                                                             M ay 2, 1977


77-23     MEMORANDUM OPINION FOR THE
          ACTING COMMISSIONER OF THE
          INTERNAL REVENUE SERVICE

          Congressional Access to Tax Returns—26 U.S.C.
          § 6103(f)


   This is in response to your Agency’s request for our interpretation of
§ 6103(0 ° f the Internal Revenue Code of 1954, as amended, 26 U.S.C.
§ 6103(f). This section, by reason of § 1202(a) of the Tax Reform Act of
1976, now deals with the question of congressional access to Federal
tax returns and tax return information. We believe that we can best
respond to this inquiry by addressing the three major issues presented
by the request. These issues are: (1) whether, and under what authority,
a subcommittee might inspect returns and return information; (2)
whether a subcommittee, acting pursuant to a delegation of authority
from the committee chairman, might request returns or return informa­
tion directly from the Internal Revenue Service (IRS); and (3) whether
a subcommittee, acting pursuant to a request from the committee chair­
man to the IRS, might obtain returns or return information directly
from the IRS. For the reasons that follow, it is our conclusion that
subcommittees may inspect Federal tax returns and return information,
but only upon a request to the IRS by the chairman of the pertinent
committee, which request specifies at least the particular line of inquiry
to which the information must relate.

    I.   Inspection by Subcommittees
   We shall first discuss the issue of a subcommittee’s inspection of
Federal tax returns and return information. The two provisions of
§ 6103(f) pertinent to this issue provide:
    Upon written request from the chairman of the Committee on
    Ways and Means of the House of Representatives, the chairman o f
    the Committee on Finance of the Senate, or the chairman of the
    Joint Committee on Taxation, the Secretary shall furnish such
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     committee with any return or return information specified in such
     request . . . 26 U.S.C. § 6103(0(1).
       Any committee described in paragraph (1) or the Chief of Staff of
       the Joint Committee on Taxation shall have the authority, acting
       directly, or by or through such examiners or agents as the chair­
       man of such committee or such chief o f staff may designate or
       appoint, to inspect returns and return information at such time and
       in such manner as may be determined by such chairman or chief of
      staff 26 U.S.C. § 6103(0(4)(A).
 It is apparent at once that subcommittees are not explicitly authorized
in either of these provisions to inspect tax returns or return information.
 Because disclosure of tax records is prohibited “except as authorized by
this title,” 26 U.S.C. § 6103(a), it might be thought that there is no basis
in the statute for allowing subcommittees access to such records.
    Even though we are mindful that the application penalties warrant a
cautious interpretation of the statute, see 18 U.S.C. § 1905, 26 U.S.C.
§§ 7213, 7217, we think that the statute, considered as a whole, shows
that Congress meant for subcommittees to be able to inspect tax returns
and return information. We cannot imagine that Congress intended to
prohibit disclosure to the subcommittees, and yet at the same time
allow inspection by both the members o f the subcommittees as members
of the committee and by members of the subcommittees’ staffs—or even
to those further removed from the daily work of Congress—as
“agents.” The purposes underlying § 6103 do not require, and would
even refute, such a proposition. While Congress was concerned about
the citizens’ right to privacy, it was also concerned about the Govern­
ment’s need for the tax information, see S. Rep. No. 938 (Part I), 94th
Cong., 2d Sess. 318 (1976), and was very much aware of its own needs
in this regard. Id. at 319-320. In this light, we do not think it a
reasonable assessment of Congress’ intent to say that the subcommit­
tees—which do much of the Congress’ work—cannot inspect the mate­
rials necessary to their functions.
   Although the statutory text does not mention subcommittees, ii none­
theless offers strong support for our conclusion here. Under the prior
law, the subcommittees of the House Ways and Means Committee and
the Senate Finance Committee had requested, and received, access to
returns and return information held by the IRS. The language of the
prior law under which such access was authorized—/.a, “the Secretary
. . . shall furnish such committee” and “any such committee shall have
the right, acting directly as a committee, or by or through . . . examin­
ers or agents . . . to inspect any or all o f the return”—has been largely
retained in the new provisions. See 26 U.S.C. § 6103(0(1) and (4)(A).
This reenactment o f the prior provisions would suggest that the law
was to remain the same and that the interpretation thereof—displayed
by those subcommittees most closely associated with the tax laws—
should continue.
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    We thus come to the question of how subcommittees are to fit within
 the statutory structure—i.e„ whether they should be regarded as “com ­
 mittees” or as “agents” of the committees. We would note at the outset
 that, under the provisions relevant here, it does not appear to be a
 matter of great importance whether a subcommittee is found to satisfy
 one term or the other; both a committee and its agents are to proceed
 “at such time and in such manner as may be determined by such
 chairman . . .” 26 U.S.C. § 6103(f)(4)(A). Nevertheless, it is our view
 that subcommittees are best regarded as “agents” within the meaning of
 the statute. Although neither the statute nor its legislative history offer
 much guidance on this issue, we think this result most naturally follows
 from the statutory language. While the term “committee’ may be given
a broad reading if the congressional purpose warrants it, see, e.g.,
Barenblatt v. United States, 240 F. 2d 875, 878 (D.C. Cir. 1957), vacated
on other grounds, 354 U.S. 930 (1957), a ffd on rehearing, 252 F. 2d 129
(1958), affd, 360 U.S. 109 (1959), its usage here is with reference to
specifically named full committees. Rather than contort the statutory
language so that it would encompass an entity normally thought to be
apart from the full committee, we prefer to view the subcommittee as
coming within the term “agents.” While this terminology was most
probably designed with staff personnel in mind, it is certainly broad
enough to encompass subcommittees whose function is to act on behalf
of the full committee.
   The final question that remains to be considered is whether the
subcommittee may inspect tax returns and return information directly,
or whether such materials must be first handed over to the full commit­
tee. Although the statute refers to the Secretary’s furnishing such infor­
mation to the committee, 26 U.S.C. §6103(0(1), we believe that direct
access is permissible here. The subcommittees are themselves permitted
to inspect this information, and it seems wasteful to interject a require­
ment that such access is allowed only after it goes to the full commit­
tee. Moreover, the provision providing for inspection o f returns by
agents “at such time and in such manner as may be determined by such
chairman,” 26 U.S.C. § 6103(0(4)(A), seems broad enough to permit the
chairman to decide to allow an immediate inspection by the subcommit­
tee.

   II.   Disclosure by Way of Delegated Authority
   The second issue to be addressed is whether delegated authority
under the rules of the pertinent committees is sufficient to permit a
subcommittee to initiate a request for returns or return information. As
we understand it, both from your letter and our conversations with
members of the congressional staffs, the old law had been interpreted to
allow subcommittees acting under a delegation of authority to request
such material directly from the IRS. We do not believe, however, that
this practice can continue under the present law. Section 6103(0(1)
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 provides that the Secretary shall furnish the tax information “upon
 written request from the chairman o f the Committee on Ways and
 Means of the House of Representatives [or] the chairman of the Com­
 mittee on Finance of the Senate . . .      The lack of grant of authority
 to the chairmen o f the subcommittees, when considered in light of the
 general approach that “returns and return information shall be confi­
 dential” and should not be disclosed “except as authorized by this
 title,” 26 U.S.C. § 6103(a), would indicate that they are not authorized
 to make requests for tax records.
    O f course, as with the problem of subcommittee inspection, the lack
 of a specific grant of authority to the subcommittee chairmen need not
be determinative. Other factors relevant here— e.g., legislative history,
indications in other parts o f the statute, or even other provisions of
law—could give rise to a conclusion that Congress intended to permit a
delegation of authority. However, we do not believe that such factors
lead to such a result here; rather, it is our conclusion that all such
indicia are to the contrary.
    Nothing in the provisions authorizing disclosure of tax information to
Congress would appear to impliedly authorize a delegation of authority
here. The other provisions that authorize congressional access to tax
information do so only upon the written request o f a specifically desig­
nated person—i.e., the Chief of Staff o f the Joint Committee on Tax­
ation, or the chairman of a nontaxwriting committee that is authorized
by the Senate or House to inspect tax information. See 26 U.S.C.
§ 6103(f) (2) and (3). The designation o f a specific high-ranking person
in each instance would suggest an intent on the part of Congress that,
even among those in Congress who were authorized to inspect such
material upon disclosure, only a few—those in overall charge of a
particular committee’s operations—could actually initiate a request for
disclosure.
    O ther parts of § 6103 reinforce this conclusion. The statute in many
instances requires that disclosure to other parts o f the Government be
made upon the written request of the highest-ranking official in the
particular office making the request. F o r example, the President himself
must sign a request for a tax return to be made available to the White




                                   88
House, 26 U.S.C. § 6103(g)(1);1 similarly, the heads of various State or
Federal agencies appear to be required to sign requests before disclo­
sure can be made to those agencies. See, e.g., 26 U.S.C. §§ 6103(j)(l)
and (2), 6103(k)(5), 6103(1)(5).2 The apparent purpose underlying such
requirements would be that, in order to ensure that disclosure is w ar­
ranted, the highest-ranking official of a particular governmental unit
would have to pass upon and approve any request for disclosure. This
purpose would be no less forceful with respect to Congress, and the
fact that the provisions applicable to Congress adhere to the approach
of specifically designating a high-level official would suggest an intent
to adopt the same means—i.e., personal authorization—in achieving the
overall goal.
   This point is highlighted by the fact that, when Congress deemed it
necessary to allow for a subordinate official’s authorization, it did so
explicitly. For example, various provisions allow subordinate D epart­
ment of Justice officials to request disclosure, see 26 U.S.C.
§§ 6103(h)(3)(B), 6103(i)(l)(B); the same is true with regard to other
departments. See, e.g., 26 U.S.C. §6103(j)(3) (relating to subordinate
officials of the Department of the Treasury). The existence of such
provisions demonstrates that the need for allowing subordinates’ author­
ization of disclosure was considered, and passed upon by Congress; the
fact that no such authorization was provided the chairmen o f subcom­
mittees must indicate that it was not intended that they have such
authority. C f, Cudahy Packing Co. v. Holland, 315 U.S. 357, 365-66
(1942).
  The legislative history is not very informative on this question. The
legislative reports, in addressing this issue, simply state that the commit­
tees will have access to tax information “upon written request of their

    1T h e fact that the statute requires the President to “ personally” sign such requests does
not, in our view , imply that such authority can be delegated in the absence of such a
requirem ent. T his requirem ent was first adopted in E xecutive O rder No. 11805, 3 C F R
896 (1971-75 com pilation); the legislative history o f the statute makes clear th at the
statute was largely designed to codify the provisions o f the E xecutive order. See S. Rep.
No. 938 (Part I), supra at 322 M oreover, in view o f the broad pow ers o f delegation
conferred on the President by other provisions o f law, see 3 U.S.C. §§ 301-302, such
term inology was necessary to ensure that the President him self sign the pertinent re­
quests. In light o f these considerations, w e do not believe the absence o f such an explicit
requirem ent w ith respect to the com m ittee chairm en can be taken as an indication that
C ongress did not intended to require them to sign requests for disclosure. Indeed, the fact
that the President him self must sign such requests w ould suggest that a similar require­
m ent w ould attach to all officials w ho w ere specifically designated to sign w ritten
requests.
   2 It seems clear that agency heads are required by the statute personally to sign requests
for disclosure. Previously, T reasury regulations had allow ed for disclosure upon the
w ritten request or notice by the heads of various agencies, see, e.g., 26 C F R
§ 301.6103(a)— 102, 103, and 104 (1975). This requirem ent had been interpreted to require
that the head o f the departm ent actually sign the request, see Hearings on Federal Tax
R eturn Privacy before the Subcom m ittee on A dm inistration o f the Internal R evenue
C ode o f the Senate C om m ittee on Finance, 47-48 (1975). T he present law, by enacting in
m any instances language similar to that used in the regulations, presum ably did so in light
o f this interpretation—particularly in view o f the fact that the underlying purpose w as to
tighten up on the disclosure o f tax records.

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 respective chairmen.” H.R. Rep. No. 1515, 94th Cong., 2d Sess. 476
 (1976); see also S. Rep. No. 938 (Part I), supra at 320. This statement, by
 itself, is not particularly helpful, since it merely restates the language
 that is at issue here. It does serve, however, to rebut the proposition
 that Congress meant to allow for more persons to authorize disclosure
 than it provided for in the statute itself. The absence o f any other
 references to the question of delegation in the legislative materials is
 even more telling. It seems to us most unreasonable to assess congres­
 sional intent as allowing for delegation where, in a statute meant to
 restrict even congressional access, see S. Rep. No. 938 (Part I), supra at
 319-20, Congress clearly did not provide for delegation in the statute
 and said nothing on the m atter in the legislative record.
    O f course, if there had previously existed a provision explicitly al­
 lowing for a broad delegation of the chairmen’s authority, it could
 perhaps be said that the present legislation contemplated that such a
 provision would be applicable here. However, our research has uncov­
 ered no such general authority. To the contrary, it appears that, in
 matters akin to the one at issue, Congress’ practice is to provide
specifically for a delegation where it wishes to allow for one. For
example, in legislation providing for congressional subpoenas, the stat­
 utes often provide explicitly that the subpoenas may be signed by either
the chairman or another member designated by him or the pertinent
committee, see, e.g., 2 U.S.C. §§413, 473(d). In contrast, other provi­
sions lack such an authorization of delegation and allow only specifical­
ly named persons to sign subpoenas. See, e.g., 26 U.S.C. § 8021(b)(2). It
is evident that Congress chose to adopt this latter approach with
respect to committee access to tax records; we thus do not believe it
appropriate here to allow for a delegation where Congress itself, in
contrast to the pattern adopted in other instances, has not seen fit to
provide one.
   T he fact that it was the past practice of the committees involved to
delegate authority to subcommittees to request information directly
from the IRS is not enough, in and of itself, to justify continuing such a
practice under the new law. The statute here was designed to tighten
the rules for disclosure, and a reference to past practice therefore
provides little in the way o f guidance under the new law. While we
have relied on past practices in determining that subcommittees were to
continue to have access to tax returns and return information, our
rationale for doing so was that such practices reflected Congress’ inter­
pretation of language carried over into the present statute. In contrast,
the language relating to requests by Congress for tax information has
been changed, and thus past practice is of little help in determining
Congress’ view o f the present wording.
   It has been suggested by members of congressional staffs that the
statutory language allowing examiners and agents “to inspect returns
and return information at such time and in such manner as may be
                                    90
   determined by such chairman” might allow delegation of authority
   here. It seems to us, however, that this provision relates to the persons
   to whom tax information might be disclosed, and does not address the
   question of which persons might request disclosure from the IRS. This
   latter issue is specifically dealt with by other language in the statute,
   and to give the above-quoted language its suggested broad sweep
   would simply disregard that more specific language.
      We recognize that subcommittees of the Senate Finance Committee
   and the House Ways and Means Committee are authorized to “require
   by subpoena or otherwise . . . the production of such correspondence,
   books, papers, and documents . . . as it deems advisable.” 2 U.S.C.
   § 190b(a). See also House Rule XI(m)(l)(B). While this provision could
   obviously be read to encompass tax records, we believe that Section
   6103, both in its terminology—“upon written request from the chair­
   man”—and in its evident purpose to restrict even congressional access
   to tax information, necessarily delimits the grant of authority specified
   in these provisions insofar as tax records are concerned.

     III.   Disclosure by Way of a Chairman’s Request to the IRS
      Your letter further inquires whether the chairman of a committee
   might request the IRS to furnish the subcommittee such returns or
   return information as the subcommittee might request. There are two
   different situations where this problem might develop; the first is where
, a chairman would make one “blanket” request that the IRS thereafter
   comply with any request on any matter made by the subcommittee. We
   do not believe that either the language of the statute, or the purpose
   underlying it, would allow for such an approach. Section 6103(0(1)
   provides for the disclosure of “any return or return information speci­
  fied in such request.” [Emphasis added.] This would appear to require
  that the request of the chairman mention or name in a specific or
  explicit manner the information sought. A request by a chairman that
  the IRS comply with a certain subcommittee’s subsequent requests
   would not, in our view, meet this requirement; while the chairman
  could perhaps be said to have “specified” that certain information—Le.,
  that requested by the subcommittee—be furnished, he has hardly identi­
   fied that information precisely or in detail. A more important factor
  here, however, is that such a request by the chairman would depart
  from Congress’ apparent purpose of having the chairman pass upon
  each request and, in effect, would amount to a delegation o f authority
  to the subcommittee to proceed on its own. We have in the discussion
  set forth above concluded that this is not within Congress’ intent, and
  as such do not believe that it can be accomplished under the form of
  such a “request” to the IRS.
      The chairman could, however, at times make a more limited request
  that the IRS furnish a subcommittee with materials pertinent to a
  particularized inquiry; we believe that this would be permissible under
                                      91
the statute. A request for materials relating to a particular line of
inquiry seems to us to comport sufficiently with the statutory require­
ment that requested information be “specified.” While the chairman
may not know at the time o f the request the exact information sought,
he will be informed of the general nature of the information to be
requested and the reasons for doing so—thereby fulfilling, in our view,
the purposes served by the requirement of personal approval.
   The purposes of the statute also support this approach in a broader
sense. As a practical matter, it is necessary to proceed in this manner if
subcommittees are to function effectively; the need for certain informa­
tion may not become apparent until a subcommittee’s hearings have
already begun, and it is simply not practical to have the chairman sign
a request for information each time this occurs. As we discussed above,
the general thrust o f the statute is to reconcile the need for confidential­
ity of tax returns with the need for disclosure to further the Govern­
m ent’s work. A determination here that would effectively curtail the
subcommittee’s work would not comport with this overall goal; rather,
we think the underlying aim of a balance is achieved by requiring the
chairman to pass upon the subcommittee’s requests, and yet allowing
those requests to specify information relating to a particular line of
inquiry rather than setting forth exactly the returns and return informa­
tion sought.
                                Conclusion
   We conclude that subcommittees are entitled to inspection of tax
returns and return information directly, provided that the committee
chairman’s request for such information specifies at least what line of
inquiry the information is to relate to. A delegation of authority from
the chairman to the subcommittee, or a “blanket” request from the
chairman to the IRS, is not sufficient under the statute to allow the
subcommittees access to the relevant materials.
                                             John   M.   H   armon
                                   Acting Assistant Attorney General
                                                  Office o f Legal Counsel




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