Part 5. Collecting Process
Chapter 20. Abusive Tax Avoidance Transactions (ATAT)
Section 4. Summons Procedures
November 07, 2016
(1) This transmits revised IRM 5.20.4, Abusive Tax Avoidance Transactions (ATAT), Summons Procedures.
(1) IRM 188.8.131.52(3): updated IRM citation for third party contacts.
(2) IRM 184.108.40.206(4): updated link.
(3) IRM 220.127.116.11(9): updated IRM citation for taxpayer recording of interviews.
Acting Director, Collection Policy
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 18.104.22.168.3(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 -
In cases where a revenue officer is working concurrently with an examiner on an investigation and no assessment has been made, the revenue officer must ensure a proper Letter 3164, Third Party Contact Letter, has been issued by the examiner prior to issuing a third party summons. Refer to IRM 5.20.3, Third Party Contacts.
When the revenue officer is assigned a balance due account and there is a concurrent Examination assignment, coordinate summonses to avoid summoning records that are already in the possession of IRS employees.
Summoned records can be shared between Collection and Examination in most cases. However, any summons issued for collection purposes should be limited in focus to materials or testimony related to collecting the tax. For instance, when a collection summons seeks information regarding a taxpayer's customers, the focus should be on types of customer records and time periods for these records that may reflect a current levy source for payment of the taxpayer's assessed, but unpaid, taxes.
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 22.214.171.124.2, 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 126.96.36.199, 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 188.8.131.52 through IRM 184.108.40.206.
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 220.127.116.11, 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 18.104.22.168.1, Scope of the Exception For Summonses Issued in Aid of Collection, for additional information.
The revenue officer should document the case file with the facts that support his/her position that a nominee or alter ego situation exists. The documentation should clearly state the nexus relationship that exists between the taxpayer and the information summoned. If there is a question regarding nexus, contact Area Counsel through Advisory.