25.5.1  Introduction

Manual Transmittal

October 28, 2011

Purpose

(1) This transmits a revision to IRM 25.5.1 Introduction

Material Changes

(1) 25.5.1.3.3(2) provides that electronic signatures are permitted on summons documents.

(2) 25.5.1.4.1(1) adds a note highlighting when the Right to Financial Privacy Act (RFPA) applies.

(3) 25.5.1.5, Description of Summons (Form 2039), has been moved to IRM 25.5.2.

(4) Exhibit 25.5.1-1, General Instructions for Preparation of A Summons, has been moved to IRM 25.5.2 as Exhibit 25-5-2-1.

(5) Editorial updates made throughout, including updating all references with hypertext links.

Effect on Other Documents

This IRM supersedes IRM 25.5.1 dated October 31, 2006.

Audience

All operating Divisions and Functions.

Effective Date

(10-28-2011)

Signed by Scott Reisher
Director, Collection Policy

25.5.1.1  (04-30-1999)
Overview

  1. The Summons Handbook provides guidelines for use by Collection, Criminal Investigation, Examination, and Tax Exempt/Government Entities (TE/GE) employees. Specific function-directed guidelines are covered where appropriate.

  2. This section contains the following topics:

    • Provisions of law

    • Authority

    • Factors to consider

25.5.1.2  (10-28-2011)
Provisions of Law

  1. The provisions of the law for using and enforcing a summons are contained in the following sections of the Internal Revenue Code:

    1. IRC 7602, Examination of Books and Witnesses

    2. IRC 7603, Service of Summons

    3. IRC 7604, Enforcement of Summons

    4. IRC 7605, Time and Place of Examination

    5. IRC 7609, Special Procedures for Third-Party Summonses

    6. IRC 7610, Fees and Costs for Witnesses

    7. IRC 7612, Special Procedures for Summonses for Computer Software

    8. IRC 7622 , Authority to Administer Oaths and Certify

    9. IRC 7402, Jurisdiction of District Courts

    10. IRC 7210, Failure to Obey Summons

    11. IRC 6420(e)(2) , IRC 6421(g)(2) and IRC 6427(j)(2) (generally pertaining to the taxability of gasoline and fuel sales)

    12. IRC 6503(j) Designated and Related Summons

25.5.1.3  (10-28-2011)
Authority

  1. The Commissioner's authority to take any and all actions related to a summons derives from the Internal Revenue Code sections listed above in IRM 25.5.1.2 and from Treasury Order No. 150–10. However, the authority of specific IRS officers and employees to issue a summons or take any other action related to a summons is strictly defined and restricted by Deleg. Order No. 25-1 (as revised 10-12-2010), as set forth in IRM 1.2.52.2. Before taking any action relating to a summons, the Service employee should check Deleg. Order No. 25-1 to insure that he or she has the necessary authority. The following paragraphs describe many of the authorized actions set forth in Deleg. Order No. 25-1 and list many (but not all) of the IRS officers and employees authorized to take these actions. The purpose of these paragraphs is not to provide an exhaustive description of Deleg. Order No. 25-1, but rather to identify the actions most commonly associated with summonses and the IRS officers or employees who are authorized to take those actions.

25.5.1.3.1  (10-28-2011)
Authority to Issue "John Doe" Summonses

  1. A John Doe summons is one issued to obtain the identity of the taxpayer or group of taxpayers being investigated. They are used only when the proper name of the taxpayer is unknown and not readily available from other sources. The authority to issue a John Doe summons is strictly limited by Deleg. Order No. 25-1. Only certain high-ranking executives have the authority to issue a John Doe summons. Those executives include the following:

    1. Directors of Field Operations for SBSE, LB&I, CI and W&I

    2. Territory Managers for LB&I and SBSE

    3. Field Operations Managers and Area Managers for Federal, State and Local Governments functions, and Indian Tribal Governments functions in TEGE.

    Note:

    Special Agents, Revenue Agents, and Revenue Officers do not have this authority.

25.5.1.3.2  (10-31-2006)
Authority to Issue Summonses Except "John Doe" Summonses

  1. The following IRS officers and employees have the authority to issue any summons other than a John Doe summons:

    1. Special Agents and Special Agents in Charge

    2. Team Managers and Group Managers responsible for Examination, Collection and /or Compliance, EP/EO and Government Entities matters.

  2. These officers and employees also have the authority to serve and enforce summonses, to set the time and place for appearance, to take the summoned person's testimony under oath, to receive and examine data produced in compliance with the summons, and to perform other related duties described in sections IRC 7609(g) and (i)(2) .

25.5.1.3.3  (10-28-2011)
Authority to Issue Summonses Requiring Approval (Except "John Doe" Summonses)

  1. The following officers and employees have the authority to issue summonses to the taxpayers being investigated. These officers and employees also have the authority to issue summonses to third-party witnesses but only when the employee's manager, or any supervisory official above that level, has given prior approval.

    1. Internal Revenue Agents

    2. Estate Tax Attorneys

    3. Estate Tax Examiners

    4. Revenue Service and Assistant Revenue Service Representatives

    5. Tax Auditors

    6. Revenue Officers, GS–9 and above

    7. Tax Law Specialists

    8. Compliance Officers

    9. Tax Resolution Representatives

    10. Property Appraisal and Liquidation Specialists GS-12 and above

    11. Bankruptcy Specialists GS-09 and above (only for TFRP determinations)

  2. To approve the issuance of a third-party summons, the supervisor must sign the summons as the approving officer. (Official electronic signatures are permitted.) Alternatively, the issuing employee may write and sign a statement on the summons indicating that he or she had prior authorization to issue the summons and identifying the name and title of the approving supervisor and the date of the approval. This statement may be written manually or electronically in the 'Signature of Approving Officer' blank space on the front of the original summons and all copies.

  3. The officers and employees listed above in (1) a - j are also authorized to perform all other acts listed above in IRM 25.5.1.3.2 (2).

25.5.1.3.4  (10-28-2011)
Authority to Serve Summonses

  1. The following officers or employees have the authority to serve summonses:

    1. Revenue Agents

    2. Revenue Officers

    3. Estate Tax Attorneys and Estate Tax Examiners

    4. Revenue Service and Assistant Revenue Service Representatives

    5. Tax Auditors

    6. Tax Law Specialists

    7. Compliance Officers

    8. Tax Resolution Representatives

    9. Tax Examiners, GS-5 and above (whose duties include contacting taxpayers in person)

    10. Revenue Officer Aides, GS-5 and above

    11. Tax Fraud Investigative Aides, GS-5 and above

    12. Personnel Security Officers

    13. Property Appraisal and Liquidation Specialists

    14. Bankruptcy Specialists GS-05 and above

    (The foregoing list sets forth those officers and employees who usually serve summonses. For a list of other persons having this delegated authority, see Deleg. Order No. 25-1.)

25.5.1.3.5  (10-28-2011)
Authority to Designate the Persons Who May Receive Summoned Testimony and Information

  1. The following officers or employees are authorized to designate certain other employees as the individuals who will set the time and place of examination, receive and examine summoned information and take the summoned person's testimony under oath. The persons authorized to designate are:

    1. All persons listed in IRM 25.5.1.3.1 as being authorized to issue a John Doe summons,

    2. All persons listed in IRM 25.5.1.3.2 as being authorized to issue any summons other than a John Doe summons,

    3. All persons listed in IRM 25.5.1.3.3 as being authorized to issue summonses to taxpayers being investigated and issue summonses to third-party witnesses but only with supervisory approval.

      Note:

      This authority may be re-delegated to other officers and employees within the limits established in Deleg. Order No. 25-1.

  2. The persons who may be designated to set the time and place of examination, to receive and examine summoned information, and to take the summoned persons' testimony under oath are as follows:

    1. Chief Counsel Attorneys,

    2. Special Agents,

    3. Case Managers,

    4. Group Managers,

    5. Internal Revenue Agents,

    6. Estate Tax Attorneys,

    7. Estate Tax Law Clerks,

    8. Estate Tax Examiners,

    9. Revenue Service and Assistant Revenue Service Representatives,

    10. Tax Auditors,

    11. Revenue Officers,

    12. Compliance Officers,

    13. Tax Examiners whose duties include contacting taxpayers in person,

    14. Tax Law Specialists,

    15. Service Center Tax Examiners in the correspondence examination function.

    16. Bankruptcy Specialists GS-09 and above (only for TFRP determinations).

25.5.1.3.6  (10-28-2011)
Authority to Administer Oaths and Certifications

  1. The following officers or employees are authorized to administer oaths and affirmations and to certify to those papers when necessary except that the authority to certify shall not apply to papers or documents whose certification is authorized by separate order or directive:

    1. All persons listed in IRM 25.5.1.3.1 as being authorized to issue a John Doe summons,

    2. All persons listed in IRM 25.5.1.3.2 as being authorized to issue any summons other than a John Doe summons,

    3. All persons listed in IRM 25.5.1.3.3 as being authorized to issue summonses to taxpayers being investigated and to issue summonses to third-party witnesses but only with supervisory approval.

      Note:

      Tax Examiners and Tax Fraud Investigative Aides are not authorized to administer oaths or to certify papers or documents, except they may certify the method and manner of giving notice after serving a summons.

25.5.1.4  (10-28-2011)
Factors to Consider Before Issuing a Summons

  1. Attempt to obtain information voluntarily from taxpayers and witnesses prior to issuing a summons. Consent may be obtained voluntarily by acquainting the taxpayer or witness with the provisions of the Internal Revenue Code. See the reverse side of Form 2039 -A, Part A.

  2. Consider all relevant circumstances before issuing a summons. Analyze each situation in the light of its particular facts. Weigh the importance of the desired information against the following:

    1. Tax liability involved

    2. Time and expense of obtaining the records

    3. Probability of having to institute court action

    4. Adverse effect on voluntary compliance by others if the enforcement efforts are not successful

    5. The status of the case with respect to any pending criminal investigations..

  3. Additionally, consider serving a summons in the following situations:

    1. No records are made available to permit an adequate examination within a reasonable period of time.

    2. Submitted records are known or suspected to be incomplete. Additional records are presumed to be in the possession of the taxpayer or a third party that may disclose material matters not reflected in the submitted records (i.e. broker statements, contracts, and bills for legal expenses).

    3. Taxpayers or taxpayers’ representatives will not seriously attempt to provide documentation for substantiation to the examiner because they intend to offer records and explanations at another level or after a notice of deficiency has been issued.

    4. The existence and location of records are in doubt. A summons may be issued to require testimony, under oath, as to what records exist and the location of such records. A subsequent summons may be issued describing the records. If the records are in the possession or custody or subject to the control of the person who has testified, it may be served at the time of the testimony or thereafter.

25.5.1.4.1  (10-28-2011)
Documents from Financial Institutions in the Tenth Circuit

  1. As indicated in IRM 25.5.1.4(1), Service employees should attempt to obtain information informally from third-party sources. If the third party voluntarily provides the information, the Service need not follow formal summons procedures. This approach also applies when seeking financial records from financial institutions, except in cases governed by the Tenth Circuit’s interpretation of the Right to Financial Privacy Act (RFPA). In general, the RFPA requires that account owners be given notice of (and an opportunity to challenge) a government agency’s intent to obtain records of their finances from a financial institution. However, the RFPA also provides an exception to these requirements as they apply to the Service. Specifically, section 12 USC § 3413(c) states: "Nothing in [the RFPA] prohibits the disclosure of financial records in accordance with procedures authorized by the [IRC]." In all circuits other than the Tenth, the Service takes the position that an informal request for records is a procedure authorized under IRC 7602. The Tenth Circuit reached the opposite conclusion in Neece v. Internal Revenue Service, 922 F.2d 572 (10th Cir. 1990) and ruled that a bank’s voluntary disclosure of a customer’s financial records to the Service, without prior notice to the customer, violated the RFPA. The Tenth Circuit reasoned that IRC 7609, not section 7602, contained the procedures for obtaining records concerning a taxpayer from a financial institution. See IRM 25.5.1.4.1(6) below for a discussion of IRC 7609(j), enacted in RRA 1998, as it affects this reasoning.

    Note:

    However, the RFPA only applies to a financial institution’s records for customers who are individuals or are partnerships of five or fewer individuals, so financial records of customers who are corporations, partnerships with non-individual partners, or partnerships with six or more partners are not covered by the RFPA, 12 USC §§ 3401(4) & (5), and may be sought informally within the Tenth Circuit.

  2. The Tenth Circuit states are Kansas, Oklahoma, Wyoming, Utah, Colorado, and New Mexico.

  3. When issuing a summons, follow the procedures of IRC 7609 (if applicable), and refrain from seeking financial information from financial institutions by using only credentials, letters of circularization (for example: Letter 1040 (DO), Letter 1029 (DO), and Letter LP62(ACS)) or any other nonsummons method if the following conditions exist:

    1. the financial institution is located in the Tenth Circuit;

    2. the information sought concerns taxpayers residing in the Tenth Circuit, regardless of the location of the financial institution; or

    3. the Internal Revenue Service office is located in the Tenth Circuit, regardless of the location of the financial institution or the residence of the taxpayer.

  4. Seek the advice of Associate Area Counsel if there is any doubt as to whether Neece applies.

  5. Do not attempt to obtain financial information voluntarily from financial institutions if the above conditions exist. To do otherwise could result in actual and punitive damages awarded in suits against the Service, and the expenditure of valuable resources in defending such damage suits.

  6. In RRA 1998, Congress enacted IRC 7609 (j), which provides that nothing in IRC 7609 shall be construed to limit the Service’s ability to obtain information, other than by summons, through formal or informal procedures authorized by IRC 7601 and IRC 7602. This section indicates that the Service’s ability to informally seek the voluntary exchange of records, i.e., without a summons, constitutes a procedure authorized by the Code. Nevertheless, the Service will follow the Neece ruling in cases described in IRM 25.5.1.4.1(3).

25.5.1.4.2  (04-30-1999)
Documents from Financial Institutions Located in Circuits Other than the Tenth Circuit

  1. The Service does not follow the Neece rationale in other circuits; therefore, information may continue to be obtained voluntarily from financial institutions in other circuits using credentials or voluntary methods.

25.5.1.4.3  (10-28-2011)
Considerations and Limitations on Issuance of a Summons

  1. Use credentials or circular letters (Letter 1040 (DO), Letter 1029 (DO), and Letter LP62 (ACS) to get information when possible.

    Note:

    Special Agents, Criminal Investigation, should ensure that the requirements stated in IRM 9.3.1.3.3 are met when using circular letters.

  2. Collection/Exam/TEGE should get clearance from CI and/or Area Counsel before issuing a summons in connection with a pending criminal case intended to do the following:

    1. Obtain more information from the taxpayer or a witness.

    2. Uncover assets to apply against assessed liabilities.

    Note:

    Collection personnel can issue a summons if firm indications of fraud have not been developed.

  3. As required by IRC 7602(d), do not issue a summons to investigate a taxable year (or period) where the Service has referred the same taxpayer’s case and the same taxable year (or period) to the Department of Justice for criminal prosecution. IRC 7602(d) generally does not prohibit a summons issued regarding a different year or taxable period. However, coordination with Counsel may be necessary. See IRM 5.1.5.11(2) and (3).

  4. Do not issue a summons to request proof of filing, copies of returns, or proof of payment if the desired documents are available from Service records.

  5. Employment and excise tax returns can be processed under IRC 6020(b).

  6. IRC 6331(g) forbids the levy or seizure of property of the taxpayer on the day that the taxpayer (or officer or employee of the taxpayer) appears in response to a summons issued for the purpose of collecting any under-payment of tax.

    Note:

    Exception: In a jeopardy situation, a levy or seizure of property may be appropriate even though the taxpayer is appearing in response to a summons.

25.5.1.4.4  (10-31-2006)
Other Federal Statutes

  1. Congress has created privacy rights in several industry and sector-specific federal statutes other than Title 26. These statutes include:

    1. Cable Communications Policy Act (1984)

    2. Communications Assistance for Law Enforcement Act (1994)

    3. Driver's Privacy Protection Act (1994)

    4. Electronic Communications Privacy Act (1986)

    5. Employee Polygraph Protection Act (1988)

    6. Fair Credit Reporting Act (1970)
      See Summons Handbook, IRM 25.5.4.4.6

    7. Family Education Rights and Privacy Act (1974)
      See Summons Handbook, IRM 25.5.6.11

    8. Gramm-Leach-Bliley Act (1999)

    9. Health Insurance Portability and Accountability Act (1996)

    10. Privacy Protection Act (1980)

    11. Right to Financial Privacy Act (1978)
      See Summons Handbook, IRM 25.5.1.4.1 and IRM 25.5.6.7(2)

    12. Social Security Act -- Family Child Support (Title IV-D)

    13. Video Privacy Protection Act (1988)

  2. Consult Associate Area Counsel with any questions concerning these statutes and the Service's summons authority.


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