second question then becomes whether FSAs are exempt from disclosure under either section 552(b)(3) or (b)(5).

[14] Two cases decided by our circuit guide the Court's decision, Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854 (D.C. Cir. 1980)("Coastal States"), and TWRF, supra. /2/ In Coastal States, Plaintiff sued under FOIA to force the Department of Energy ("DOE") to disclose memoranda written by DOE regional counsel to auditors working in DOE field offices. As in this case, the Coastal States memoranda "were issued in response to requests for interpretations of regulations with respect to a particular set of facts encountered by field agents while conducting audits." 617 F.2d at 859. The DOE claimed, as IRS claims here, that the memoranda were immune from FOIA disclosure because they were neither "formal" interpretations of DOE regulations nor were they "binding" on DOE field personnel. Id.

[15] The Court of Appeals in Coastal States rejected that argument, stating forcefully that:

DOE's contention that these documents are not "final opinions," absolutely binding on the auditors, misses the point. The evidence strongly supports the district court's conclusion that, in fact, these opinions were routinely used by agency staff as guidance in conducting their audits, and were retained and referred to as precedent. If this occurs, the agency has promulgated a body of secret law which it is actually applying in its dealings with the public but which it is attempting to protect behind a label.

[16] In all legally relevant respects, FSAs are as much adopted by IRS as the DOE memoranda were in Coastal States. The Coastal States court said that once a document was "adopted, FORMALLY OR INFORMALLY, as the agency position on an issue OR IS USED BY THE AGENCY IN ITS DEALINGS WITH THE PUBLIC," it was subject to disclosure under FOIA. 617 F.2d at 866 (emphasis added). Here, FSAs are "routinely used by agency staff as guidance in conducting their audits," and IRS is "applying" FSAs in its "dealings with the public." The sole distinction between IRS FSAs and DOE memoranda -- that FSAs are not officially referred to as precedent -- is hardly enough to distinguish Coastal States, or to persuade the Court that IRS has not informally adopted FSAs as agency positions on specific tax issues.

[17] One year after its decision in Coastal States, our Court of Appeals relied on it in TWRF, when it ordered IRS to disclose two classes of documents similar to FSAs: General Counsel's Memoranda ("GCMs") and Technical Memoranda ("TMs"). /3/ The court reasoned that the documents embodied internal IRS "law" that supported or explained IRS policy determinations. Specifically, it held that "GCMs contain the reasons behind the adoption of revenue rulings, private letter rulings, and technical service memoranda," id. at 266; and TMs explained "the reasons behind the adoption of the Treasury decision . . . [they] are used by IRS personnel in determining the tax status of taxpayers." Id.

[18] For the purposes of FOIA, FSAs have the same characteristics and serve the same purpose as the GCMs and TMs that IRS was ordered to disclose in TWRF. Just like GCMs, FSAs are used by "IRS personnel who confer or negotiate on tax liability matters with taxpayers," and IRS personnel "may refer to [FSAs] for guidance as to positions to take in such negotiations." 646 F.2d at 670. FSAs, like GCMs, are used in the field to ensure there will "'be some uniformity in positions taken.'" Id. at 670 (internal citations omitted). Similar to an FSA, a TM "summarizes or explains the proposed rules, provides background information, states the issues involved, identifies any controversial legal or policy questions . . . and gives the reason for that approach," and its purpose is to "'to help [IRS] decisionmakers.'" 646 F.2d at 671.

[19] In determining whether documents are disclosable, our Court of Appeals "looks beneath formal lines of authority to the reality of the decisionmaking process in question." Schlefer v. United States, 702 F.2d 233, 238 (D.C. Cir. 1963). The relevant issue is whether "in practice [the documents] represent interpretations of established policy on which the agency relies in discharging its regulatory responsibilities." Coastal States, 617 F.2d at 869.

[20] While it is certainly true that FSAs are not absolutely identical to GCMs or TMs, in most cases they are, like GCMs and TMs, "adopted, formally or informally, as the agency position on an issue or . . . used by the agency in its dealings with the public." TWRF, 646 F.2d at 682. And more importantly, all of these documents inform the public about the decision making of IRS -- precisely the type of information that Congress, in enacting FOIA, intended to make available to the public. "The basic purpose of [the] FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978); U.S. Dept. of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 733 (1989).

[21] The Court concludes, therefore, that FSAs are "statements of policy and interpretations which have been adopted" by IRS, and are therefore subject to disclosure under section 552(a)(2). /4/ The retaining question is whether FSAs are subject to any of FOIA's exemptions.

B. ARE FSAs SUBJECT TO FOIA EXEMPTIONS?

[22] There are nine exemptions to disclosure under FOIA. 5 U.S.C. section 552(b)(1-9). The IRS claims that FSAs fall under exemptions (3) and (5). Exemption (3) covers information that is "specifically exempted from disclosure by statute." Exemption (5) protects "inter-agency or intra-agency memorandums or letters which would not be available by law to a party . . . in litigation with the agency." The FOIA requires the agency to segregate and disclose "any reasonably segregable portion of a record," after deleting the portions which are exempt. 5 U.S.C. section 552(b).

1. EXEMPTION (3)

[23] Exemption (3) relates to materials that are "specifically exempted from disclosure by statute." 5 U.S.C. section 552(b)(3). The Internal Revenue Code exempts tax returns and return information from disclosure under FOIA. 26 U.S.C. section 6103(b). /5/ Defendant contends that most FSAs contain "return information" which may not be disclosed under FOIA. Return information is defined as:

(A) a taxpayer's identity, the nature source, or amount of his income, payments, receipts, deductions, exemptions, credits, assets, liabilities, net worth, tax liability, tax withheld, deficiencies, overassessments, or tax payments, whether the taxpayer's return was, is being, or will be examined or subject to other investigation or processing, or any other data, received by, recorded by, prepared by, furnished to, or collected by the Secretary with respect to a return or with respect to the determination of the existence, or possible existence, or liability (or the amount thereof) of any person under this title for any tax, penalty, interest, fine, forfeiture, or other imposition, or offense.

[25] The Court disagrees. Quite simply, the information sought by Plaintiff -- legal analysis and conclusions of law contained within FSAs -- are not "return information" under any reasonable reading of section 6103(b)(2)(A). Defendant's well-crafted declaration nothwithstanding, FSAs are not "return information" simply because an IRS attorney declares them to be. See 2d Martin Decl. Paragraph 5 (FSAs "themselves CONSTITUTE return information of third party taxpayers in their entirety") (emphasis in original). Such a conclusion would be directly at odds with TWRF, where the district court expressly authorized redaction of those portions of GCMS, TMs, and AODs that did contain "return information," but allowed disclosure of the non-redacted sections which did not contain "return information." See 646 F.2d at 676. As discussed above, in legally relevant aspects, FSAs are akin to GCMs and TMs. If those documents do not constitute "return information" in their entirety, there is no compelling reason to believe that FSAs do.

[26] Nothing in Church of Scientology of California v. Internal Revenue Service, 484 U.S. 9 (1987) ("Church") militates against that result. Defendant is incorrect in arguing that Church held that third-party return information can never be redacted. That is far too broad a reading of Church. Rather, the Supreme Court hold that the mere "removal of identification from return information would not deprive it of protection under section 6103(b)." Id. at 276. In other words, redacting only identification information (e.g. taxpayer name, address, etc.) will not necessarily satisfy the section (3) exemption. See Church of Scientology of Texas v. I.R.S., 816 F. Supp. 1138, 1150 (W.D. Tex. 1993) ("simply removing identifying details does not permit the disclosure of otherwise confidential return information"). Church simply did not discuss the broader question of whether redacting identification information as well as all other "return information" listed in section 6103 would satisfy Exemption (3). Other than the conclusory Martin declaration, Defendant has not shown why ALL section 6103 "return information" could not be segregated from the FSAs and the remainder -- legal analysis and conclusions -- disclosed pursuant to FOIA. If a document cannot be segregated into exempt and non-exempt portions, the agency must state that it cannot and explain why it cannot. See Schiller v. NLRB, 964 F.2d 1205, 1209-1210 (D.C. Cir. 1992). Because IRS has failed to do this, the Circuit's decision in TWRF, affirming the district court's ruling that section (a)(2) documents (GMCs, TMs, AODs and now FSAs) could be partially redacted and released to the public, governs.

[27] The Court holds, therefore, that Exemption (3) does not apply to FSAs so long as all "return information" is fully redacted from the documents, and such "return information" does not include discussion of tax law principles, legal analysis or legal conclusions.

2. EXEMPTION (5)

[28] Defendant claims that FSAs are also immune from disclosure under 5 U.S.C. section 552(b)(5). This subsection exempts "interagency or intra-agency memorandums or letters which would not be available by law to a party . . . in litigation with the agency." Under Exemption (5), documents that would be shielded from civil discovery are immune from FOIA disclosure. NLRB v. Sears, Roebuck & Co., 421 U.S. 149-150 (1975). Courts have recognized that the governmental deliberative privilege, the attorney-client privilege, and the attorney work-product doctrine are included under the Exemption (5) umbrella.

a. DELIBERATIVE PROCESS

[29] The deliberative process privilege exempts "documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated." TWRF, 646 F.2d at 677. The deliberative privilege endeavors to prevent disclosure "which would be injurious to the consultative functions of government." Id. In evaluating an exemption claim, the deliberative privilege should be construed "as narrowly as consistent with efficient Government operation." Environmental Protection Agency v. Mink, 410 U.S. 73, 87 (1973).

[30] Only documents that are both "predecisional" and "deliberative" qualify for withholding under the deliberative process privilege. See Access Reports v. Department of Justice, 926 F.2d 1192, 1194 (D.C. Cir. 1991). A predecisional document is one that was prepared in order "to assist an agency decisionmaker in arriving at his decision." Renegotiation Bd. v. Grumman Aircraft Eng. Corp., 421 U.S. 168 (1975). A deliberative document is one whose disclosure would "discourage candid discussion within an agency." Dudman Communications v. Dept. of Air Force, 815 F.2d 1565, 1568 (D.C. Cir 1987).

[31] The TWRF court discussed in great depth the deliberative process exemption with respect to GMCs, TMs and AODs, see TWRF, 646 F.2d at 676-684. The deliberative process exemption does not apply to FSAs for the same reason the TWRF court concluded it did not apply (with some exceptions) to GMCs, TMs, and AODs: (1) FSAs are post- decisional documents that represent and explain IRS' position on an issue, see Section IIA, supra, and thus constitute the "working law" of the agency, 646 F.2d at 677; and (2) FSAs are "interpretations which [IRS] actually applies in cases before it," 646 F.2d at 679 (quoting Sterling Drug Inc., v. FTC, 450 F.2d 698, 708 (D.C. Cir. 1971). As Judge Wald explained in Coastal States, there is little possibility that "an attorney performing this job would be less 'frank' or 'honest' if he or she knew that the document might be made known to the public." 671 F.2d at 869. As such, FSAs are neither "predecisional" nor "deliberative" and are not covered by Exemption (5). /6/

b. ATTORNEY-CLIENT

[32] The attorney-client privilege exemption concerns "confidential communication between an attorney and his client relating to a legal matter for which the client has sought professional advice." Mead Data Central, Inc. v. Dept. of Air Force, 566 F.2d 242, 252 (D.C. Cir. 1977). Defendant claims that FSAs are exempt under the attorney-client privilege because the Office of Chief Counsel is the attorney for the IRS and communications between the two entities should be considered privileged. The IRS made this same argument in TWRF and it was rejected. 645 F.2d at 677 n.18. Although the Court of Appeals did not provide a detailed analysis, it affirmed the reasoning of the district court, which relied on Falcone v. IRS, 479 F. Supp. 985, 988 (E.D. Mich. 1979). Falcone recognized the general applicability of the attorney-client privilege under FOIA exemption (5), but held that

documents which are STATEMENTS OF POLICY AND INTERPRETATIONS ADOPTED BY THE AGENCY [i.e. (a)(2) documents] . . . are not privileged attorney-client communications. . . . [A] broad attorney-client privilege would permit legal opinions, recognized as authoritative interpretations within the agency, to be hidden from the public.

[33] And in Coastal States, a case with facts almost identical to this case, the Court of Appeals held that the attorney-client exemption did not attach:

While it is clear that an agency can be a "client" and agency lawyers can function as "attorneys" within the relationship contemplated by the privilege, this does not seem to be such a case. It is hard to imagine the "confidential information" which an auditor might have communicated to the regional counsel. 617 F.2d at 863.

[34] Under the controlling precedent of this circuit, the attorney-client privilege does not apply to statements of policy and interpretations adopted by the agency.

c. ATTORNEY WORK-PRODUCT

[35] The work-product privilege protects documents and other memoranda prepared by an attorney in contemplation of litigation. See Hickman v. Taylor, 329 U.S. 495, 509-510 (1947); Fed. R. Civ. P. 26(b)(3). The privilege "provides a working attorney with a 'zone of privacy' within which to think plan, weigh facts and evidence, candidly evaluate a client's case, and prepare legal theories." Coastal States, 617 F.2d at 864. Our Court of Appeals has held that the privilege "extends to documents prepared in anticipation of foreseeable litigation, even if no specific claim is contemplated." Schiller, 964 F.2d at 1208. However, the mere fact that it is conceivable that litigation may occur at some unspecified time in the future will not necessarily be sufficient to protect attorney- generated documents; the policies of FOIA would be largely destroyed if agencies were to withhold any documents created by attorneys "simply because litigation might someday occur." Senate of P.R. v. United States Dep't of Justice, 823 F.2d 574, 587 (D.C. Cir. 1987) (citing Coastal States, 617 F.2d at 865.)

[36] Defendant claims the work-product privilege for 309 formal FSAs because these FSAs "were prepared in contemplation of specific litigation by attorneys of the National Office of Chief Counsel." Plaintiff concedes that attorney work-product may be deleted from the 309 FSAs. Plaintiff argues, however, that IRS should disclose the remaining portions of the documents.

[37] The Court agrees. Under the work-product privilege, Defendant may exclude ONLY attorney work-product, that is, text concerning "the mental impressions, conclusions, opinions, or legal theories of an attorney . . . concerning the litigation," Fed. R. Civ. P. 26(b)(3). Those portions of the 309 FSAs unrelated to work- product must be disclosed.

IV. CONCLUSION

[38] For the reasons stated above, the Court finds that FSAs are disclosable under section 552(a)(2). The Court also finds that FSAs are not protected by Exemption (3). Nor are FSAs protected by Exemption (5), except for all "return information" as defined by 26 U.S.C. section 6103(b), which must be redacted prior to release; and except for attorney work-product from the 309 FSAs already identified, which must also be redacted.

[39] Accordingly, Plaintiff's Motion for Summary Judgment is granted, and Defendant's Cross-Motion for Summary Judgment is denied. An Order will issue with this opinion.

Date: March 15, 1996

Gladys Kessler
U.S. District Judge

Copies To:

William Dobrovir 65 Culpeper Street Warrenton, VA 22186

Michael Salem Tax Division U.S. Department of Justice Post Office Box 227 Washington, DC 20044

/1/ Specifically, FSAs are issued by the Offices of the Associate Chief Counsel (International), Associate Chief Counsel (Employee Benefits & Exempt Organizations), and the Assistant Chief Counsel (Field Service), all within the National Office of the Office of Chief Counsel.

/2/ Although Coastal States and TWRF focused on whether the documents at issue were subject to certain FOIA exemption, not whether the documents were disclosable under section (a)(2), the Court assumed without extensive discussion that section (a)(2) applied. That is especially significant given the similarity between the documents at issue in Coastal States and TWRF and those at issue in this case, see infra.

/3/ The TWRF court also ordered disclosure of Actions On Decisions ("AODs"), which are less similar to FSAs than GCMs and TMs. General Counsel Memoranda (GCMs) are: "Legal memorandums . . . prepared in response to a formal request for legal advice from the Assistant Commissioner (Technical) . . . . The body of the GCM contains lengthy legal analysis of the substantive issues, and the recommendations and opinions of the Office of Chief Counsel." TWRF, 646 F.2d at 669 (citation omitted); Technical Memoranda (TMs) are memoranda "from the Commissioner of the Internal Revenue Service to the Assistant Secretary of the Treasury (Tax Policy) . . . The purpose of a TM is to help decision makers determine whether the proposed Treasury decision . . . should be issued and what its substantive content should be. . . . [A] TM summarizes or explains the proposed rules, provides background information, states the issues involved, identifies any controversial legal or policy questions, discusses the approach taken by the draftsperson, and gives the reasons for that approach." Id. at 671. Actions on Decisions ("AODs") declare whether the Chief Counsel will accept ("acquiesce" in) a particular federal district or appeals court decision or instead will continue to litigate that issue in other circuits. Id at 672.

/4/ Because the court has decided that FSAs are subject to disclosure under section 552(a)(2)(B), we need not decide whether FSAs are also "instructions to staff that affect a member of the public." Section 552(a)(2)(C).

/5/ Exemption (3) incorporates 26 U.S.C. section 6103(b) into FOIA. See Church of Scientology of California v. IRS, 484 U.S. 9 (1987).

/6/ In TWRF the court distinguished between GCMs that had been distributed throughout the agency and those that had been "merely considered and rejected" by IRS officials. 646 F.2d at 681. Reasoning that the rejected GCMs were "predecisional and/or purely deliberative," the court held that those documents could be withheld pursuant to Exemption (5). An analogous distinction in this case would be to order disclosure of those FSAs that had been followed by IRS field personnel, and withhold disclosure -- under Exemption (5) -- of those FSAs that had not been followed in the field. Aside from the administrative burden such an order would impose (IRS claims that they do not track whether individual FSAs are followed), the Court sees little benefit in withholding some FSAs under the deliberative process doctrine and not others. The point is not whether a particular FSA was followed in a particular case (although apparently most are); it is that FSAs represent IRS' legal interpretation of its own regulations. That is precisely the type of information that the FOIA was designed to bring to light.

Last updated 11 April 1997
by Chris Owen (chriso@lutefisk.demon.co.uk)