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13.1.5.2
(01-02-2007)
Why Confidentiality is Important to Taxpayers and TAS
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Confidentiality is often viewed as essential to any relationship in
which one party is charged with representing, advocating on behalf of, or
negotiating for another party. See, e.g., IRC § 7525 (extending the traditional attorney-client
confidentiality privilege to communications between taxpayers and non-attorney
tax practitioners). Senator John Breaux, a sponsor of RRA 98 in the Senate,
explained the importance of TAS confidentiality as follows:
"We are really trying to build some walls between the
IRS and the Taxpayer Advocate and their work with the taxpayers, the American
citizens of this country, to make sure that they, the taxpayers, know the
person they are dealing with is independent, has their interests at heart,
and doesn’t have to go report to the Internal Revenue Service district
director about what he or she has discussed or talked about with the taxpayer
who is seeking assistance.… There will be someplace they can go, which
will be independent of the IRS, which will have as their first, second, third,
and last mission to help that taxpayer. They can be comfortable there will
not be communication or sharing of information of their discussions with the
Taxpayer Advocate with the Internal Revenue Service. I think this is a very
important part of the bill that is before the Senate today."
Cong.
Rec. S4239, S4240 (May 5, 1998) (Statement of Senator John Breaux).
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TAS employees function as "ombuds"
– persons
to whom taxpayers may come with complaints and questions and who resolve disputes
between taxpayers and the IRS without litigation. When TAS employees resolve
disputes, they provide a form of alternative dispute resolution (ADR).
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TAS modeled its confidentiality policies and procedures after guidance
developed and published by the Federal ADR Steering Committee and the American
Bar Association (ABA). Confidentiality is a key element of ADR. See Administrative
Dispute Resolution Act, 5 USC § 574. Further, confidentiality is considered
an essential characteristic of ombuds offices. Both the Administrative Dispute
Resolution Act of 1996 (ADR Act) and the ABA Standards for the Establishment
and Operation of Ombuds Offices explicitly acknowledge the role confidentiality
plays in bringing parties in a dispute to resolution. See American
Bar Association, Revised Standards for the Establishment and Operation of
Ombuds Offices, 14 (adopted Feb. 9, 2004)
American Bar Association, Revised Standards for the Establishment and Operation
of Ombuds Offices, 14 (adopted Feb. 9, 2004) (last visited November 14,
2006); Federal Alternative Dispute Resolution Council, Department of Justice,
Confidentiality in Federal Alternative Dispute Resolution Programs, 65 Fed
Reg. 83,085 (Dec. 29, 2000). The ABA Standards provide:
An ombuds does not disclose and is not required to disclose any information
provided in confidence, except to address an imminent risk of serious harm.
Records pertaining to a complaint, inquiry, or investigation are confidential
and not subject to disclosure outside the ombuds’s office. An ombuds
does not reveal the identity of a complainant without that person’s
express consent. An ombuds may, however, at the ombuds’s discretion
disclose non-confidential information and may disclose confidential information
so long as doing so does not reveal its source. An ombuds should discuss any
exceptions to the ombuds’s maintaining confidentiality with the source
of the information.
***
Confidentiality is an essential characteristic
of ombuds that permits the process to work effectively. Confidentiality promotes
disclosure from reluctant complainants, elicits candid discussions by all
parties, and provides an increased level of protection against retaliation
to or by any party. Confidentiality is a further factor that distinguishes
ombuds from others who receive and consider complaints such as elected officials,
human resource personnel, government officials, and ethics officers.
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TAS’s discretion not to disclose taxpayer information to the IRS
serves the following purposes:
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To strengthen TAS’s independence and neutrality.
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To encourage taxpayers to trust and seek help from TAS without fear of
retaliation by other IRS employees.
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To encourage taxpayers to freely communicate with TAS in order to resolve
their problems.
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To calm taxpayers’ fears that information provided to TAS will be
used to the taxpayers’ detriment.
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