The purpose of this section is to address summons issues that are commonly found in Abusive Tax Avoidance Transactions (ATAT) case work. ATAT case work often requires the use of third party summonses in order to investigate and establish ownership of assets and income streams.

When serving a summons on a taxpayer or third party in collection cases involving ATAT issues, follow procedural guidance outlined in IRM 25.5, Summons Handbook, and IRM 5.17.6, Summonses, for basic legal concepts regarding the use and enforcement of administrative summonses. Managerial approval is required on all third party summonses. See IRM 25.5.1.3.3(2), Authority to Issue Summons Requiring Approval (except "John Doe" Summons), for additional information.

The requirements of IRC 7602(c), Notice of contact of third parties, must have been met prior to issuing a summons to a third party. See IRM 25.27.1, Third Party Contacts - Third Party Contact Program, for procedural requirements and exceptions.

A third-party summons can be served to obtain information from any person deemed proper including, but not limited to, banks and other financial institutions, real estate and escrow companies, internet access and service providers (to the extent allowed by the Electronic Communications Privacy Act of 1986), e-commerce entities, utility or other service organizations, and to obtain the testimony of trustees and other fiduciaries. IRM 25.5.2 Exhibits 2 through 14 provide specific wording to include on the body of Form 2039, depending on the information needed for the investigation. Additional information which may be helpful in preparing Form 2039 can be accessed on the MySB/SE Summons website at http://mysbse.web.irs.gov/Collection/toolsprocesses/Enforcement/Summons/default.aspx.

Coordination with Examination -

If there are existing unpaid assessments, a summons for information can be issued as long as the requested information is to aid in the collection of the assessment. IRC 7602(d) limits the authority of the IRS to issue summonses when there is a Department of Justice referral so coordination with Examination and Criminal Investigation (CI) is critical. The resulting information can be shared and used by other divisions of the IRS in most cases but there are exceptions. See IRM 25.5.6.5.2, Sharing Information Obtained by a Collection Summons With IRS Personnel Conducting Examinations or Criminal Investigations, for a more detailed explanation.

ATAT taxpayers may raise a defense against an issued summons citing their rights against self incrimination under the Fifth Amendment to the Constitution. This defense is not necessarily applicable in every case and when raised, the revenue officer should contact Area Counsel through Advisory for guidance on the application of the constitutional argument to a specific situation. See IRM 5.17.6.11, Constitutional Defenses, for additional discussion of constitutional defenses.

Taxpayers may raise other privilege defenses against an issued summons. Contact Area Counsel through Advisory on the application of such privilege claims. See IRM 5.17.6.13 through IRM 5.17.6.17.

A taxpayer or its representative may request to make a recording of the proceeding. Advance notice must be given at least 10 calendar days prior to the proceeding and is restricted to an audio recording. The revenue officer must also record the meeting. See IRM 5.1.12.3, Taxpayer Recording of Interviews, for procedure.

The exception to notice requirements for a third party summons issued to aid in collection of an assessed liability generally includes summonses issued to investigate a fraudulent conveyance or nominee/alter ego situation. Summonses issued to determine if transferee liability should be asserted are not exempt from third party summons notice requirements. See IRM 25.5.6.5.1, Scope of the Exception For Summonses Issued in Aid of Collection, for additional information.