A new "Taxpayers’ Bill of Rights" (TBOR) bill contains new language that appears to exempt many Internal Revenue Service records from the federal Freedom of Information Act.

The bill, H.R. 4163, sponsored by Rep. Rob Portman (R-Ohio,) Rep. Amo Houghton (R-N.Y.), and Rep. J.D. Hayworth (R-Ariz.), passed the House very quickly and currently is under consideration by the Senate Finance Committee.

Tax Analysts, a national tax watchdog organization based in Arlington Va., sounded an alarm on the FOIA implications of the bill in April and is looking for other organizations to join in asking the Senate to take a long, close look at the bill’s implications.

At issue is new language in the opening sentence of Section 6103 (a) of the Internal Revenue Code, which deals with confidentiality and disclosure of tax returns and return information. Currently, Section 6103 (a) states that no one may release tax return information unless authorized by the rules spelled out in that section. (In general, only the person or entity that files the return can access it.)

The new version, found in Section 201 of the TBOR, keeps the old language, but adds the words "not withstanding any other provision of law." Attorney Bill Dobrovir, who advises Tax Analysts, believes those words mean that the Internal Revenue Code would trump FOIA and would allow the IRS to reject requests for a wide variety of records based only on its own criteria.

The IRS, said Dobrovir, already uses a very broad definition of "taxpayer information" to deny requests for records. However, under FOIA, records can be presumed open unless an agency can show they fall under one of several specific statutory exemptions.

Form 990 returns for non-profit corporations are not affected by this change in law. Journalists and citizens will still have access to those records as provided in a different section of the Internal Revenue Code.

A report by the federal Joint Committee on Taxation notes that people have used FOIA in attempting to gain access to IRS records closed under Section 6103. The new language is seen by Tax Analysts as a way to shut off FOIA requests to a wide variety of records, including policy documents that have little or no connection with actual tax returns.

By removing FOIA from the picture, said Dobrovir, the IRS could presume any document is secret and block requests for it with no other justification. He said the new version also would prevent courts from forcing the release of documents that might be opened under FOIA. Dobrovir worries that passage of this bill could lead to other federal agencies asking Congress to remove their records from FOIA consideration.

For more information:

Ian Marquand, SPJ FOI Committee Chair, (406) 542-4449
Bill Dobrovir, attorney, Warrenville, Va., (504) 341-2183