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CONWAY v. UNITED STATES IRS

January 12, 1978

Michael M. Conway, Plaintiff
v.
United States Internal Revenue Service, Defendant


Gasch, District Judge.


The opinion of the court was delivered by: GASCH

GASCH, District Judge:

 Plaintiff herein seeks access to certain Internal Revenue Service (IRS) documents pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552 (1976). On September 8, 1976, plaintiff requested from the IRS

 
(1) all statements of policy, final decisions and instructions to staff relating to the Ontario Mining Tax ("OMT") imposed by the Province of Ontario, Canada, particularly the creditability of the OMT as a foreign tax credit under Section 901 of the Internal Revenue Code and (2) any orders, summaries or written records of a meeting held on April 24, 1975 between IRS personnel and Dr. Thomas A. Mohide, the Ontario Mining Assessor who administers the OMT.

 In its initial search, the defendant found two documents it deemed responsive to the request, but it notified plaintiff by letter on June 7, 1977, that it would not produce either of them. On June 20, 1977, plaintiff filed this action. As a result of discussions between the parties, the IRS conducted another search of its files and found additional documents bringing the total number at issue in this case to forty.

 These forty documents generally appear to fall within one of three categories, but all were generated in connection with two technical advice memoranda (TAM) *fn1" dealing with the creditability of the Ontario Mining Tax as a foreign tax credit under section 901 of the Internal Revenue Code. The three categories of documents are:

 
(1) the two technical advice memoranda and the documents constituting the background file for each;
 
(2) a proposed revenue ruling based on the first TAM and documents generated in the course of its consideration by various officials of the IRS (this led to promulgation of the second TAM); and
 
(3) additional documents generated during consideration of proposed revenue rulings dealing with the creditability of the tax after issuance of the second TAM.

 The case is now before the Court on cross-motions for summary judgment. The issues presented to the Court essentially are whether the documents within category one are exempt from disclosure at this time because of the effect of the Tax Reform Act of 1976 *fn2" and whether the documents in categories two and three are exempt from disclosure because they are documents exempted by other statutes *fn3" or are interagency memoranda, *fn4" or both.

 The threshold issue concerns the possible lack of subject matter jurisdiction by this Court to grant plaintiff's request for access to the documents within category one. This issue arises out of section 1201 of the Tax Reform Act of 1976, *fn5" which added a new section 6110 to the Internal Revenue Code providing a complex statutory framework for public disclosure of "any written determination and any background file document relating to such written determination." I.R.C. § 6110(a). A "written determination" is defined as "a ruling, determination letter, or technical advice memorandum." I.R.C. § 6110(b)(1). A "background file document" is defined to include

 
the request for that written determination, any written material submitted in support of the request, and any communication (written or otherwise) between the [IRS] and persons outside the [IRS] in connection with such determination . .. received before issuance of the written determination.

 I.R.C. § 6110(b)(2). These definitions clearly encompass the documents described in category one above. The general rule is that these documents are to be open to the public pursuant to regulations prescribing the place for inspection. There is an exception to this rule, however. Subsection (h) addresses written determinations and related background file documents that were issued pursuant to a request made before November 1, 1976. It provides that these documents are to be made "available to public inspection at the earliest practicable date after funds for that purpose have been appropriated and made available to the [IRS]." *fn6" I.R.C. § 6110(h)(2) (emphasis added). The two technical advice memoranda and the background documents at issue here were both requested prior to November 1, 1976. Therefore, the express language of subsection (h) would apply, requiring plaintiff to await for disclosure under this provision. *fn7"

 Plaintiff submits, however, that section 6110 does not apply because the two exceptions to the exclusivity provision of section 6110 permit disclosure ...


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