9.5.2. Grand Jury Investigations

(1) The IRS may request the use of a grand jury either before, during, or after conducting an administrative investigation.

(1) See IRM 9.1.2, Authority for the delegated authority relating to 9.5.2, Grand Jury Investigations.

(1) The Director, Global Financial Crimes & Policy is responsible for developing, maintaining, and overseeing this IRM and ensuring compliance with current policies and procedures.

(1) The Director, Global Financial Crimes & Policy:

1. Review the IRM annually.

2. Update the IRM when content is no longer accurate and reliable to ensure employees correctly complete their work assignments and for consistent administration of the tax laws.

3. Incorporate all permanent interim content into the next version of the IRM section prior to the expiration date.

(1) The Director, Global Financial Crimes & Policy will review the instructions and guidelines relating to the investigation of tax returns and other IRS documents for procedural, operational, and editorial changes.

(1) The following table lists the terms and acronyms used throughout this IRM section and their definitions:

(1) Delegation Order No. 9-6.

(2) Department of the Treasury General Counsel Order No. 4.

(3) Department of the Treasury Order No. 150–35.

(4) Form 9131, Request for Grand Jury Investigation.

(5) IRM 9.3.1, Disclosure.

(6) IRM 9.4.1, Investigation Initiation.

(7) IRM 9.4.7, Consensual Monitoring.

(8) IRM 9.4.9, Search Warrants, Evidence, and Chain of Custody.

(9) IRM 9.5.1, Administrative Investigations and General Investigation Procedures.

(10) IRM 9.5.12, Processing Completed Criminal Investigation Reports.

(11) IRM 9.11.2, Domestic and Foreign Travel.

(12) IRM 10.2, Physical Security Program.

(13) Tax Division Directive No. 86–59.

(14) United States Code Services (USCS) Federal Rule of Civil Procedure (FRCP) R-45, Subpoena, and R-17, Subpoena.

(1) In both IRS initiated requests and requests initiated by an attorney for the government, the special agent (SA) must prepare Form 9131, Request for Grand Jury Investigation. Criminal Tax (CT) Counsel reviews the Form 9131 and the accompanying exhibits and prepares a Criminal Evaluation Memorandum (CEM) to the Special Agent in Charge (SAC) recommending action. Form 9131 must be signed by the SAC. For sensitive investigations, as defined in IRM 9.4.1, Investigation Initiation, the written concurrence of the Chief, Criminal Investigation must be obtained.

(2) If this request contains any information governed by the grand jury secrecy provisions, the SA must stamp or print on the top right hand corner of Form 9131 the phrase: "Caution: This document contains secret grand jury information." The SA will also place a cover sheet over the request which states: "This report contains secret grand jury information."

(1) The SAC has the authority to directly refer matters involving 18 USC §1956 and §1957 and Title 31 to the attorney for the government, pursuant to IRS Delegation Order No. 9-2 (as revised). If the matter relates to a sensitive investigation, as defined in IRM 9.4.1, Investigation Initiation, the written concurrence of the Chief, Criminal Investigation must be obtained prior to referral.

(2) The procedures to follow for a non-tax related Title 18 and/or Title 31 grand jury request are as follows:

1. An IRS initiated request for a Title 18 and/or Title 31 (non-tax) grand jury investigation will be made by letter from the SAC to the attorney for the government. (This excludes a request for violation of 18 USC §1956(a)(1)(A)(ii) which is tax related, and for which the above procedures in subsection 9.5.2.3.1 et seq. must be followed).

2. The SAC will respond by letter to an attorney for the government seeking IRS participation in a Title 18 and/or Title 31 (non-tax) grand jury investigation.

3. This letter should specify the name and TIN of each subject, other investigating law enforcement agencies, types of non-tax charges involved, and years involved.

4. All correspondence with the attorney for the government will be placed in the administrative investigative file.

(3) If this request contains any information governed by the grand jury secrecy provisions, the SA must stamp or print on the top right hand corner of the letter the phrase: "Caution: This document contains secret grand jury information." The SA will also place a cover sheet over the request which states: "This report contains secret grand jury information."

(4) Potential violations of Title 26 by persons outside of a Title 18 and/or Title 31 grand jury investigation, discovered during a "pure" (non-tax) Title 18 and/or Title 31 investigation, must be segregated and investigated independently of the Title 18 and/or Title 31 grand jury investigation.

(5) Delegation Order No. 25-5 authorizes the SAC to initiate Title 31 investigations of financial institutions other than banks and brokers or dealers in securities; (and the Chief, CI, to approve Title 31 subject investigations of banks and brokers or dealers in securities), so that CI may either initiate or agree to participate in such a criminal investigation.

(1) In order to expand an existing tax and/or tax related grand jury investigation to include additional subject(s), tax period(s) or type(s) of tax, the attorney for the government must obtain DOJ, Tax Division approval.

(2) Department of Justice, Tax Division, Directive 86–59 permits the attorney for the government to expand an existing non-tax grand jury to include Title 26 offenses, (except where the grand jury proceedings involve a multi-jurisdictional investigation or involve targets considered to have national prominence, such as public officials, political candidates, members of the judiciary, religious or labor leaders, news media representatives, and major corporations and/or their officers). In order to meet the criteria for a direct referral of a grand jury request to the attorney for the government, subpoenas must have been served and/or some evidence must have been presented to the grand jury.

(3) Pursuant to Directive 86-59, the attorney for the government may designate the subject(s), scope of the inquiry, and the tax period(s) to be investigated. However, the approval of the DOJ, Tax Division, must be obtained before the issuing of an information or seeking the return of an indictment on tax and tax related matters.

(4) An attorney for the government seeking an expansion of either an existing tax, tax related or non-tax grand jury investigation should make a request in writing to the SAC. (See subsection 9.5.2.3.1.2).

(5) The SAC will place the written request from the attorney for the government in the administrative file and route a copy to a SSA for assignment to a SA.

(6) The special agent will then update Criminal Investigation Management Information System (CIMIS) and prepare a Form 9131, Request for Grand Jury Investigation, for the expansion request. In lieu of preparing the Form 9131, the expansion request can be transmitted with a SA's prosecution report.

(7) Under exigent circumstances, expansion requests may be approved by DOJ, Tax Division by telephone. However, written requests must already have been approved by the SAC before this procedure can be used.

(8) Within five workdays of a telephonic approval, the SAC will forward the written request to the approving DOJ, Tax Division official, together with the expansion memorandum containing an explanation of the exigent circumstances which warranted the telephonic procedure.

(1) A list of all IRS employees who are expected to have access to grand jury information (including CT Counsel) will be attached as an exhibit to Form 9131, Request for Grand Jury Investigation. The list will be titled "Grand Jury Access List", and will include the following statement immediately before the employee listing: "The following list contains the names and positions of all employees who have access to the grand jury information". The list will include the Chief, CI; Deputy Chief, CI; and Director, Operations Policy and Support.

(2) Thereafter, all persons who have access to the grand jury information, including telephonic access, must be made aware of the grand jury secrecy rules and must have their names added to the Grand Jury Access List.

(3) The employees listed on the initial Grand Jury Access List need not sign the list in order to have access to grand jury information. The SAC and Director, Field Operations will ensure that all employees under their control who have access to grand jury information are familiar with grand jury secrecy rules.

(4) The SSA may delegate the responsibility of maintaining the Grand Jury Access List to a special agent assigned to the grand jury investigation, but must ensure that the list is maintained timely and accurately. The SSA will provide the list to the attorney for the government.

(5) Form 9510, Grand Jury Access List (Collateral), will be included with all grand jury collateral requests that contain or will result in grand jury information. The SSA in the field office that initiates the grand jury collateral request may delegate the responsibility of issuing and maintaining the grand jury access list, Forms 9510, to an SA assigned to the grand jury investigation, but must ensure that all personnel who have access to grand jury information are listed on each Form 9510 are added to the Grand Jury Access List. The SAC of the field office that receives a grand jury collateral request will ensure the names and titles of all personnel in the field office having access to the grand jury information will sign Form 9510 are included in the reply. The SAC may delegate this responsibility to the SSA.

(1) When the Treasury Inspector General for Tax Administration (TIGTA) makes a request involving a matter investigated by a grand jury, CI will immediately allow them to review all information obtained prior to the grand jury referral and all information obtained during the investigation which are not matters occurring before the grand jury. Exhibit 9.5.2-1 contains listings of items that are generally classified as grand jury materials and non-grand jury materials. Criminal Investigation may consult CT Counsel if there is a question about classifying the information.

(2) Criminal Investigation will advise TIGTA if full disclosure cannot be made of all items in the file because certain items fall within the scope of Rule 6(e). Criminal Investigation will describe in general terms the nature of the items (e.g., a transcript of testimony).

(1) Grand jury information may not be used for civil purposes unless the IRS obtains the information independently of the grand jury or through a Rule 6(e) order.

(2) To prevent doubt about the origins of information available for civil use, the SSA should ensure the segregation of information prior to the receipt of any grand jury information and have such material clearly marked as non-grand jury. After the grand jury investigation begins, any information obtained independently of the grand jury should be kept separate and clearly identified as an independent source. The Grand Jury Guidelines included in Exhibit 9.5.2-1 may be used in the classification of information.

(3) Field personnel should consult CT Counsel when questions arise in the segregation process. The ultimate decision, however, to release evidence acquired during a grand jury investigation falls within the purview of the attorney for the government. Information deemed to be non-grand jury in nature should not be released unless the responsible DOJ attorney reviews the material and they authorize the release. The government attorney's approval should be documented in the respective case file.

(4) In general, IRS personnel who have received grand jury information subject to the secrecy provisions of Rule 6(e) will exclude themselves from involvement in non-grand jury matters concerning the individuals, entities, and subject matter of the grand jury information.

(5) The SAC and other CI managers may not use grand jury information to direct a non-grand jury investigation.

(1) A subpoena is a writ issued by the authority of the court ordering an individual to appear at a specified date, time, and place to testify or to give evidence, or both, in a matter pending before the court. Subpoena Duces Tecum is a command to a witness to testify and to produce at a trial, a deposition, or a hearing, documents or papers in his possession that are pertinent to the issues of a pending case. (See USCS FRCP R45 and R17.)

(2) IRS employees may not use Form 2039, Summons, under any circumstances in grand jury investigations.

(3) A subpoena may be issued for grand jury investigative purposes and trial proceedings.

(1) IRS procedures for non-custodial advice of rights do not apply to grand jury investigations. The attorney for the government will provide instructions for advising subjects of their rights.

(1) IRS employees may use their official IRS credentials for identification purposes. When exhibiting their credentials, they should advise those contacted that they are acting as assistants to the attorney for the government in conjunction with an investigation.

(1) Information provided to the grand jury by an informant is grand jury information and cannot be included in non-grand jury IRS files or disclosed to IRS personnel not assisting the grand jury.

(2) When the attorney for the government asks an IRS employee to direct the activities of an informant, the employee should follow the normal guidelines. The IRS should immediately report to the attorney for the government any violation of instructions or law by an informant. If the attorney for the government asks the IRS to make a payment to or on behalf of an informant, the SA should prepare Form 8561, Request for Confidential Funds. The request should state that it contains grand jury information. The names of the approving officials should be added to the Grand Jury Access List.

(1) For a collateral request that contains or will result in grand jury information, the SSA or an SA assigned to the grand jury investigation will obtain prior approval from the attorney for the government. The collateral request will state that the request is part of a grand jury investigation governed by the secrecy provisions of Rule 6(e). The replying field office will return the request and the information obtained with a transmittal memorandum that references Form 9510, Grand Jury Access List (Collateral) includes the name and title of all personnel with access to the grand jury information. Both the requesting and the replying field offices will follow the procedures set forth in subsection 9.5.2.4.1 paragraph (5) above, relating to the issuance of Form 9510. The replying field office should not keep copies of the transmittal, the request, or the attachments.

(1) SAs planning to use special investigative techniques such as monitoring or other investigative devices will follow the normal procedures. (See IRM 9.4.7, Consensual Monitoring) The offices of the approving officials will provide the names of individuals who had access to the grand jury information contained in the requests and the reports required for these investigative techniques. The SSA will add the names to the Grand Jury Access List.

(1) The attorney for the government will obtain approval for search warrants using DOJ and IRS procedures. (See IRM 9.4.9, Search Warrants, Evidence, and Chain of Custody).

(1) The attorney for the government must submit a written request to the IRS for an SA to travel to another country or to request information from a foreign country. (See IRM 9.11.2, Domestic and Foreign Travel).

(1) IRS employees may not prepare any information documents, such as Form 3949, Criminal Investigation Information Item, which contain grand jury information without a Rule 6(e) order.

(1) When a case has been referred for a grand jury investigation, CI will control all original tax returns and will establish transaction code (TC) 914 or TC 916 controls on all tax periods under grand jury investigation. The affected operating division(s) will transfer to CI all returns and administrative files for the periods under grand jury investigation.

(2) If returns for periods under grand jury investigation are located in other field offices, the other operating division with the returns will transfer the returns, together with all administrative files, to CI in the field offices where the grand jury is impaneled. The affected operating division will continue to control returns for any types of taxes and for any periods not being investigated by the grand jury.

(3) Transaction code 910 will be placed on all individuals and entities input into the Criminal Investigations Management Information System (CIMIS) as Associate Identities.

(1) If the tax returns under investigation were under the control of another operating division at the time CI's participation in the grand jury was authorized, the other operating division which transferred the returns to CI is responsible for the civil statute of limitations.

(2) If there has been no civil involvement before the start of a grand jury investigation and a Rule 6(e) order has not been obtained, CI is not responsible for the civil statute of limitations.

(1) When initiating a request for a grand jury investigation, the SA must determine if any civil action is being taken or planned. The special agent will complete and submit Form 14584, Check for and Suspend Civil Activity Notification, to the civil business operating divisions for deconfliction (see IRM 9.5.1.2.1(6), Procedures in Financial Investigations).

1. In accordance with Title 26 USC §6103(h)(1), the SA will advise IRS-Civil when CI refers any tax and tax related cases to the US Department of Justice for (FURTHER INVESTIGATION or PROSECUTION). The special agent will complete the Notice of Department of Justice Referral memorandum . The special agent will submit the memorandum to the field office designated Territory Managers (SB/SE Examination-Technical Services and SB/SE Collection Advisory); please follow the applicable field office procedures. In addition, this memorandum should also be forwarded to the following IRS-Civil functions:

IRS-Civil Business Unit	Electronic E-mailbox
Tax Exempt Government Entities (TEGE):	*TE/GE-EO-FIU
Abusive Transactions & Technical Issues (ATTI-LDC):	*SBSE LDC Notifications
Large Business & International (LB&I):	*LB&I CI Notifications
IRS SB/SE BSA (SB/SE BSA):	*SBSE BSA CI NOTIFICATION

(2) The affected other operating division must suspend all civil activity, or receive permission to initiate any action during the grand jury investigation under the policy statement set forth in P-4-26. The Territory Manager of the affected operating division will advise the SAC of a civil function's request to pursue any civil action.

(3) The SAC will discuss any proposed civil action with the attorney for the government. The attorney for the government will provide the SAC in writing with any reasons why a proposed civil action may jeopardize the criminal investigation.

(4) The SAC will weigh the proposed civil action against the criminal investigation and make a recommendation to the operating division Territory Manager without disclosing any grand jury information.

(5) In the event that the other operating division does not agree to suspend all civil activity, the procedures contained in P-4-26 should be followed.

(1) Tax information obtained under 26 USC §6103 for use in a tax or a non-tax Federal grand jury investigation generally may be disclosed to Federal officers and employees personally and directly engaged in the investigation. However, while 26 USC §6103 generally prohibits disclosure of tax information to state and local law enforcement personnel assisting the attorney for the government in such investigations, disclosures can be made in limited circumstances (see IRM 9.3.1, Disclosure).

(1) If an allegation or overture of bribery is made during a grand jury investigation, CI will inform TIGTA and give them the name of the attorney for the government assigned to the investigation. Criminal Investigation will not give TIGTA any other information during this initial report ( See IRM 9.5.12, Processing Completed Criminal Investigation Reports).

(1) The following subsections contain information relating to reports and closing procedures in grand jury investigations.