25.5.10 Enforcement of Summons

Manual Transmittal

May 12, 2016

Purpose

(1) This transmits a revision to IRM 25.5.10, Summons, Enforcement of Summons.

Background

The Summons Handbook provides guidelines for all IRS functions in one multifunctional handbook. This section discusses the summons enforcement procedures.

Material Changes

(1) IRM 25.5.10.1(2) added new paragraph describing what this section is about, and the intended audience.

(2) IRM 25.5.10.2 added IRM references in paragraphs (3) and (4).

(3) IRM 25.5.10.3(3) added IRM references.

(4) IRM 25.5.10.3(3)(e) added a Note explaining that IRC 7605(b) does not apply when the requested records are for an audit of a different tax year.

(5) IRM 25.5.10.3(3)(g) added IRM reference and added an example of proper service.

(6) IRM 25.5.10.3(3)(h) and (i), added IRM references.

(7) IRM 25.5.10.3(4) added paragraph clarifying that a summons is enforceable against individuals or entities who possess or control the summoned documents and fall within the jurisdiction of U.S. district court.

(8) IRM 25.5.10.3(5) added paragraph explaining that the Unites States District Court for the district in which the summoned person resides has the jurisdiction to compel the person to appear, testify, or produce the records.

(9) IRM 25.5.10.3(6) added paragraph explaining the standards set by Powell for an enforceable summons.

(10) IRM 25.5.10.3(7) added paragraph providing examples of administrative steps required by the Code.

(11) IRM 25.5.10.4(3) added instructions to attach the summons and certificate of service to the petition to enforce the summons.

(12) IRM 25.5.10.4.1.1(2) added IRM references.

(13) IRM 25.5.10.4.1.2(5)(c) added instructions to include the certificate of service of summons with the Form 4443.

(14) IRM 25.5.10.4.1.2(7) added new paragraph instructing employees to include the last chance date and time on the Form 4443.

(15) IRM 25.5.10.4.1.3(2) clarified that letter to taxpayer is also known as the last chance letter.

(16) IRM 25.5.10.4.1.3(3) added guidance that the last chance date needs to be at least 15 days from the date the case was referred to Associate Area Counsel.

(17) IRM 25.5.10.4.1.3(4)(c) added the certificate of service of summons as part of the documents sent to Associate Area Counsel.

(18) IRM 25.5.10.4.2(2) added IRM references regarding disclosure procedures in strike force investigations and disclosure to federal agencies.

(19) IRM 25.5.10.4.2(4) clarified what CT Counsel approves and what Associate Chief Counsel P&A approves.

(20) IRM 25.5.10.4.3(3) clarified procedures when revenue agent is not in favor of summons enforcement.

(21) IRM 25.5.10.4.3(5) clarified that Associate Area Counsel forwards the civil enforcement of summons request to the US Attorney for the area where the person resides or is found.

(22) IRM 25.5.10.5(5) removed “CI-issued” term.

(23) IRM 25.5.10.6(4) referred to CCDM 31.1.4.6 for directives when there is a disagreement with Associate Area Counsel regarding a summons enforcement request.

(24) IRM 25.5.10.8.1(3) added paragraph explaining a third-party summons not subject to the notice requirements cannot be quashed by the witness or taxpayer.

(25) The revision to this IRM section includes editorial changes, formatting, and IRM reference corrections throughout.

Effect on Other Documents

This IRM supersedes 25.5.10 dated January 13, 2012.

Audience

All operating Divisions and Functions.

Effective Date

(05-12-2016)

Signed by
Kristen E. Bailey
Director, Collection Policy

Overview

  1. This section contains the following topics:

    • Appearance, Compliance or Noncompliance with a Summons

    • General Enforcement Procedures

    • Civil Enforcement of Summons

    • Criminal Enforcement of Summons

    • Protest Procedures in Civil Enforcement Cases

    • Protest Procedures in Criminal Enforcement Cases

    • Reports on Adverse Decisions in Civil Proceedings to Enforce Compliance With Summons

  2. This section provides summons enforcement guidelines for Collection, Examination, Employee Plans and Exempt Organizations, and Criminal Investigation.

Appearance, Compliance or Noncompliance with a Summons

  1. Anytime a summons is issued, inform the witness or the witness’ representative that:

    1. The witness must appear in person with the records and either comply or refuse to comply, stating reasons for any such refusal.

    2. Failure to comply with the summons may result in judicial remedies.

    3. The representative of the witness cannot appear in lieu of the witness on the appearance date set in the summons.

  2. If the witness presents a valid reason (such as illness) for not appearing on the day fixed in the summons, that date may be continued by mutual agreement to another date. To formally extend the compliance date of the summons:

    1. Prepare a letter to the summoned party and include: date of the original summons, new compliance date, and name of the summoned party.

    2. Mail the letter by certified mail or hand deliver it to the summoned party.

  3. If a taxpayer or witness appears in response to a summons and claims the Fifth Amendment or another privilege, continue with the examination or interview. Ask the summoned person all questions necessary so the person asserting the privilege responds to each inquiry by either answering the questions and producing the documents, or asserting the claimed privilege. However, if the person summoned refuses to submit to questioning and the requests for documents, do not continue the interview. Make a record of the interview. Another IRS employee should attend the interview or examination as a witness. Associate Area Counsel should be contacted in any case in which the taxpayer raises a constitutional defense to a summons. Refer to IRM 25.5.5.4.7, Noncompliance by the Witness or a Representative, for more information.

  4. The above procedures are important to the enforcement of a summons to establish the facts and circumstances of noncompliance. The procedures respecting claims of privileges are primarily applicable when only the witness and the witness’ representative appear in response to the summons. If the taxpayer or another person attempts to be present during the questioning of a summoned third-party witness, and the IRS employee does not desire to disclose the course of the investigation or examination to the taxpayer or other person, the IRS employee should consult with her or his manager. Associate Area Counsel may also be consulted. See IRM 25.5.5.4.8, Disclosure Issues, for more information.

General Enforcement Procedures

  1. A summoned party who fails to comply with a summons may be subject to:

    1. Criminal proceedings under IRC 7210, Failure to Obey Summons.

    2. Civil proceedings to enforce compliance under IRC 7604.

  2. When a person (a noticee) entitled to notice of a summons under IRC 7609(a) has exercised their right to bring a proceeding to quash a summons, the IRS officer receiving a petition to quash should notify Associate Area Counsel by telephone that same day. Make every effort to obtain copies of the documents involved so that they can be forwarded to Associate Area Counsel.

    1. The noticee must begin a civil action in the appropriate U.S. district court to quash the summons no later than 20 days after the day notice of the summons is given.

    2. Within the 20 day period, the noticee must mail (by registered or certified mail) a copy of the petition to quash the summons to the summoned witness and a copy to the IRS officer who issued the summons.

  3. Consider recommending civil enforcement action or criminal action when the person summoned neglects or refuses to comply. Do not refer a summons for enforcement in the following situations that might involve an abuse of process, or in other similar situations:

    1. The summoned party or their representative has contacted the IRS and indicated a willingness to comply with the summons but has requested a reasonable extension of time within which to comply.

    2. The summoned party has appeared and denied under oath the possession or control of the documents called for in the summons, unless there is a good reason to believe the contrary.

    3. The IRS has had possession of the documents for a sufficient period of time in which to examine and copy them. (See IRM 25.5.4.4(7)-(11), Withdrawal of Consent to the Use of Records, regarding photocopying summoned records).

      Note:

      This provision does not include cases which involve the withdrawal of consent to the use of records by an owner of records where the IRS has not had sufficient time to examine and copy them. Refer to IRM 25.5.4.4(7) in this situation.

    4. Records of financial transactions are demanded before the summoned party could reasonably be expected to produce them.

    5. More than one examination of the same records for the same purpose is sought under circumstances that might suggest harassment.

      Note:

      IRC 7605(b) does not apply when the already-inspected records are for an audit of a different tax year.

    6. The summons was not issued by a proper, delegated official. See IRM 1.2.52.2 , Delegation Order 25-1, paragraph 9.

    7. The summons was not properly served under IRC 7603. See IRM 25.5.3.2, Service of Summons. For example, when issuing a summons to a third party not listed among the categories of third party recordkeepers in IRC 7603(b)(2), a summons must be delivered in hand to the person it is directed, or left at his last and usual place of abode.

    8. The summons does not comply with the time requirements for production of documents under IRC 7605(a) and IRC 7609(a)(1). See IRM Exhibit 25.5.2-1 , General Instructions for Preparation of a Summons.

    9. The summons to a third party does not comply with the notice requirements under IRC 7609(a). See IRM 25.5.6.4, Statutory Requirements for Third-Party Summonses.

  4. A summons is enforceable against individuals or entities who possess or control the summoned documents and fall within the jurisdiction of U.S. district court.

  5. The U.S. District Court for the district in which the person resides or is found has jurisdiction to compel the person to appear, testify, or produce the records. IRC 7604(a).

  6. The Supreme Court’s decision in United States v. Powell, 379 U.S. 48, 57-58 (1964) sets the standard for summons enforcement. The IRS must be able to establish that:

    1. The investigation will be conducted pursuant to a legitimate purpose;

    2. The inquiry may be relevant to the purpose;

    3. The information sought is not already in the possession of the IRS; and

    4. The administrative steps required by the Internal Revenue Code have been followed.

  7. The Powell requirement regarding following all administrative steps required by the Code is usually understood to refer to the issuance and service requirements of sections 7602 and 7603. At least one district court refused to enforce a summons because it found the Service had failed to comply with the notice of third-party contact rules under IRC 7602(c). United States v. Jillson, 99-14223-CIV, 1999 WL 1249414 (S.D. Fla. Oct. 28, 1999).

Civil Enforcement of Summons

  1. IRC 7604 provides for the civil enforcement of a summons.

  2. Under IRC 7604(b), enforcement action may be initiated by applying for an attachment for an arrest against a person who has failed to obey a summons to a district judge or magistrate judge. When the person is brought before the district judge or magistrate judge, the judge will issue whatever order is deemed proper to enforce compliance with the summons and to punish such person for default or disobedience. When a petition for attachment is filed, the court may choose to proceed by issuing an order to show cause why the summons should not be obeyed. It may also modify the summons if compliance would be unreasonable or oppressive.

  3. Enforcement proceedings are usually commenced by filing a petition for a court order directing compliance with the summons. The original summons and the certificate of service of summons (found on page 2 of the summons), or copies, should be attached to the petition or offered in evidence; otherwise, the court may not enforce it. Based upon the allegations, the court may issue either an order to show cause, or an ex parte (only one party represented) order directing compliance with the summons. The use of procedures other than attachment is authorized by IRC 7604(a), which grants district courts jurisdiction to enforce compliance by appropriate process.

  4. The IRS employee who issued the summons is responsible for the preparation of all requests for civil enforcement of summonses. Use either the memorandum report format or Form 4443, Summons Referral. Include the following information in all requests for civil enforcement:

    1. The name, full address, and taxpayer identification number of the taxpayer;

    2. A brief summary of the pertinent facts;

    3. What the IRS employee seeks to obtain by the summons;

    4. An explanation of the relevancy of the records sought where the relevancy is not obvious. For example, if records pertaining to years other than those under investigation are sought, the relevancy should be explained. Explain the relevancy of records pertaining to third parties, etc.;

    5. An explanation of the need or importance of such evidence in relation to the success or completion of the investigation or examination;

    6. A statement that IRC 7609(a) notice has been served on persons or entities identified in the description of records or, if not, why it is believed notice is not necessary;

    7. If a corporation is the party summoned, a statement of whether service of the summons has been made on an officer, registered agent or employee of the corporation authorized to receive process of the summons by either state law or the corporate by-laws, and if not, why not;

    8. The circumstances surrounding contacts with the person summoned showing particularly the defense(s) claimed for refusing to comply with the summons and the circumstances under which the person summoned claimed the defense(s);

    9. A transcript (if recorded) of the questions put forward to the person summoned and the person’s answers;

    10. The name or pseudonym of the IRS revenue agent, special agent, or revenue officer or, if none, why;

    11. A description of any problems involving the imminent expiration of the statute of limitations with respect to either the criminal or the civil liability;

    12. A statement as to the existence of any known criminal investigations of the taxpayer by other federal agencies and, in the instance of a corporate taxpayer, corporate officers or employees;

    13. A statement as to any disclosures made pursuant to IRC 6103(i) concerning possible violations of criminal laws not within IRS jurisdiction;

    14. A statement as to any other known requests for summons or subpoena enforcement against the witness or related parties; and

    15. If a pen register was used in the investigation prior to the issuance of the summons, a statement to that effect and the reason the pen register was used.

Collection Review

  1. Areas may decide whether Advisory or group managers will review summonses before they are referred to Associate Area Counsel. If group managers are authorized to review summons referrals, establish a system to allow Associate Area Counsel to report to Collection any decrease of quality in the referrals.

Referral
  1. After a person neglects or refuses to comply with a summons, decide if summons enforcement is appropriate. Review the case file to ensure that all standards for preparation, issuance, and service of the summons were met.

  2. Within 14 days following the appearance date (or the date of withdrawal of consent), prepare and send the summons referral to Advisory.

    Note:

    If a DEL RET Supplement or IRMF transcript was requested, follow procedures in IRM 25.5.10.4.1.2, Preparation of Summons Referral.

  3. Document the case file with an explanation if the:

    1. Decision is made not to enforce the summons; or

    2. Summons is not referred within the time period described in (2) above.

Preparation of Summons Referral
  1. Prepare Form 4443, Summons Referral, to refer the summons for enforcement.

  2. The group manager must approve Form 4443 prepared by revenue officers below grade 9.

  3. A summons referral for withdrawal of consent by an owner of records will include the following:

    1. In the heading block of the Form 4443 (which contains the words Summons Referral), include in red capital letters "WITHDRAWAL OF CONSENT TO USE RECORDS ."

    2. Describe the records in your possession. State whether the records are originals or photocopies. Examples are bank statements, contracts, check books, or financial statements.

    3. State whether the owner of the records retained copies of the records.

    4. State the date the IRS received the records.

    5. State the date, time, and method used by the owner of the records to withdraw consent to the use of the records.

    6. State the date and time the records were secured and where they are located.

    7. State whether the owner of the records claimed reimbursement for search, reproduction, and transportation costs. Attach a copy of the invoice or Form 6863, Invoice and Authorization for Payment of Administrative Summons Expenses, if costs were claimed.

    8. Include a copy of the letter if the owner of the records withdraws consent in writing.

  4. Include the following in a summons referral requesting Forms W-2 or 1099:

    1. Check the "Yes" block in item 7 on Form 4443. Explain in space C why it is impossible or impractical for the IRS to produce the Forms W-2 or 1099 from its own records. Otherwise, the summoned party can defend against enforcement of the summons for the production of documents already in the IRS' possession unless the IRS provides good reason for its inability to produce the documents.

    2. Document Form 4443, Section C if an IMF DEL RET Supplement is in the case file with Forms W-2/1099 information for all periods covered by the summons.

    3. Request a DEL RET Supplement from IDRS.

      If Then
      All periods do not appear on the DEL RET Supplement in the case file Request a DEL RET Supplement
      The missing years are available on the IMF DEL RET Supplement file on IDRS Request a DEL RET Supplement
      There is no supplement in the case file Request a DEL RET Supplement
    4. Request an Information Returns Master File (IRMF) transcript for earlier years not available on the IMF DEL RET Supplement file.

  5. If a DEL RET Supplement or IRMF transcript was requested:

    1. Do not refer the summons for enforcement if the requested items (or negative response) have not been received by the date set for compliance.

    2. If an IRMF transcript is not received within four weeks, treat as a negative response.

    3. Forward Form 4443, with the original summons and the certificate of service of summons to Advisory within 14 days after receipt of the requested items (or negative response).

    4. Notify Advisory if a transcript is received after the summons has been referred for enforcement.

  6. Notify Advisory (or Counsel if a direct referral) of any developments affecting the summons enforcement proceeding. Advisory must in turn notify Associate Area Counsel if the summons has been referred to that office. Examples of the type of information which must be reported are:

    1. The evidence sought is no longer needed.

    2. The person summoned voluntarily complied with the summons.

    3. The tax liability was paid, became unenforceable due to expiration of the statute for collection, or was otherwise satisfied.

  7. Include the "last chance" date and time in Section C of Form 4443.

Referral of Collection Summons to Associate Area Counsel
  1. Advisory (or group manager if direct referral) will:

    1. Review the case to ensure the summons is proper in all respects;

    2. Review the referral report to ensure it contains all necessary information;

    3. Contact the referring Collection employee about any deficiencies with the summons referral so that corrective action can be taken.

  2. If the summons and the referral report are satisfactory, Advisory will prepare a "last chance" letter and three copies, to the summoned person, for the signature of Associate Area Counsel. See IRM Exhibit 25.5.10-2, Letter to Summoned Person from Associate Area Counsel. This letter is also known as the "last chance" letter.

    Note:

    Refer the case directly to Associate Area Counsel without the "last chance" letter when a noticee has petitioned to quash the summons under IRC 7609.

  3. Set the appointment date for the summoned person to appear before the Collection employee at least 15 days from the date that the case was referred to Associate Area Counsel. This is known as the "last chance" date. The appearance date is typically at least two weeks from the date of the "last chance" letter. Counsel will send a "last chance" letter to the summoned person to give a last opportunity to comply with the summons before litigation is instituted. It is often effective in achieving compliance, thus dispensing the need to seek enforcement of the summons through the court.

  4. Advisory will transmit the following documents to Associate Area Counsel within seven days of receipt of the case:

    1. Original and two copies of Form 4443;

    2. Original and three copies of the "last chance" letter for Associate Area Counsel’s signature (unless an IRC 7609 quash case is involved); and

    3. The original summons and the certificate of service of summons.

      Note:

      Documents for withdrawal of consent cases will be transmitted to Associate Area Counsel as soon as possible but no later than 14 days (including the date of receipt) from the date of receipt of the case.

  5. Associate Area Counsel will consider the summons enforcement request.

    If Then
    Associate Area Counsel believes the summons can be enforced They will sign and mail the "last chance" letter to the summoned person
    Associate Area Counsel believes the summons cannot be enforced They will inform Advisory so the referring employee can be notified
  6. After Associate Area Counsel sends the "last chance" letter to the summoned person, they will retain a copy and then provide two signed copies of the letter to Advisory. Advisory will:

    1. Retain one copy for the case file; and

    2. Forward the other copy to the referring employee.

  7. If the summoned person fails to comply with the "last chance" letter issued by Associate Area Counsel, prepare a summons declaration and three copies per IRM Exhibit 25.5.10-3, Sample of a Declaration, within three days after the date set for appearance in the "last chance" letter.

    Note:

    If necessary, modify the declaration to meet the requirements of local law.

  8. Immediately notify Advisory when the person summoned is given more time to comply with the summons. Advisory will notify Associate Area Counsel of the newly established time for appearance.

  9. Advisory will review and forward the original and two copies of the summons declaration to Associate Area Counsel. Associate Area Counsel must receive these documents within 21 days after the date set for appearance. If necessary, inform Associate Area Counsel by telephone that a civil action to enforce the summons is or is not being recommended and when the necessary documents will be forwarded.

  10. Associate Area Counsel will notify Advisory if the summons will not be enforced for withdrawal of consent cases. Advisory will immediately notify the referring employee who will immediately arrange to return the records to their owner.

Criminal Referral of Collection Summons
  1. Prepare Form 2797, Referral Report of Potential Criminal Fraud Cases, for criminal enforcement of the summons.

  2. While the case is under consideration for criminal action, do not attempt to enforce obedience with the provisions of the summons. If not accepted for criminal investigation, the matter may be referred to the respective civil Counsel for civil enforcement action.

Criminal Investigation

  1. Any summons issued as part of a criminal investigation that has not been complied within six workdays following the date set for compliance, where enforcement action is appropriate, will be referred to Criminal Tax (CT) Counsel for initiation of enforcement proceedings.

  2. The CI Special Agent In Charge (SAC) will indicate approval of the referral by endorsement on the signature page of the summons enforcement request. Transmit the original and four copies with the original of the summons (Form 2039, Summons) to CT Counsel, through the Director, Field Operations or designee. If the matter relates to a strike force (see IRM 9.4.13.6, Organized Crime (OC) and Strike Force), the SAC will forward an extra copy of the request through CT Counsel to the Criminal Division of DOJ provided that such disclosure is authorized under section 6103(i) as a disclosure not related to tax administration. See IRM 9.4.13.6.2, Disclosure Procedures in Strike Force Investigation and IRM 11.3.28, Disclosure to Federal Agencies for Administration of Non-Tax Criminal Laws.

  3. For a parallel investigation, the replying area will provide a memorandum to the requestor in support of a referral for civil enforcement of the summons. The requesting area will then process the referral through the CT Counsel servicing their area.

  4. Requests for summons enforcement generally are approved by CT Counsel. However, in certain cases (e.g. "John Doe" Summonses; requests for tax-accrual workpapers; etc.) requests must be approved by Associate Chief Counsel (Procedure & Administration).

  5. After referring a summons to CT Counsel for civil enforcement, keep Counsel informed of all circumstances affecting the summons enforcement proceeding by memorandum. In instances where time is of the essence, immediately advise CT Counsel by telephone of the facts in the matter. Follow with a confirmation by memorandum. Examples of the type of information to report are:

    1. Evidence sought is no longer needed;

    2. The witness has voluntarily complied with the provisions of the summons;

    3. The tax liability is paid or otherwise satisfied;

    4. The principal is about to be offered a CI conference; or

    5. The special agent has submitted a report recommending prosecution of the principal.

    Note:

    Prepare the memorandum as soon as the information is received. Distribute the same number of copies and in the same manner as the original referral to Counsel. Forward copies of any legal documents involved in the action with the memorandum.

  6. Inform CT Counsel by memorandum of compliance of any summons which is referred to DOJ for enforcement, or of an initial decision by a federal district court or magistrate that the summons is unenforceable. Include in the memorandum:

    1. The names of the taxpayer and witness;

    2. The appearance date set in the summons;

    3. The date the summoned person complied with the summons or the date of the adverse decision;

    4. Whether compliance was satisfactory; and

    5. Whether compliance was pursuant to a court order.

    Note:

    Prepare the memorandum as soon as practicable after compliance or the adverse decision. Distribute in the same manner as the original referral to CT Counsel.

  7. After the referral for summons enforcement, inform CT Counsel by memorandum of any:

    1. Ex parte orders under IRC 6103(i) that may be sought or granted;

    2. Head of agency requests received or granted.

    Note:

    Notify CT Counsel if the witness becomes the subject of a grand jury inquiry before the enforcement of the summons has been granted.

  8. If there is a pending summons enforcement action related to an investigation when the special agent’s report recommending prosecution is forwarded to CT Counsel, include in the memorandum a statement to that effect. Also, identify the party involved in the summons enforcement action and the CT Counsel office handling the matter.

Examination

  1. Include in the referral memorandum whether:

    1. The examination is a reexamination within the meaning of IRC 7605(b).

    2. Approval has been obtained from another IRS function or DOJ. If so, provide the necessary documentation.

  2. Forward the referral memorandum to Associate Area Counsel within six working days following noncompliance.

  3. If a revenue agent is not in favor of summons enforcement:

    1. The revenue agent should prepare a memorandum within six working days following noncompliance to the Field Territory Manager, explaining the reasons the revenue agent is not in favor of enforcement proceedings.

    2. Retain a copy of this memorandum in the administrative files.

    3. Upon approval from the Field Territory Manager, if Field Counsel pre-reviewed the summons, then submit a copy of this memorandum to Associate Area Counsel.

  4. An affidavit should be prepared by the examiner(s) who issued the summons, served the summons, and examined the summoned person. Set forth all the facts pertinent to the issuance and service of the summons and the summoned person’s noncompliance. A single affidavit is required if the same examiner performed all three functions. Transmit the affidavit plus any memorandum to Associate Area Counsel.

    Note:

    Do not prepare an affidavit in cases involving "John Doe" summonses, Special Enforcement summonses, or summonses to financial institutions. These affidavits will be prepared by or under the supervision of DOJ.

  5. If Associate Area Counsel has approved civil enforcement of a summons, it will forward the request to the U.S. Attorney for the area where the person resides or is found. Associate Area Counsel will provide a copy of the transmittal memorandum with copies of all attachments to the Tax Division of DOJ.

Inform Associate Area Counsel of Subsequent Development
  1. A memorandum will be provided by the Field Territory Manager, to Associate Area Counsel relating to any subsequent developments concerning the summons enforcement proceeding. The following are examples of information that should be provided to Associate Area Counsel:

    1. Evidence sought is no longer needed,

    2. Witness has voluntarily complied with the provisions of the summons,

    3. Tax liability is paid or otherwise satisfied,

    4. Case has gone to court for enforcement,

    5. Date set for appearance pursuant to the summons,

    6. Date of compliance,

    7. Adverse decision,

    8. Whether compliance was satisfactory, and

    9. Whether compliance was pursuant to a court order.

    Note:

    The memorandum should be prepared as soon as the information is received, attaching copies of all pertinent documents. The memorandum and copies of the memorandum should be distributed in the same manner as the memorandum that was referred to Associate Area Counsel.

  2. In time sensitive situations, Associate Area Counsel should be immediately advised by telephone of the facts. A memorandum can then be prepared as described.

Civil and Criminal Contempt Regarding Summons

  1. A person refusing to obey a court order to comply with a summons (civil enforcement) may be held in contempt of court. The contempt proceedings may be civil or criminal, or both. A defendant may be purged of civil contempt by complying with the court order, but punishment for criminal contempt is usually not conditional. Use of civil or criminal contempt, as with civil or criminal enforcement, depends on whether the purpose is to compel compliance with the summons or to punish disobedience and protect the authority of the court.

  2. A civil contempt proceeding may be commenced by a motion requesting that the person summoned be adjudged in contempt and punished. The recalcitrant party may then be committed to jail until he or she complies with the court order.

  3. A criminal contempt proceeding can be undertaken only on notice given by the judge in open court in the presence of the defendant, by an order to show cause, or by an order of arrest, unless the contempt was committed in the presence of the court. The notice must state essential facts, which constitute criminal contempt and describe the criminal contempt as such.

  4. For criminal contempt, the government must prove beyond a reasonable doubt that the defendant willfully failed to comply with a lawful court order and show that summoned records are presently within the defendant’s power and control. Presumption of continued possession and existence is not enough to shift the burden of proof to the defendant unless the time span is short and there is no outside motivation for destruction of the particular records.

Use of Declarations in Summons Proceedings

  1. To support applications for court orders directing compliance with a summons, prepare a declaration (see IRM Exhibit 25.5.10-3, Sample of a Declaration) detailing the nature and purposes of the examination, the testimony and records desired, and their relevancy. Enforcement proceedings are usually held solely upon declarations and oral argument. The declaration must show the person summoned has possession, care, or custody of the desired records and the records are material and relevant to the tax liability of the person being investigated. If the summons pertains to a year previously examined, attach a copy of the Area Director’s reopening letter. Some courts may require an affidavit under oath with the same basic information.

  2. If the declarations sharply dispute whether the records are subject to the control of the summoned person, the court will usually resolve the issue in the summons enforcement proceeding. When a petition for enforcement is filed, the court may choose to proceed by issuing an order to show cause why the summons should not be obeyed. It may also modify the summons if compliance would be unreasonable or oppressive.

Criminal Enforcement of Summons

  1. A person who neglects to appear or to produce records pursuant to a summons may be criminally prosecuted under IRC 7210. The government must be able to prove that:

    1. The defendant was duly summoned to appear to testify or to appear and produce certain records.

    2. The defendant did not appear or produce such records.

    3. At least some of the records called for by summons were in existence and in the defendant’s control.

    4. The defendant willfully and knowingly neglected to appear and produce them.

  2. It has been held that neglect as used in IRC 7210 means more than mere inadvertence. To make a criminal offense of neglect in this situation would imply that the person summoned must have:

    1. Willfully failed to comply with the summons; and

    2. Knowledge that he or she was failing to do what the summons required him or her to do.

  3. Refusal to obey a summons could lead to a prosecution under IRC 7203 for willful failure to supply information required by the law.

  4. Requests for criminal action for failure to obey summonses issued by the civil functions will be referred by the appropriate Field Territory Manager to CI for evaluation. No attempt should be made to enforce obedience with the summons while criminal action is being considered. If CI does not initiate an investigation, CI will notify the Field Territory Manager of the referring function, and thereafter the referring function may then make a referral to the respective civil Counsel for civil enforcement action.

  5. If CI determines that criminal action for failure to obey a summons will be undertaken (rather than enforced obedience), the matter will be assigned for criminal investigation. No attempt should be made to enforce obedience with the summons while considering criminal action.

  6. Prepare final reports that recommend or do not recommend criminal action for failure to obey summonses in accordance with the discontinued report guidelines. When a discontinued recommendation is approved by the Special Agent in Charge (SAC) or Assistant Special Agent in Charge (ASAC), CI, in a case referred by a civil function for criminal action for failure to obey a summons, the Field Territory Manager of the referring function will be advised in writing by the SAC, CI. The Field Territory Manager of the referring function may then forward the matter to the respective civil Counsel for civil enforcement action.

Protest Procedures in Civil Enforcement Cases

  1. If the Associate Area Counsel contemplates disapproving a request for civil enforcement of any summons, an informal conference may be arranged between the Field Territory Manager and the Associate Area Counsel for the purpose of clarifying the available evidence or for discussing the merits of the proposed legal action.

  2. If the Associate Area Counsel still disapproves or no agreement is reached, Counsel will prepare a memorandum for the Field Territory Manager, setting forth the reasons for concluding that legal action should not be instituted. A copy will also be sent to the Director, Field Operations (CI or LB&I), or the Area Director (Collection/Exam/TE/GE), as appropriate.

  3. Upon receipt of the Associate Area Counsel’s memorandum, the Field Territory Manager may choose to prepare a report setting forth his or her views. The Field Territory Manager’s memorandum will be forwarded to the Director, Field Operations (CI and LB&I), or the Area Director (Collection/Exam/TE/GE), within 14 days of receipt of Counsel’s memorandum. A copy of the memorandum will be forwarded to Associate Area Counsel, or the appropriate CT Counsel office.

  4. Within 30 days from the receipt of the Field Territory Manager’s memorandum, the Director, Field Operations (CI or LB&I), or the Area Director, (Collection/Exam/TE/GE), will inform the appropriate Division Counsel and the Associate Chief Counsel (Procedure & Administration), in writing of his or her disagreement with the Associate Area Counsel. A copy of the Field Territory Manager’s report should be forwarded with this memorandum. If a disagreement then exists between Division Counsel and Associate Chief Counsel (Procedure & Administration), the disputing offices should resolve their dispute by observing the directives in CCDM 31.1.4.6, Reconciliation of Disputes.

  5. In the case of a third party summons where the noticee has filed a petition to quash the summons and Associate Area Counsel determines that the summons should not be defended, arrange an informal conference with the Field Territory Manager as quickly as possible. If no agreement is reached, the above protest procedures will be followed telephonically, as quickly as possible. Petition to quash cases must be handled as expeditiously as possible since an answer must be timely filed in response to the petition to quash.

Protest Procedures in Criminal Enforcement Cases

  1. The processing and protest procedure as set out in CI IRM 9.5, Investigative Process, with respect to other prosecution cases will be followed in summons cases involving requests for criminal action.

Reports on Adverse Decisions in Civil Proceedings to Enforce Compliance with Summons

  1. If the IRS receives an adverse decision in any civil summons enforcement proceeding, the Field Territory Manager of the function that issued the summons will promptly send a brief report of the proceeding to the Area Director (Collection/Exam/TE/GE), or to the Director, Field Operations (CI or LB&I). Copies of the report must be immediately sent to the Associate Area Counsel office serving that area and to the Associate Chief Counsel (Procedure & Administration CC:PA:BR6&7) to enable these offices to consider pursuing a timely appeal.

  2. When the Government appeals an adverse summons enforcement decision, the division that issued the summons must promptly inform Associate Chief Counsel (Procedure & Administration) of any developments affecting the summons enforcement proceeding. Examples of information which must be reported are set forth above in IRM 25.5.10.4.1.2(6), Preparation of Summons Referral, and IRM 25.5.10.4.2(5), Criminal Investigation.

Attempts to Quash Summons

  1. Except as provided by IRC 7609(b)(2) (right to proceeding to quash), no party has a right to enjoin or quash a summons. Any such attempt to quash a summons through injunction proceedings or other court action before the date fixed for compliance should be immediately reported through normal channels to the Associate Area Counsel. Make every effort to obtain copies of the pleadings involved so they can be forwarded with the notification memorandum.

  2. Notwithstanding any other law, any person who is entitled to notice of a summons shall have the right to begin a proceeding to quash such summons. The proceeding to quash the summons must begin no later than the 20th day after the day proper notice is given to the noticee.

  3. Neither the witness nor the taxpayer has a right to enjoin or quash a third-party summons not subject to the notice requirements. Reisman v. Caplin, 375 U.S. 440 (1964).

Form 4443, Summons Referral

Form 4443 is an internal IRS document. The document can be found at http://core.publish.no.irs.gov/forms/internal/pdf/f4443--1993-02-00.pdf.

Letter to Summoned Person from Associate Area Counsel

(USE ASSOCIATE AREA COUNSEL LETTERHEAD)

Person to Contact (Name of IRS employee and title)

Telephone Number

Date

Date summons served

Appearance date as specified in summons

Taxpayer’s name (if not person summoned)

The Area Director of (your Internal Revenue Service area) has notified me that you did not provide the documents or testimony required by the summons identified above. Legal proceedings may be brought against you in the United States District Court for not complying with the summons. To avoid such proceedings, you should keep the appointment we have arranged for you with (insert title and name) on the date and at the time and address shown below. Please be sure you bring with you all records and documents specified in the summons. If you have any questions, please contact the person named above at the address or telephone number shown.

Sincerely yours,

Associate Area Counsel

Date of your appointment

Time

Address

Sample of a Declaration

IN THE UNITED STATES DISTRICT COURT DISTRICT FOR THE (NAME OF THE JUDICIAL DISTRICT)

United States of America and (Name and Title of Revenue Agent/Revenue Officer/Special Agent), Petitioners v.

(Name of summoned party), Respondents

CIVIL ACTION NO. (Leave Blank)

DECLARATION

(Name of IRS employee), petitioner herein, declares:

  1. Paragraph (1): I am a duly commissioned Revenue Officer/Revenue Agent/Special Agent employed in the (Collection/Examination/Criminal Investigation) of the Office of the (Area Director of Internal Revenue Service) (Director, Field Operations) at (address of office where assigned).

  2. Paragraph (2): In my capacity as a Revenue Officer/Revenue Agent/Special Agent, I am conducting an investigation (into the tax liability of) (for the collection of the tax liability of) (name of taxpayer) for the (year(s)) (taxable period(s)).

  3. Paragraph (3): In furtherance of the above investigation and in accordance with Section 7602 of Title 26, U.S.C., I (or name and title) issued on (date) an administrative summons, Internal Revenue Service Form (number) to (name of summoned persons), (to give testimony) (and) (to produce for examination books, papers, records, or other data as described in said summons). The summons is attached to the Petition as Exhibit ().

  4. Paragraph (4): In accordance with Section 7603 of Title 26, U.S.C., on (date) I served an attested copy of the Internal Revenue Service summons described in Paragraph (3) above on the respondent, (name of summoned person) by (specify manner of service), as evidenced in the certificate of service on the reverse side of the summons.

  5. Paragraph (5): On (date), I served the notice required by Section 7609(a) of Title 26, U.S.C., on (person(s) entitled to notice), by (show manner of service, i.e., personal; left at last and usual place of abode; sent by registered or certified mail; or left with the person summoned), as evidenced in the certificate of service of notice on the reverse side of the summons.

  6. Paragraph (6): On (date), the respondent, (name of summoned person), (did not appear in response to the summons) (appeared but refused to comply with the summons by not producing the books, records, and other documents demanded in the summons or by not giving testimony as to the matters requested in said summons) (failed to appear because notice not to appear had been given in accordance with Section 7609(b)(2) of Title 26, U.S.C.). The respondent’s refusal to comply with the summons continues to the date of this declaration.

  7. Paragraph (7): The books, papers, records, or other data sought by the summons are not already in possession of the Internal Revenue Service (except as follows: (specify any summoned materials that have been obtained since the summons was served)).

    Note:

    Paragraph (7) is a general provision. However, in the event the IRS does have some of the summoned material at the time of enforcement proceeding, those materials should be excepted. Where the summons seeks Forms W-2, 1099, or other items which the IRS technically may have in its possession, but are not available, the paragraph should be modified to include a statement to the effect that these items are not readily accessible or retrievable without undue administrative burden or expense, together with an explanation thereof.

  8. Paragraph (8): All administrative steps required by the Internal Revenue Code for issuance of a summons have been taken.

  9. Paragraph (9): It is necessary (to obtain the testimony) (and) (to examine the books, papers, records, or other data) sought by the summons in order (to properly investigate) (to collect) the federal tax liability of (name of taxpayer) for the year(s) (for taxable period(s)). I declare under penalty of perjury that the foregoing is true and correct.

  10. No Justice Department referral, as defined by 26 U.S.C. Section 7602(d)(2), is in effect with respect to (name of taxpayer) for the years under investigation.

Executed this day of XX, 20XX.

(Name of Person Seeking Enforcement)

If the IRS employee is using a pseudonym, the following statement must be inserted at the end of paragraph a): (____________) is not my real name. I use a pseudonym in my official capacity as an employee of the IRS. This pseudonym, used for privacy and safety reasons, has been registered with the IRS, in accordance with IRS procedures (Internal Revenue Manual 10.5.7, Use of Pseudonyms by IRS Employees), and all IRS procedures governing the use of pseudonyms.

The appropriate title changes should be made in preparing the declaration. Only one declaration should be prepared where more than one IRS employee is involved in issuing, service, or designation as the party before whom the summoned party is to appear. In such cases, paragraphs 4, 5, and 6 should be modified as illustrated below:

  • Paragraph (4): I have been advised by (specify title and name of person serving summons), that on (date), in accordance with Section 7603 of Title 26, U.S.C., (s) he served an attested copy of the Internal Revenue Service summons described in Paragraph (3) above on the respondent (name of summoned person) by (specify manner of service). This is further evidenced in the certificate of service on the reverse side of the summons.

  • Paragraph (5): On (date), the notice required by Section 7609(a) of Title 26, U.S.C., was served by (specify title and name of person serving notice) on (specify person(s) entitled to notice) by (specify manner of service, i.e., personal; left at last and usual place of abode; sent by registered or certified mail; or left with the person summoned). I have been apprised of this by (specify title and name of person serving notice), and it is further evidenced in the certificate of service of notice on the reverse side of the summons. Paragraph (5) should be used when a summons is directed to a third-party entitled to notice of the summons under IRC 7609(a).

  • Paragraph (6): I have been informed by (specify title and name of person designated as the individual before whom the summoned party was to appear), that on (date), the respondent, (name of summoned person), (did not appear in response to the summons) (appeared but refused to comply with the summons by producing the books, records and other documents demanded in the summons or by giving testimony as to the matters requested in said summons) (failed to appear because notice not to appear had been given in accordance with section 7609(b) (2) of Title 26, U.S.C.). The respondent’s refusal to comply with the summons continues to the date of this declaration.