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38.2.2.2
(08-11-2004)
Referrals for Grand Jury Investigation
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Grand jury investigations consist of either specific taxpayer targets
or projects or both. It is within the province of the Service to determine
whether its commitment of personnel will be to an investigation conducted
by a grand jury. The Service has concluded that such commitment will be to
the administrative process unless, in the opinion of the approving Service
officials, a grand jury investigation is necessary and appropriate in the
circumstances. A grand jury is considered to be necessary and appropriate
in the circumstances where it is apparent that the administrative process
cannot develop the relevant facts within a reasonable period of time, or coordination
of the tax investigation with an ongoing grand jury investigation would be
more efficient, and the case has significant deterrent potential.
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A referral for grand jury investigation is accomplished by the Special
Agent in Charge (SAC) referring a recommendation for such to a DOJ component.
The Criminal Tax attorney’s responsibility in the grand jury process
is to review and evaluate the request and to provide a legal analysis to the
SAC.
Note:
See Tax Division Direction No. 86-59 to determine which DOJ component
(i.e., Tax Division or US Attorney) should be sent the referral. In addition,
questions concerning the proper interpretation of the Directive should be
forwarded directly to the Tax Division.
38.2.2.2.1
(08-11-2004)
Types of Grand Jury Referrals
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A referral for grand jury investigation can emanate from:
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A request by Criminal Investigation for the initiation of a grand jury
investigation, also known as a Service initiated request for grand jury investigation
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A request by an attorney for the Government for Service participation
in a grand jury investigation
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While DOJ may convert a referral for prosecution to an authorization
to conduct a grand jury investigation, such cases, unless expressly referred
to herein are not considered as "grand jury referrals"
within
the purview of these provisions.
38.2.2.2.2
(08-11-2004)
Standards of Review
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Regardless of which type of grand jury referral is involved, the review
by Counsel is to determine:
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Whether there are articulable facts supporting a reasonable belief that
a crime has been committed
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Whether referral for grand jury investigation would be necessary and appropriate
in the circumstances
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Whether there are legal impediments or other factors that substantially
detract from or negate the prospect of ultimately developing admissible evidence
necessary to establish guilt beyond a reasonable doubt and reasonable probability
of conviction
38.2.2.2.3
(08-07-2008)
Review by the Associate Chief Counsel (Criminal Tax)
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Grand jury cases involving the following sensitive individuals and/or
issues will be forwarded by the Criminal Tax attorney to the Associate Chief
Counsel (CT) for review, evaluation, and preparation of the criminal evaluation
memorandum:
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Currently serving elected federal officials, (i.e., Members of Congress)
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Current Article III judges, (i.e., United States District Court Judges)
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Current high-level Executive Branch officials, (i.e., Cabinet level officials)
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Currently serving elected statewide officials, (i.e., Governor, Attorney
General)
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Current members of the highest court of a state
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Currently serving mayors of municipalities having a population in excess
of 250,000
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Cases involving perjury, subornation of perjury, or false declaration
occurring during a Untied States Tax Court proceeding under 18 U.S.C. §§
1621, 1622, and 1623
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Cases where the proposed target of the grand jury investigation is an
IRC § 501(c) or (d) organization
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Publicly traded companies (defined as companies that have issued securities
through an initial public offering and whose shares are traded on the open
market)
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Companies with annual gross revenues exceeding $10,000,000,000.00
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While mandatory coordination with the Associate Chief Counsel (CT) is
required in the above situations, communication consistent with Rule 6(e)
is encouraged in other grand jury investigations involving local individuals
who receive national and/or regional media coverage.
38.2.2.2.4
(08-11-2004)
Use of Grand Jury Information
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If information considered to be "matters occurring before
the grand jury"
under Rule 6(e) is involved, that information is provided
to Service officials by an attorney for the Government for the purpose of
determining whether the Service wishes to commit personnel to assist the attorney
for the Government in the grand jury investigation.
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All information considered to be "matters occurring before
the grand jury"
not the subject of a court order under Rule 6(e) making
such information available to the Service and Counsel for use independent
of the grand jury secrecy rule, shall be carefully controlled.
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Service and Counsel personnel are not entitled to access or use information
subject to the restrictions of Rule 6(e) for any purpose other than assisting
an attorney for the Government in the grand jury investigation.
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Counsel should restrict the number of persons having access to the grand
jury information to the minimum number essential to conduct a proper evaluation.
38.2.2.2.5
(08-11-2004)
Conferences in Grand Jury Cases
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Conferences should not be offered to taxpayers who are the subject of
a grand jury investigation recommendation, nor should these taxpayers be advised
of the existence of the grand jury recommendation.
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