This is the fifth article in the Freedom Of Information Act Requests (FOIAs) and Government Data Practices Act Requests (GDPAs) series. This series is intended to provide taxpayers and practitioners with answers to the most commonly asked questions relating to the use of FOIAs and GDPAs. The use of FOIAs and GDPAs allow taxpayers and practitioners to recover information from the Internal Revenue Service (IRS) and Minnesota Department of Revenue (MDR) and use that information to resolve their case.

The focus of this article is on the administrative appeal procedures relating to the IRS’s response to a FOIA request.

The IRS must inform the taxpayer of the reasons for the denial and provide that taxpayer the right to appeal the denial of releasing a document or a fee waiver. The taxpayer may appeal any adverse determination or the IRS’s failure to conduct an adequate search for the documents requested. An administrative appeal cannot be filed for the lack of a timely response.

While an appeal does not need to include any arguments, it is recommended that it include arguments supporting disclosure of the documents. Aside from that, it is recommended that the appeal include the following:

  1. The FOIA request that is being appealed.
  2. The FOIA request number assigned by the IRS.
  3. The name and address of the requester.
  4. A telephone number of the person requesting the appeal.
  5. While not required, it makes sense to include a copy of the IRS’s initial decision.

An appeal must postmarked within 35 days after the date of the letter denying access to the information and within 35 days of the date of other adverse determinations as described in Treasury Regulation 601.702 (c)(10). Be sure to mark the lower left hand corner of the envelope containing the letter of appeal with the words “Freedom of Information Act Appeal.”

The IRS is required to make a decision on an appeal within 20 days (excluding Saturdays, Sundays, and legal holidays) after the date of receipt of the appeal unless extended pursuant to Treasury Regulation 601.702(c)(11)(I). The IRS can extend the time limits by an additional 10 days under unusual circumstances (see Treasury Regulation 601-702(c)(11)(I)).

If the IRS fails to comply with the time limitations, the taxpayer will be deemed to have exhausted administrative remedies and may proceed with a judicial appeal in a Federal District Court. Treasury Regulation 601.702 (c)(13) sets forth the circumstances under which the taxpayer may proceed with a judicial appeal. If a taxpayer finds it necessary to go to court and substantially prevails in that endeavor, the taxpayer may be awarded reasonable attorney fees and litigation costs.

The scope and authority for submitting a GDPA will be the topic of our next blog article in this series.