25.5.9  Fees and Costs for Summoned Witnesses

25.5.9.1  (04-30-1999)
Overview

  1. Internal Revenue Code (IRC) section 7610 provides for the payment of witness fees and mileage to summoned witnesses and the payment of search, reproduction, and transportation costs to certain third-party witnesses. Third parties complying with a summons will be paid under the terms and conditions as set forth.

  2. Search, reproduction, and transportation cost payments are in addition to and not a substitute for a summoned witnesses’ right to witness fees and travel expenses.

  3. IRC 7610 provides for payments to third parties who request reimbursement for costs incurred in complying with a summons. Payments may be made to third parties without the issuance of a summons for records needed in an investigation which are available to the general public, under IRC 7801.

  4. The procedures and rates of payment contained herein take their authority from:

    1. 26 USC 7610, as enacted by Public Law 94–455, October 4, 1976 (Tax Reform Act of 1976).

    2. 26 USC 7801 with regard to public records where no summons is issued.

    3. Treasury Department Order No. 150–10, dated April 22, 1982; and

    4. IRS Delegation Order No. 178, dated August 8, 1997.

25.5.9.2  (08-18-2010)
Delegation of Authority

  1. The Commissioner of Internal Revenue has delegated to the Area Directors, and to such persons as the Area Directors deem appropriate, the authority to obligate appropriated funds for making payment for search, reproduction, and transportation costs in connection with complying with a third-party summons. See Delegation Order 178 (as revised). Because of this delegation, this matter is governed by business unit delegations of authority.

  2. Through this IRM, the term examiner will be used for a Service employee with delegated authority to issue summonses, such as a Revenue Officer, Revenue Agent, or a Special Agent.

  3. Examiners should estimate the obligation needed for payment of the cost of compliance with the summons and initiate the necessary administrative action to obtain the required level of approval authority under Area Delegation Orders.

25.5.9.3  (08-18-2010)
Payments for Costs in Complying with Summons

  1. IRC 7610 provides for payments to third parties who request reimbursement for costs incurred in complying with a summons. Payments may be made to third parties without the issuance of a summons for records needed in an investigation which are available to the general public, under IRC 7801.

  2. No payment may be made under IRC 7610 until the third party has satisfactorily complied with the summons and has submitted an itemized bill or invoice per Treasury Regulation 301.7610-1(c)(1).

  3. If a third party has satisfactorily complied with a summons but the invoice is determined to be incomplete, the agency shall:

    • return the invoice to the witness as soon as practicable after receipt, but no later than seven calendar days after receipt of the invoice and

    • notify the witness in writing of all defects that prevent payment and request invoice resubmission as soon as possible. The examiner's notification should clearly outline the actions necessary to complete, or perfect, the document.

  4. The Service must perfect and timely process and pay an invoice not returned to the witness within seven calendar days of invoice receipt but only if the witness has first satisfactorily complied with the summons. The examiner is responsible for perfecting and processing the invoice when the seven calendar day review time-frame is not met.

25.5.9.3.1  (08-18-2010)
Federal Agencies' Responsibilities

  1. The Service is committed to the following:

    1. Issue internal procedures to monitor cause of untimely payments, implement necessary corrective actions, and promptly address inquiries.

    2. Ensure that effective internal control systems are established and maintained as required. Administrative activities required for payments to witnesses under this part are subject to periodic quality control validation to be conducted no less frequently than once annually.

    3. Ensure that financial management systems capabilities should provide accurate and useful management reports on payments.

    4. Ensure that Inspectors General and internal auditors review payments performance and systems accuracy, consistent with the Chief Financial Officers (CFO) Act requirements, and

    5. Ensure timely payments.

25.5.9.4  (04-30-1999)
Claims for Witness Fees and Travel Expenses

  1. Witness fees and travel expenses are payable upon request to witnesses who are required to appear to give testimony or produce records before Service personnel in compliance with administrative summonses issued under IRC 7602, 6420(e)(2), 6421(g)(2), or 6427(j)(2). Amounts for fees are prescribed in 28 USC 1821. This includes a per diem rate and a rate per mile for associated travel. The procedures and conditions for payment of witness fees and mileage are not modified by requirements for reimbursement of third parties for search, transportation and reproduction costs as provided for in IRM 25.5.9.6. Witness fees and payments for mileage may be made to all summoned witnesses, whether a third-party witness, the taxpayer, or the taxpayer’s representative. Payment may be made whenever a summons is issued, regardless of the investigative state of the matter involved.

  2. Procedures for payment of witness fees and expenses are detailed below. Use Standard Forms (SF) 1157 (Claims for Witness Attendance Fees, Travel and Miscellaneous Expenses) (Original) for this purpose.

    1. The witness should prepare SF 1157 with the assistance of a Service employee, if necessary, and sign in block 9. The name of the taxpayer should be shown under the name and case number in line d and e, Part I, unless there is an assigned, non-SSN case number. Do not use the taxpayer's Social Security Number (SSN) in line e. The Service examiner before whom the summoned party appears should review the claim and sign on line 3, Part I and complete all information in Part III to indicate approval for payment.

    2. Fees paid to a witness are taxable income and a 1099 will be issued at the end of the calendar year. Social Security Number of the witness must be included on Form 1157 next to name on Line 1 of Part 1 -- Attendance Certification.

    3. Forward SF 1157 through channels to the appropriate Budget Analyst for review and completion of the information in Parts I and III. The Budget Analyst will forward the request to Beckley Finance Center for payment.

    4. When the person summoned demands assurance or guarantee that payment will be made, prepare an additional copy of SF 1157 and give the copy to the person. Insert the following statement: Payment of witness fees and travel expenses as stated above are guaranteed by the Internal Revenue Service immediately above the space for approval.

  3. If the person summoned cannot comply unless travel expenses are provided, then make an advance payment, not to exceed the amount allowable. Use the following procedures:

    1. Prepare SF 1157 in the name of the witness and enter the date scheduled for testimony on the line provided. Mark the original and any copies as Advance Payment and forward to the appropriate Budget Analyst for review. The Budget Analyst will sign and forward to Beckley Finance Center for payment processing

    2. When the advance payment covers only a part of the allowable fees and travel expenses, the SF 1157 submitted for the remainder of the allowance will bear a reference to the SF 1157 covering the advance payment.

25.5.9.5  (08-18-2010)
Definitions

  1. The following is a list of terms commonly used by the Service when a third party summons is served for books, records, and documents:

  2. Taxpayer: The person with respect to whose liability the summons is issued.

  3. Third Party: Any person served with a summons other than:

    1. a taxpayer; or

    2. an officer, employee, agent, accountant, or attorney of a taxpayer who, at the time the summons is served, is acting as such.

  4. Third Party Records: Books, papers, records, or other data in which the taxpayer does not have a proprietary interest at the time the summons is served.

  5. Directly Incurred Costs: Costs incurred solely, immediately and necessary as a consequence of searching for, reproducing or transporting records in order to comply with a summons. Proportionate allocation of fixed costs (overhead, equipment depreciation, etc.) is not considered to be directly incurred. However, where a third party’s records are stored at an independent storage facility that charges the third party a fee to search for, reproduce, or transport particular records requested, such fees are considered to be directly incurred by the summoned third party.

  6. Search Costs (include only):

    1. the total amount of personnel direct time incurred in locating and retrieving records or information; and

    2. direct costs of extracting information stored by computer. Salaries of persons locating and retrieving summoned material are not includible in search costs. (Persons are paid a set amount for direct time regardless of their salary or wage.) Also, search costs do not include salaries, fees, or similar expenditures for analysis of material or for managerial or legal advice, expertise or search, nor does it include time spent for such activities.

  7. Reproduction Costs: Costs incurred in making copies or duplicates of summoned documents, transcripts, and other similar material.

25.5.9.6  (08-18-2010)
Basis of Payment

  1. Payment for search, reproduction, and transportation costs will be made only to third parties served with a summons to produce third party records or information and only for material requested by the summons, unless the records are available to the general public.

  2. Make payment only for search, reproduction, and transportation costs that are both directly incurred and reasonably necessary. To determine whether costs are reasonably necessary, it is essential to consider search, reproduction, and transportation costs separately.

  3. Do not make any payment until the third party satisfactorily complies with the summons.

    Note:

    Enforcement of the summons due to a third party's partial summons compliance can be made.

  4. Do not make any payment unless the third party submits an itemized bill or invoice showing specific details concerning the search, reproduction, and transportation costs. Information that a witness must include on an invoice is discussed in section 25.5.9.8.1(1)

25.5.9.6.1  (08-18-2010)
Obligational Payment Authority

  1. Effective August 8, 1997, Delegation Order 178, grants authority to obligate appropriated funds for payment of search, reproduction, and transportation costs in connection with third party summonses issued under the Internal Revenue laws. Each examiner should review their individual operating unit's Delegation Order to determine who has authority to obligate funds and to what dollar level.

  2. Before issuance of a summons, make a reasonable estimate of the obligational authority level required for payment of the witness' costs for compliance with the summons. If the examiner does not have obligational authority for the expected costs, initiate the necessary administrative action to have the appropriate official approve the estimated costs of compliance prior to issuance of the summons.

  3. Consider the need for the information sought in relationship to the anticipated payable costs of compliance.

  4. Ensure Part B of the summons accompanies service of any summons and provide the witness with Form 6863, Invoice and Authorization for Payment of Administrative Summons Expenses. Inform the witness that Form 6863 may be used to request reimbursement.

  5. Upon full or satisfactory compliance with a summons, notify the third party that an itemized bill or invoice may be submitted for payment and provide your office address for billing.

  6. A third party invoice resulting from compliance with a summons which is $25 or less ($100 or less for revenue officers) may be paid in cash by the issuing examiner with obligational authority. This threshold does not include amounts which are claimed separately as witness fees and mileage. Input a claim for reimbursement under Miscellaneous Expenses on the travel voucher and provide a copy of the third party invoice with the signed voucher. This expense type may be claimed in conjunction with local or city-to-city travel expenses, and may not be claimed as the only expense on the travel voucher. Prior to paying the witness and signing the travel voucher:

    1. Ensure the invoice itemizes the specific details of search, reproduction and transportation costs and that charges are at authorized rates.

    2. Forward a copy of the invoice to the official who initially approved the obligation or the official with obligation authority appropriate to the amount of the bill if other than the examiner.

    3. The obligating official will evaluate the charges in terms of accuracy and reasonableness and certify the bill for payment processing by signing the following statement: "Payment is approved and is within my delegated obligational authority," and print their title and organizational identification.

25.5.9.7  (08-18-2010)
Information Received by Electronic Storage Media

  1. Whenever possible, encourage witnesses to submit summoned information via electronic storage media, i.e. compact disc (CD), thumb drive, etc. Witness research and retrieval of information in this format is normally less expensive and takes less time, and ultimately the summons invoice expenses are reduced.

  2. If the financial institution provides the summoned information via electronic storage media, in lieu of paper documents, process the data in accordance with Internal Revenue Manual 10.8.1, Informational Technology (IT) Security Policy and Guidance. Electronic media housing taxpayer information can be used by the examiner but must first be scanned for viruses on a stand-alone computer not connected to the IRS system. (See IRM 10.8.1.5.2.10(7).

  3. If the witness claims expenses for submission of both paper documents and electronic media, only allow the most cost effective expense claimed on the summons invoice. A witness cannot be paid for duplicate reproduction of information. Reflect the appropriate disallowed expenses on Line 15 of Form 6863, Section B, and notify the third party of the adjustment.

25.5.9.8  (08-18-2010)
Necessary Actions Upon Receipt of Witness Invoice

  1. Upon receipt of an invoice at an IRS office, an employee should date stamp the Form 6863 and forward the form to the examiner for review. If the witness sends an unmarked or unidentifiable content package containing the summoned information prior to the "quash" date and it is opened prematurely and the invoice is date stamped at that time, the examiner should strike over the date stamp and reseal the material received. Re-open the package and re-stamp the invoice the day after the quash period is expired. Notate on the Form 6863 the reason for the strike over of the first date stamp.

  2. After a third party witness has satisfactorily complied with a summons, the examiner must review any invoice within seven calendar days of receipt from a witness and either:

    • return it to the witness for correction, or

    • forward the invoice to Beckley Finance Center for payment processing.

  3. The examiner is responsible for reviewing Section A for completeness as submitted by the witness. If Section A is found to be complete and accurate, the examiner is responsible for completion and certification of Section B of Form 6863 and timely submission to Beckley Finance Center for payment. Incomplete invoices sent to Beckley Finance Center may delay payment and impair the government's ability to pay the witness timely. Examples of invoice errors which delay invoice processing are:

    1. Untimely submissions,

    2. Missing tax identification number, or

    3. Missing accounting code data.

25.5.9.8.1  (08-18-2010)
Review of Form 6863 (Section A)

  1. Several line items of Section A must be completed by the witness for the invoice to be processable. The examiner must review the following Form 6863 Section A lines for completeness of witness preparation:

    1. Line 2 - Payee's Federal Tax Identification Number (TIN): The witness must list their Federal Tax Identification Number (TIN).

    2. Line 3 - Name and Address of Payee: The witness must include their full remittance name and address, to include the zip code.

    3. Line 6 - Service/Financial Records Provided: The witness must provide the applicable required information; (i.e., the hours spent producing the documents and the level of the employee performing the work, the actual cost of extracting the information, number of copies, transportation cost to deliver records, and other expenses), along with any other details which substantiate the claim.

    4. Line 7 - Printed Name of Financial Institution Official or Payee: Self explanatory

    5. Line 8 - Title and Business E-mail Address: The Title of the authorized employee of the witness is the only required item. An E-mail address is not required for processing.

    6. Line 9 - Signature of Financial Institution Official or Payee: A signature is required for payment processing.

    7. Line 10 - Date Signed: The witness must date Form 6863.

    8. Line 11 - Telephone Number: A contact number is required.

  2. After a witness has satisfactorily complied with a summons, if any of the information in the lines listed in paragraph 1 is missing or incomplete on the Form 6863 received from the witness, the examiner must return the invoice to the witness within seven calendar days with a document identifying the lines the witness must complete in order for the invoice to be processed . The examiner can complete the missing information if known or if obtained from the witness telephonically. However, if the examiner does not know and cannot complete the missing information themselves and the invoice is not returned to witness and documented within seven days of the date stamp, the examiner must obtain the missing information and process the invoice for payment immediately.

    Note:

    The examiner can secure the missing line items verbally from the witness, but verbal communication does not extend the seven day time frame to return the invoice to the witness and responsibility falls on the examiner to correct the invoice for processing purposes.

  3. Section A of Form 6863 does not require information on Lines 1, 4 and 5 from the witness in order to be processed for payment. The invoice cannot be returned to the witness for corrections or invoice processing delayed if the following lines are not completed:

    1. Line 1 - Payee's Invoice Number: The witness should assign their own unique invoice number. This is helpful to monitor and track for accounting control purposes.

    2. Line 4 - Name and Address of Taxpayer: This information is not required. However, the examiner should record the taxpayer name and address for which the summons information relates.

    3. Line 5 - Payment Method: The witness completes this section in order to receive payment via Electronic Funds Transfer (EFT).

    4. Line 8 - Title and E-mail address: The title is required. An E-mail address is not.

  4. When a previously incomplete invoice is returned by the witness, follow the above process to review and process the invoice. Notate on the face of the Form 6863 the reason for more than one date stamp on the Form 6863.

25.5.9.8.2  (08-18-2010)
Examiner Authorization and Certification of Form 6863 (Section B)

  1. The examiner has responsibility for completion and certification of Form 6863 Section B. The examiner must certify and forward the invoice according to operating unit guidelines or to Beckley Finance Center within seven calendar days of receipt of a correct and accurate invoice from a witness, provided the witness has satisfactorily complied with the summons.

  2. The examiner will review amounts claimed by the witness for reproduction costs and determine if they are appropriate. The examiner must enter the appropriate information in the following lines of Form 6863 Section B:

    1. Line 12 - Date Summons Issued: Enter the date the examiner issued the summons to the third party

    2. Line 13 - Date Complied With: Enter the date the witness satisfactorily complied with the terms of the summons.

    3. Line 14 - Date Invoice Received: Enter the date that a perfected and accurate invoice is received from the witness. Do not use the date an invoice with missing or incomplete information was received. Use the date the invoice containing all required witness line items in Section A was received. Although this can be the same as the date stamp date, it is not always the same.

    4. Line 18 - Accounting Classification: Enter the Requisition Number or Cost Center and Functional Area codes. Because the accounting codes change annually or If you do not know the codes, contact your area Budget Office for assistance if needed.

    5. Line 15 - Total Amount Claimed: Enter the total amount claimed by the witness from line 6g.

    6. Line 16 - Disallowance (if any): Review the reimbursement amounts claimed by the witness. If any amounts are inappropriate or incorrect (i.e., incorrect hourly rate, incorrect number of documents claimed versus. amount actually received, duplicate information received by both electronic and paper means), enter the dollar amount to be disallowed. If the amount shown by the witness on line 6g and entered on Line 15 is correct, enter " $0" .

      Note:

      It is the examiner's responsibility to notify the third party when a claim is reduced.

    7. Line 17 - Amount to Payee: Subtract Line 16 from Line 15 and enter the total.

    8. Lines 19 through 23 - Certification: Self explanatory. Enter information as the examiner and sign on Line 22.

    9. Lines 24 through 28 - Certification: Self explanatory. The examiner enters their information and signs on Line 27 if they have obligational authority. If the obligating official is someone other than the examiner, route the Form 6863 for that person to enter their information and sign on Line 27.

      Note:

      Complete Lines 19 through 28 even if the examiner is the same person certifying in both areas. The first certification indicates articles and services were received and the second certification is for the obligation of funds.

    10. Line 29 and 30: Before transmitting the invoice to Beckley Finance Center, mark the manner of submission and the date the invoice is submitted.

25.5.9.8.3  (08-18-2010)
Summoned Information Received Without An Invoice

  1. Process witness invoice submissions in formats other than Form 6863 in the same manner as Form 6863. Provided the witness has satisfactorily complied with the summons, the examiner must review the invoice within seven calendar days to ensure all items required in Section A are contained on the invoice. If so, use the steps in the following table to process the invoice for payment:

    Step Action
    1 Complete and certify Section B of Form 6863.
    2 Attach the witness' invoice to Form 6863.
    3 Write "See attached invoice " in the "Signature of financial institution official or payee " line of Section A.
    4 Transmit the documents to Beckley Finance Center as described in IRM 25.5.9.8.5.

  2. If the invoice does not contain all required information, refer to IRM 25.5.9.8.1(2) for necessary actions to correct or return the invoice for completion and perfection by the witness.

25.5.9.8.4  (08-18-2010)
Invoice Processing Table

  1. The following table provides guidance on processing invoices from the point of initial receipt by the examiner:

    If And Then And
    Section A contains all required information all documents and information required by the summons is received complete and sign Part B of Form 6863 send to Beckley Finance Center for payment.
    An invoice is received without Form 6863 all information required by the summons is received Staple the invoice to Form 6863 and write "see attached invoice" in the witness signature area of Part A. Complete and sign Part B of Form 6863 send to Beckley Finance Center for payment.
    Section A contains all required information only partial documents and information required by the summons is received the request for payment may not yet be processed. Notify the witness that no request for payment may be processed until the witness has satisfactorily complied with the summons. Also, notify the witness in writing of the additional documents and information required by the summons.
    Section A does not contain all required information no information, partial information, or all information required by the summons is received return the invoice to the witness with specific instructions on what needs to be done to perfect the invoice and any additional information required by the summons. Document on the Form 6863 with the date of return to the witness (i.e.: "Return to witness 3/1/10"). wait to receive satisfactory compliance with the summons and a perfected invoice from the witness before submitting anything to Beckley Finance Center for payment.

25.5.9.8.5  (08-18-2010)
Invoice Submission to Beckley Finance Center

  1. The preferred method for invoice submission to Beckley Finance Center is by fax or by scanning the document and transmittal via E-mail. Transmittal information is as follows:

    • E-mail scanned invoices to *CFO BFC Invoice Link

    • Fax an invoice to (304) 254-3547

    If either option is used, do not forward or mail a copy of the original invoice to Beckley Finance Center in any other manner. Retain the original invoice in the case file.

  2. The least preferred method for submission of an invoice is by mail to:

    Beckley Finance Center
    P.O. Box 9002
    Beckley, WV. 25802

25.5.9.8.6  (08-18-2010)
Duplicate Invoices or Witness Payment Inquiries

  1. Do not send duplicate copies of invoices to Beckley Finance Center. If the original was faxed or scanned and E-mailed, retain the original in your case file and do not mail or re-transmit the original in any manner to Beckley Finance Center. Duplicate Form 6863 transmittal in any manner, regardless of how the original invoice was transmitted, may result in duplicate processing and payment to the witness.

  2. Process witness inquiries received using one of the following options.

    • communicate to the witness to contact Beckley Finance Center at (304) 254-3300, or

    • E-mail an employee communication concerning duplicate invoices or witness payment to *CFO BFC Summons Help Desk.

    Note:

    Do not transmit the invoice to Beckley Finance Center using normal routing procedures.

  3. Write in bold letters "Duplicate Invoice Inquiry" or "Witness Payment Inquiry " across the face of the Form 6863 for any suspected duplicate invoice or witness payment inquiry communication that contains a copy of the invoice. If the examiner still has a copy of the original invoice, the original submission manner and date must be clearly indicated on Form 6863 Lines 29 and 30 and include the appropriate bold letters across the face.

  4. If the witness submits two invoices for the same case but on different dates and you suspect or it appears to be a duplicate, determine if the invoice is duplicate and already transmitted to Beckley Finance Center. If so, follow the guidance in paragraph 2.

    Note:

    Do not complete Section B and resign or recertify a copy of Form 6863 received with a witness' payment inquiry.

25.5.9.9  (08-18-2010)
Inter-Area Courtesy Summons

  1. Special procedures apply to courtesy summonses served in another area.

    1. When one area requests a summons to be served by another area, the obligating authority official in the initiating area will obligate funds for the payment of that summons. The requesting area will forward a completed summons, exclusive of the time and place for appearance and the agent before whom the witness is to appear. The transmittal document or Courtesy Investigation accompanying the summons should indicate the level of obligation authority and Form 6863 with the appropriate Office and funding codes.

    2. If the serving office anticipates costs to exceed the obligational amount of the official indicated, the serving employee in the receiving area will advise the requesting area of the need for the approval of an official with higher obligational authority.

    3. The Service employee of the area serving the summons and the issuing official of the requesting area should coordinate to determine that compliance has occurred.

    4. Within four calendar days of receipt from the witness who has satisfactorily complied with a summons, the serving employee will review the invoice for completeness as described in IRM 25.5.9.8.1. If invoice corrections are needed, the serving employee will fax or E-mail the invoice to the originating official in the requesting Area within four calendar days of invoice receipt or return the invoice to the witness for corrections within seven calendar days of receipt.

    5. Provided the witness has satisfactorily complied with the summons, the issuing official will review, certify for payment, and forward to Beckley Finance Center for payment processing within seven calendar days of original invoice receipt.

25.5.9.10  (08-18-2010)
Additional Invoice Processing Information

  1. To access Form 6863: http://publish.no.irs.gov/FORMS/PUBLIC/PDF/25140B10.PDF


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