25.5.11  Title 31 Bank Secrecy Act Summons

Manual Transmittal

June 11, 2015


(1) This transmits a revision to IRM 25.5.11, Summons,Title 31 Bank Secrecy Act Summons.

Material Changes

(1) IRM 25.5.11 title changed and chapter updated throughout with current references and form numbers.

(2) IRM added Overview section.

(3) IRM renumbered General from, General, Updated who has civil Bank Secrecy Act (BSA) compliance authority and changed references to the revised Bank Secrecy Act Summons form.

(4) IRM renumbered from, Contents.

(5) IRM replaced references to TDF 90-22.31 with FinCEN Form 113 and removed references to Attachments I, II and III. The new FinCEN Form 113 only has one Attachment. Added definition of FBAR.

(6) IRM removed step-by-step procedures for the Title 31 Summons, and refers readers to IRM, Title 31 Summons, for summons procedures used in BSA.

(7) IRM added reference to IRM, Delegation Order 25-3, Enforcement of Report of Foreign Bank and Financial Accounts (FBAR).

(8) IRM added references that a customer's Motion to challenge government's access to financial records will be in the United States District Court.

(9) IRM clarified customer can file a motion to challenge the government's access to financial records.

(10) IRM clarified what form to use for witness expenses and added reference to IRM, Claims for Witness Fees and Travel Expenses.

(11) IRM added transmittal path to local Area Counsel before transmitting to the appropriate U.S. Attorney's office.

(12) IRM clarified disclosure procedures when issuing a Title 31 summons when no related statute determination has been made.

(13) Exhibit 25.5.11-1 replaced Attachment I with Attachment for FinCEN Form 113. Also added note that certain rules did not apply if a related statute determination has been made.

(14) Deleted Exhibit 25.5.11-2. Removed Attachment II. FinCEN Form 113 only has one attachment.

(15) Deleted Exhibit 25.5.11-3. Removed Attachment III. FinCEN Form 113 only has one attachment.

Effect on Other Documents

This IRM supersedes IRM 25.5.11 dated December 20, 2011.


All operating Divisions and Functions

Effective Date


Signed by Kristen Bailey
Acting Director, Collection Policy  (06-11-2015)

  1. This IRM provides an overview of the Bank Secrecy Act (BSA) Title 31 summons. The BSA is to safeguard the financial system from abuses of financial crime, including terrorist financing, money laundering and other illicit activity. This IRM is written for Examination, Collection and Criminal Investigation employees. Refer to the chapters in IRM 4.26, Bank Secrecy Act, for additional information on BSA examinations.  (06-11-2015)

  1. Fraud/BSA is delegated authority to examine for civil BSA compliance. Criminal Investigation (CI) has some responsibility for use of Title 31 summonses in relation to processing civil forfeitures predicated on Title 31 violations. The use and enforcement of the Title 31 summons is provided for by the following:

    1. Title 31 USC §5318,

    2. Title 31 CFR Chapter X Subpart I, and

    3. Title 12 USC § 3405 (Right to Financial Privacy Act)


      A Title 26 summons, Form 2039, Summons, cannot be used for a Title 31 criminal investigation. Likewise, 31 USC § 5318(b)(1) restricts the use of Title 31 summonses to civil enforcement of the Bank Secrecy Act and certain other statutes.

  2. IRC §§ 6103(b)(4) and (h)(1) together permit disclosure of Title 26 information to IRS employees conducting Title 31 examinations when there is a good faith determination that a Title 31 violation is related to the administration of the Internal Revenue Laws. The key factors to consider are whether the Title 31 offense was committed in furtherance of a Title 26 violation or was part of a pattern to violate the provisions of Title 26. Once a related statute call is made, IRC §§ 6103(b)(4) and (h)(1) allow IRS employees whose official duties require access to tax returns and tax return information, to use the information in an examination under Title 31. The information gathered in the Title 31 investigation from this point forward is subject to the disclosure rules under IRC § 6103. A related statute determination is based on a "good faith" judgment that the BSA violation was in furtherance of the Title 26 violation. A related statute determination should be demonstrated by tangible objective factors and supported by adequate documentation. The determination must be made in writing and is noted on a related statute memorandum. Refer to IRM, Related Statute Procedures, for necessary actions to obtain a related statute determination.

  3. Title 31 CFR 1010.912 provides that the Chief, CI, or a delegate thereof can only issue a Title 31 summons for the purpose of perfecting civil seizures and forfeitures related to violations of the BSA reporting requirements except with respect to the Currency and Monetary Instrument Reports (CMIRs).

  4. A Title 31 Summons, FinCEN Form 113, Bank Secrecy Act Summons, may be issued for the examination of books and records and or witnesses to:

    1. A financial institution (as defined in 31 CFR 1010.100);

    2. An officer or employee of a financial institution, including a former officer or employee; or

    3. Any person having possession, custody, or care of any of the records and reports required under the Bank Secrecy Act or Title 31 CFR Chapter X.

  5. A Title 31 summons may not be issued after a Service related criminal referral has been made to the U.S. Attorney’s office or to the DOJ Tax Division. A criminal referral in this context means a Service initiated request, attorney for the government grand jury request, or Service prosecution recommendation. A Title 31 summons may be issued however, after declination by DOJ or final adjudication of a related Title 31 criminal investigation.

  6. A Title 31 summons cannot be used as a tool in a criminal investigation. The Service employee assigned to perfect a Title 31 forfeiture:

    1. Must not work on any criminal investigation related to the forfeiture, and

    2. Must be able to articulate that no leads or investigative steps to establish criminal conduct were obtained or taken with the use of a Title 31 summons.

  7. Evidence of a crime discovered during civil forfeiture perfection via the Title 31 summons can be used for criminal purposes. The grand jury cannot be used to perfect civil forfeitures, but information developed in the normal course of a grand jury investigation can be used for forfeiture purposes pursuant to Title 18 of the United States Code. (However, grand jury information cannot be used for administrative matters.)

  8. The Title 31 summons is subject to the Right to Financial Privacy Act, Title 12 USC §§ 3401–3422. Title 12 USC § 3405 requires that notice be given to the customer whose financial records are sought to allow opportunity for filing of a motion to challenge the summons. Title 12 USC § 3409 provides that the customer notice can be delayed up to 90 days upon application to a judge or magistrate under certain conditions, e.g., notice would seriously jeopardize an investigation.  (04-30-1999)

  1. The portions to be completed on a Title 31 summons, including the certificate of service, are self explanatory. A summons for books and records requires that the place for appearance shall not exceed 500 miles from where the financial institution operates or conducts business in the United States.  (12-20-2011)
Review of Title 31 Summons Prior to Issuance

  1. Prior to issuance of a Title 31 summons, a review process must be completed.  (06-11-2015)
FBAR Title 31 Issuance

  1. The Report of Foreign Bank and Financial Accounts (FBAR), is required when a U.S. Person has a financial interest in or signature authority over one or more foreign financial accounts with an aggregate value greater than $10,000. If a report is required, certain records must also be kept. When a Title 31 summons is required, the examiner should prepare a cover memo for the summons package. The memo is addressed from the examiner through the Group Manager and SB/SE Associate Area Counsel to the Territory Manager. The memo should:

    1. Provide a brief history of the case;

    2. Describe the potential BSA violations; and

    3. State if the party being summoned indicated whether he or she will or will not comply with the summons.

  2. The summons package forwarded for review should include:

    1. The transmittal memorandum and any attachments to the memorandum;

    2. The summons memorandum narrative;

    3. Copy of the first page of the summons (FinCEN Form 113, Bank Secrecy Act Summons);

    4. Attachment to summons.

  3. SB/SE Associate Area Counsel will review the summons and

    • If disapproved, Counsel and the examiner will work together to resolve.

    • If approved, Counsel will prepare a memorandum to the Territory Manager approving issuance of the Title 31 summons.

  4. The Territory Manager will sign (issue) the FBAR summons after receiving the memo from Counsel. The Territory Manager will return the summons package to the BSA examiner for service of the summons.  (06-11-2015)
BSA Title 31 Issuance

  1. A summons issued by BSA has a unique internal clearance process.

  2. Please see IRM, Title 31 Summons, for summons procedures used in BSA.  (06-11-2015)

  1. Any delegate of the Secretary authorized to issue a Title 31 summons, or any other person authorized by law to serve a summons or other process, may serve a Title 31 summons. The person summoned is given Part A of a Title 31 summons. See IRM, Delegation Order 25-13, Enforcement of Report of Foreign Bank and Financial Accounts (FBAR) Requirements.

  2. Service of a Title 31 summons may be made on any person by personal delivery or by registered, return receipt mail; or upon any other person by delivery to an officer, managing or general agent, or any other agent authorized to receive service of process.  (06-11-2015)
Customer Notice Requirements

  1. Notice to a customer whose records are being sought via a Title 31 summons applies only to records of customers of any office of the following institutions located in any state or territory of the United States, Puerto Rico, Guam, American Samoa, or the U.S. Virgin Islands:

    1. Bank

    2. Credit Card Issuer

    3. Loan or Trust Company

    4. Savings and Loan

    5. Homestead Association (including cooperative banks)

    6. Credit Union

    7. Consumer Finance Institution

  2. If customer notice is required, the customer must be given the summons in person or by mail, on or before the date of service of the summons (except if a delay of notice order was granted). The following parts of the Title 31 summons are provided as notice:

    1. Part B (copy of summons)

    2. Part C (Customer Notice)

    3. Part C–1 (Directions for completing and filing the attached motion and sworn statement)

    4. Part C–2 (Customer’s Motion to Challenge Government’s Access to Financial Records in the United States District Court)

    5. Part C–3 (Customer’s Sworn Statement for Filing a Challenge in the United States District Court)  (12-20-2011)
Delay of Customer Notice

  1. If the customer whose records are being sought is expected to take action to jeopardize the investigation, 12 USC § 3409 provides that the required customer notice can be delayed for up to 90 days upon application to a judge or magistrate judge through a civil Assistant U.S. Attorney. The customer must be notified of the summons upon expiration of the delay granted by a judge. Notification can be completed in person or by regular mail by delivering a completed Part E with Part B of the summons. In this instance, Parts C, C–1, C–2, and C–3 are not given to the customer. The time and place of examination must still be adhered to in obtaining the records.  (12-20-2011)
Certificate of Compliance with the Right to Financial Privacy Act 1978

  1. If customer notice is required, a completed Part D of the summons must be given to the financial institution prior to receiving the financial records. The examiner should complete Part D at the time the original summons is completed.  (06-11-2015)
Date When Records Can Be Obtained After Issuance of Summons

  1. The customer has 10 days to file the motion to challenge the government's access to financial records if the customer notice was in person, or 14 days from the date of mailing. The records may be obtained from the financial institution upon expiration of the applicable time frame if the customer has not filed a motion with the court and served the issuing agency.  (04-30-1999)
Notice That No Legal Proceedings are Contemplated

  1. If customer notice is required, the completed Part F of the summons must be given promptly to the customer if and when a determination is made that no legal proceeding against the customer is contemplated.  (06-11-2015)
Notice of Transfer of Financial Records to Another Department or Agency and Certification for Transferring Records

  1. If customer notice is required and the records obtained are transferred pursuant to 31 CFR 1010.520, a notice of transfer must be given to the customer by completing Part H of the summons and personally handing or mailing it to the customer. A certificate of the transfer is made by completing Part G and keeping it with the original summons.  (06-11-2015)
Examination of Books and Witnesses

  1. Any person authorized to issue a Title 31 summons, or any officer or employee of the Treasury Department, or their designee, may receive evidence and examine witnesses pursuant to a Title 31 summons. Any person authorized by law may administer any required oaths and affirmations. Testimony of any person may be taken under oath, and shall be written down or transcribed if under oath. A transcript copy shall be given to a witness upon request, unless the person issuing the summons determines under 5 USC § 555, that a copy should not be provided, in which case the witness may only inspect the official transcript.  (12-20-2011)
Time and Place of Examination

  1. Title 31 CFR 1010.911 through 1010.917 does not state how much time a person summoned should be given to produce records or to give testimony. If the information is needed quickly, a short time for production is appropriate when absolutely necessary. Otherwise, give a longer period of time so the request is not burdensome.

  2. If customer notice is required prior to obtaining the records, then the time of examination must not be before the expiration of the time allowed for the customer to file a motion to challenge the summons. The customer has 10 days to file the motion if the notice was in person or 14 days from the date of mailing.  (06-11-2015)
Payments of Title 31 Summons Expenses

  1. Title 31 CFR 1010.917 states that persons summoned with a Title 31 summons shall be paid the same fees and mileage for travel in the United States that are paid witnesses in the U.S. courts. The government is not liable for any other expenses incurred for the production of books, papers, records or other data per 31 USC § 5318(c)(3). Standard Form 1157, Claims for Witness Attendance Fees, Travel, and Miscellaneous Expenses, may be used for this purpose. See IRM, Claims for Witness Fees and Travel Expenses, for additional information.  (12-20-2011)

  1. In the case of noncompliance with a Title 31 summons, the matter shall be referred by the Special Agent in Charge (SAC), Criminal lnvestigation, or by Examination, to the U.S. Attorney. The U.S. Attorney may bring an action to compel compliance in any U.S. court within the jurisdiction:

    1. In which the investigation that gave rise to the summons is or has been carried on;

    2. In which the person summoned is a resident; or

    3. In which the person summoned carries on business or may be found.

  2. When a referral is made for enforcement of a Title 31 summons, prompt notification must be made through the SB/SE Liaison to FinCEN's Associate Director, Office of Regulatory Policy and Programs Division.

  3. Prepare requests for enforcement of a Title 31 summons using the memorandum report format, to include the following information:

    1. The name and full address of the person whose property may be subject to seizure;

    2. A summary of the pertinent facts in the investigation;

    3. Exactly what the Service employee is seeking to obtain;

    4. The relevancy of the records sought, including the relevancy of records pertaining to third parties;

    5. The need or importance of such evidence to the success or completion of the investigation;

    6. If a corporation was summoned, a statement of whether service of the summons has been made on a responsible officer and, if not, why not;

    7. The circumstances surrounding contacts with the person summoned, explaining the defense(s) claimed for refusing to comply with the summons, and the circumstances under which the person summoned claimed the defense(s);

    8. A transcript (if recorded) of the questions asked to the person summoned and the person’s responses;

    9. A description of any problems involving the imminent expiration of the statutes of limitation with respect to the seizure or forfeiture;

    10. A statement as to any known criminal investigations by other federal agencies of the individual, and, in the case of a corporation, corporate officers or employees;

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

    12. If a pen register or any other electronic device was used in the investigation prior to the issuance of the summons, a statement why such device was used.

  4. Approval is indicated by the signature of the official authorized to issue the summons. Transmit the original and one copy of the summons through the Area Director or designee, to local Area Counsel for referral to the appropriate U.S. Attorney’s office.

  5. The court may issue an order requiring the person summoned to appear before the Secretary or delegate to produce documentation or to give testimony explaining how the documentation was compiled and maintained, and to pay the costs of the proceeding. Any failure to obey the order of the court may result in a contempt charge. All processes in any case under this section may be served in any judicial district in which such person is found.  (06-11-2015)

  1. Except as noted below, when issuing a summons involving only a Title 31 issue (i.e. no related statute determination has been made), no officer or employee of the Treasury Department or any component thereof shall:

    1. Publicly name any person to whom a summons has been issued, or release any information to the public concerning that person or the issuance of a summons prior to the time and date set for the appearance or production of records.

    2. Disclose any testimony or material summoned (including the name of the witness) to anyone other than an officer or employee of the Department of the Treasury. This nondisclosure position does not preclude any officer or employee of the Department of the Treasury from disclosing material presented to obtain necessary information for investigative purposes. Any disclosure of tax information must be in accordance with the provisions of IRC § 6103 as explained in this text and IRM 11.3, Disclosure of Official Information Handbook.

  2. Except as provided above, disclosures must be approved by FinCEN. A written request for disclosure must be submitted to the Chief, BSA Policy and Operating for forwarding to the Associate Director, Office of Regulatory Policy and Programs, FinCEN.


    The rules above do not apply if a related statute determination has been made. Where a related statute determination has been made, the information collected or generated in that investigation is protected by IRC § 6103 and any subsequent disclosures must be authorized by that code section.

Exhibit 25.5.11-1 
Attachment FinCEN Form 113, Bank Secrecy Act Summons


TO: (Full legal name and address as listed in Item 1 of FinCEN Form 113)

RE: (Full legal name and address of the financial institution(s) under examination. If there is an agency relationship, include the agent license. List each location separately.)


The term "document" shall mean the original and any nonidentical copy of written, typed, printed, recorded, transcribed, punched, taped, filmed, or graphic matter, or sound production, however produced or reproduced, of any kind, in the possession, custody, or control of the summoned parties, regardless of where located, and includes, but is not limited to contracts, agreements, orders, diaries, correspondence, communications, memoranda, messages, reports, studies, drawings, papers, agenda, bulletins, notices, announcements, vouchers, brochures, schedules, computer printouts, statements, price lists, journals, ledgers, films, film clips, telegrams, teletypes, and magnetic or recorded tapes. In all cases where any original is not in the possession, custody or control of the summons party/parties, the term "documents" shall include any copy of the original and any nonidentical copy thereof.


In order to facilitate the handling of documents submitted pursuant to this summons, to preserve their identity, and to ensure their accurate and expeditious return, the following procedures should be observed for all such documents:

  1. Documents should be numbered consecutively.

  2. Documents should be grouped according to the individual paragraph of this summons to which they are responsive, and, within each such group, the documents should be arranged, to the extent possible in chronological order. Multi-paged documents should remain intact.

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