How IRS records self-authenticate as evidence under FRE 902 and the § 7514 seal

Plain-English summary

This Chief Counsel Advice is an internal legal analysis of how IRS documents
can be admitted into evidence without live testimony from a witness to
authenticate them. Under Federal Rule of Evidence 902, some documents are
"self-authenticating." The memo walks through two routes: Rule 902(11), which
covers certified business records and requires a sworn declaration meeting Rule
803(6) plus advance written notice to the opposing party, and Rule 902(1),
which covers sealed and signed domestic public documents. It explains that
Internal Revenue Code § 7514 authorizes the Secretary of the Treasury to
prescribe official IRS seals (implemented at 26 C.F.R. § 301.7514-1), and that
courts take judicial notice of such seals, so a document bearing a proper IRS
seal and attesting signature can qualify as self-authenticating under Rule
902(1). The advice gives litigating attorneys the framework for getting IRS
records admitted; it makes no ruling on any taxpayer's liability.

Ruling snapshot

• Question: How can IRS documents be made self-authenticating under FRE
  902(1) and 902(11), and what is the role of the § 7514 seal?
• Outcome: Advice given (no ruling on any taxpayer)
• Key authorities: IRC § 7514; 26 C.F.R. § 301.7514-1; Fed. R. Evid.
  902(1), 902(11), 803(6); 28 U.S.C. § 1746

Full text (IRS public release)

ID:      CCA_2018121413453549
UILC:    7514.00-00

Number: 201908020
Release Date: 2/22/2019
From:
Sent: Friday, December 14, 2018 1:45:35 PM
To:
Cc:
Bcc:
Subject: FW: Disclosure seals and sample document - P&A Review Requested


Hi, Beth. Please find my analysis below. Let me know if you have any questions.


           FRE 902 provides for evidence that is self-authenticating and require no extrinsic
evidence of authenticity to be admitted. 902(1) requires documents to contain a “seal.” 902(11)
requires documents to be “certified.”




The Proposed 902(11) Seal.

FRE 902(11) provides that “Certified Domestic Records of a Regularly Conducted Activity” are
self-authenticating. 902(11) requires that the document meet the requirements of FRE 803(6)(A)-
(C).
            902(11) also requires that “[b]efore the trial . . . the proponent must give an adverse
party reasonable written notice of the intent to offer the record—and must make the record and
certification available for inspection—so that the party has a fair opportunity to challenge them.”
FRE 902(11). “The notice requirement in Rule[] 902(11) . . . is intended to give the opponent of
the evidence a full opportunity to test the adequacy of the foundation set forth in the
declaration.” 2000 Amendments Advisory Committee Notes Rule 902(11). Advance notice to
the other party permits the evidence to be admitted without testimony of a foundation witness
similar to the procedure in 18 U.S.C. § 3505. See Advisory Committee Notes 2000 Amendments
902(11); Advisory Committee Notes 2000 Amendments 803(6). 18 U.S.C. § 3505(b) requires a
party intending to offer evidence without a foundation witness provide written notice to the
opposing party “at the arraignment or as soon after the arraignment as practicable . . . .”
Consequently, advance notice to opposing counsel is required for evidence to be self-
authenticated pursuant to 902(11).




                           To conform with the requirements of 902(11), a declaration or
affidavit is required when asserting the documents in question meet the requirements of FRE
803(6)(A)-(C).

The Advisory Committee Notes for 902(11) indicates that a declaration “that satisfies 28 U.S.C.
§ 1746 would satisfy the declaration requirement of Rule 902(11), as would any comparable
certification under oath.” 28 U.S.C. § 1746 lays out the following form for documents executed
within the United States: “I declare (or certify, verify, or state) under penalty of perjury that the
foregoing is true and correct. Executed on (date). (Signature).”




The Proposed 902(1) Seal

FRE 902(1) provides that “Domestic Public Documents that are Sealed and Signed” are self-
authenticating if the document bears a seal of an agency of the United States and a signature of
attestation.
                    Note to Paragraph 1 of the 1972 Proposed Rules for 902 indicates 902(1) is
“of broad application.” A seal is permissible under 902(1)(A) if the seal “purport[s] to be that of
the United States” or a political subdivision or agency thereof. However, the Advisory
Committee Notes of 1972 for the Proposed Rule 902(1)(A) does reference “more than 50
provisions for judicial notice of official seals” in the United States Code. Judicial notice shall be
taken of any seal prescribed under § 7514 which authorizes the Secretary of the Treasury to
prescribe or modify seals of office for the district directors of internal revenue. 26 C.F.R. §
301.7514-1 provides the seals prescribed by the Secretary of Treasury pursuant to I.R.C. § 7514.
FRE 902(1)(A) does not require the seal to be statutorily adopted to qualify as a valid seal.