25.5.3. Procedures

(1) Procedures for the preparation of a summons can be found in IRM 25.5.2, Summons, Preparation. This section provides information and the proper procedures for:

• Service of Summons

• Designated Summons

• Time and Place of Examination Set by Summons

• Records on Encrypted Storage Media

• Electronic Summons Processes

(2) Various summons forms are discussed throughout this section. Form 2039, Summons, consists of six parts:

1. Original Summons with the Service of Summons, Notice, and Recordkeeper Certificates on the reverse side;

2. Part A Summons (Attested copy), with the text of pertinent Internal Revenue Code (IRC) provisions on the reverse side;

3. Part B Notice of Payment Information for Recipients of IRS Summons with the text of IRC § 7609 on the reverse side;

4. Part C Summons Noticee's Copy with the text of pertinent IRC provisions on the reverse side;

5. Part D notice explaining the right to contest the administrative summons, with the text of IRC § 7609 on the reverse side; and

6. Part E Suspension of Corporate Taxpayer’s Period of Limitations on Assessment If a Court Proceeding is Brought Regarding a Designated or Related Summons, to be given to the corporate taxpayer if the summons is a designated or related summons with the text of IRC § 6503(j) on the reverse side.

   Note: General instructions for preparation of a summons are found in IRM Exhibit 25.5.2-1, General Instructions for Preparation of a Summons.

(3) The following specialized summons forms are available for specific purposes. (Form 2039 may be used by all authorized personnel for all purposes.)

1. Form 6637, Summons Collection Information Statement, (generally served only by Collection personnel on the taxpayer to collect an assessed tax). This form contains the Original and Parts A and B.

2. Form 6638, Summons Income Tax Return, (generally served only on the taxpayer to secure the documents and records necessary for IRS to prepare a Federal income tax return). This form contains the Original and Parts A and B.

3. Form 6639, Financial Records Summons, (may be served on third parties; give notice as required by IRC § 7609). This form contains the original and Parts A through D.

(1) IRC 7602 provides the IRS with summons authority. See IRM 5.17.6.2.1, Statutory Authority.

(2) IRC 7609 provides the IRS with special procedures for third-party summonses.

(3) Delegation Order 25-1, provides the levels of authority delegated to various IRS employees to approve and perform activities concerning summonses. See IRM 1.2.2, Servicewide Delegation Orders.

(1) Paragraph (9) in Delegation Order 25-1, lists the employees authorized to issue, serve, and enforce a summons. See IRM 1.2.2, Servicewide Delegation Orders.

(2) The approval of the issuing officer's manager, or any supervisory official above that level is required on a summons to a third-party witness, except that such approval is not required for a third party summons issued by a special agent. See paragraph (8) in Delegation Order 25-1. The approval is evidenced by the supervisor's signature on the summons, or by a statement on the summons, signed by the issuing officer, that he or she had prior authorization to issue the summons and stating the name and title of the authorizing official and date of authorization.

(1) In general, the IRS should issue summonses only when the information is not already in the IRS’s possession, and the taxpayer (or other witness) will not produce the desired records or other information voluntarily. A summons is specific to each case. There are no program reports that track summonses to third-party witnesses.

(1) The IRS employee who issued the summons keeps a copy of the original summons, Page 1 of the summons labelled "Original." The original summons is needed when referring a summons for enforcement. See IRM 25.5.10, Enforcement of Summons.

(1) The table below lists commonly used acronyms and their definitions.Acronyms

(1) The sections in IRM 25.5, Summons, are:

• IRM 25.5.1, Introduction

• IRM 25.5.2, Preparation

• IRM 25.5.3, Procedures

• IRM 25.5.4, Examination of Books and Witnesses

• IRM 25.5.5, Summons for Taxpayer Records and Testimony

• IRM 25.5.6, Summonses on Third-Party Witnesses

• IRM 25.5.7, Special Procedures for John Doe Summonses

• IRM 25.5.8, Use of Summons Special Applications

• IRM 25.5.9, Fees and Costs for Summoned Witnesses

• IRM 25.5.10, Enforcement of Summons

(2) The basic legal concepts governing the use and enforcement of administrative summonses can be found in IRM 5.17.6, Legal Reference Guide for Revenue Officers, Summonses.

(3) The Taxpayer Bill of Rights (TBOR) lists rights that already exist in the tax code, putting them in simple language and grouping them into 10 broad categories. Employees are responsible for being familiar with and acting in accordance with taxpayer rights. See IRC 7803(a)(3), Execution of Duties in Accord with Taxpayer Rights. For additional information about the TBOR, see https://www.irs.gov/taxpayer-bill-of-rights, and Policy Statement 1-236 in IRM 1.2.1, Servicewide Policy Statements.

(4) Additional summons guidance can be found on the Summons Knowledge Base, https://portal.ds.irsnet.gov/sites/vl053/pages/default.aspx.

(1) To serve a summons in another area:

• Collection should issue an Other Investigation (OI) — Summons Activity, via ICS for service of the summons in the receiving area.

• Exam and Tax Exempt & Government Entities should use Form 6229, Collateral Examination, to send the summons to the other area to request that it be served. Refer to Collateral Examinations in IRM 4.2, General Examining Procedures for additional information.

• Criminal Investigation should prepare a collateral request for this purpose.

(2) The initiating area should prepare the summons for issuance. The receiving area will complete the spaces on the summons indicating the name, address, and telephone number of the IRS employee before whom the summoned party is required to appear, as well as the place and time for appearance.

(3) Collection employees should contact Advisory for guidance on serving a summons on an individual or entity located outside of the United States.

(4) Coordination and cooperation are necessary between the examining office and another area.

1. When conducting an IRC § 482 examination, it may be necessary to summon a person living or doing business in another area. If so, obtain approval to issue the summons from the Area Director for the area in which the examination is taking place.

2. If the summons crosses area lines, the originating area will forward the summons to the area requested to cooperate.

3. The examining office will provide a completed summons (if possible), and a memorandum explaining the need for the information, and the assistance needed from the cooperating office.

4. The examining office has the basic authority and responsibility for issuing the summons and for its enforcement. The cooperating office acts solely as an agent of the examining office.

5. Forward judicial enforcement requests to Associate Area Counsel where the examining office is located.

(1) In certain circumstances, documents related to foreign accounts or entities can be obtained by summons. See IRM 4.61.2 , Foreign Based Books and Records. The United States also has tax treaties and tax information exchange agreements with a number of countries pursuant to which foreign-based records can be obtained. Under these agreements, there are situations where IRS personnel will issue summonses to obtain information requested by foreign tax authorities. See IRM 4.60.1 , International Procedures, Exchange of Information. Also, see IRM 4.60.1.2.1, United States-Initiated Specific Requests for Information, for procedures regarding the processing of requests for foreign information initiated by IRS employees.

(2) Consult with Area Counsel prior to sending the summons to determine if the summons will be enforced if the taxpayer or third party does not comply. Area Counsel will coordinate with the Office of Associate Chief Counsel (International).

(1) The IRS can obtain information regarding entities and persons in the U.S. territories of American Samoa, the Commonwealth of the Northern Mariana Islands, Guam, Puerto Rico, and the U.S. Virgin Islands. Prior to issuing any summons; however, the IRS must generally notify the tax department of those territories. This notification must be made through the LB&I U.S. Territories Program..

(2) The United States has entered into tax coordination and tax implementation agreements with each of the territories. The requirement to notify the territory tax department prior to issuing a summons is found in the agreements with American Samoa, Puerto Rico and the U.S. Virgin Islands. While not required by the agreements with the Commonwealth of the Northern Mariana Islands and Guam, the IRS also provides notification to their tax departments before issuing a summons in those territories.

(3) For more information, refer to the International Knowledge Base at https://portal.ds.irsnet.gov/sites/vl008/lists/informationgathering/landingview.aspx.

(1) The following actions should be taken by Disclosure Office personnel when serving a summons in U.S. Territories:

1. Release (fax) the summons notification information to the appropriate Revenue and Tax agency; and

2. Complete the necessary IRS Disclosure and Third Party Notice accounting requirements.

(1) When a disaster or other emergency occurs and if the situation is beyond the capabilities of local and state authorities, the Governor may request that the President declare a "major disaster" or an "emergency." IRM 25.16.1, Disaster Assistance and Emergency Relief, contains an overview and service wide disaster policies.

(2) Summons procedures during a disaster for SB/SE Field Examination, Specialty Examination, and LB&I employees are included in IRM 4.2.2.4.1.3, Disaster Assistance Relief. Summons procedures for collection employees are included in IRM 5.1.12.2, Disaster Assistance and Emergency Relief.

(1) For a summons issued after August 15, 2019, the effective date of section 1207 of the Taxpayer First Act of 2019, P.L. 116-25, under amended IRC § 6503(j), to be treated as a designated summons, it must satisfy the following conditions:

1. A designated summons may only be issued to a corporation (or to any other person to whom the corporation has transferred records) as part of an examination of the corporation’s tax return for a tax period being examined under the LCC program (or any other successor to the coordinated examination program);

2. Issuance of the summons was preceded by a review and written approval of the summons by both the Division Commissioner for the operating division (LB&I) having examination authority over the taxpayer corporation and (after August 15, 2019) the Chief Counsel (formerly the LB&I Division Counsel, by regulation);

   Note: Although not required by the Code or the regulations, Counsel’s procedures call for Procedure and Administration to pre-review a designated summons. See CCDM 34.6.3.1(6)c, Review of Proposed Summonses.

3. The pre-issuance, written approval required of the Division Commissioner and the Chief Counsel must state facts clearly establishing that the IRS examination team made reasonable requests for the information that is the subject of the summons and this statement must be attached to the designated summons.

4. The summons is issued and served at least 60 days before the day the statute of limitations on assessment expires (determined with regard to extensions);

   Note: In determining whether a designated summons has been issued and served at least 60 days before the day the statute of limitations on assessment expires, the provisions of IRC § 7503 apply when the last day of the assessment period falls on a Saturday, Sunday, or legal holiday.

5. The summons states that it is a designated summons for purposes of IRC § 6503(j). Specifically, there must be a statement at the top of the summons that reads: “This is a designated summons pursuant to IRC § 6503(j).”

(2) Only one designated summons may be issued for an examination of a specific taxable year or period. A designated summons may cover more than one taxable year or period. The designated summons may require production of information that was sought in a prior summons (other than a designated summons) issued during the examination of that particular corporation if that information was not previously produced.

(1) For a summons to be a related summons underIRC § 6503, it must satisfy the following conditions:

1. A related summons must relate to the same corporate return as the designated summons;

2. A related summons must have been issued (served) during the 30-day period that begins on the day the designated summons was issued; and

3. A related summons can be issued to any person, including the person to whom the designated summons was issued, or any third person.

(2) There is no restriction on the number of related summonses that may be issued to examine the corporate return.

(3) A related summons may request the same information as the designated summons from a different witness.

(4) If the related summons is to a third party, the issuing officer's manager, or any supervisory official above that level, must approve issuing the summons. See IRM 25.5.3.1.3, Responsibilities, and paragraph (8) in Delegation Order 25-1, IRM 1.2.2, Servicewide Delegation Orders. The approval is evidenced by the supervisor's signature on the summons, or by a statement on the summons, signed by the issuing officer, that he or she had prior authorization to issue the summons and stating the name and title of the authorizing official and date of authorization.

(5) Although a related summons need not be preceded by pre-issuance, written approval by the Division Commissioner and the Chief Counsel, the government must establish in a judicial proceeding to enforce a related summons (issued after August 15, 2019) that prior reasonable requests were made by the IRS examination team for the information that is the subject of the summons, the same as for a designated summons.

(1) The taxpayer corporation’s period of limitations on assessment is suspended under IRC § 6503(j) during the judicial enforcement period relating to a designated or related summons. If the court orders any compliance with the summons, the suspension shall continue for 120 days after the close of the judicial enforcement period. If the court finds the IRS issued a designated summons, but the court nevertheless does not order enforcement with respect to the designated or related summons at issue, then the period of limitations on assessment shall not expire before the 60th day after the end of the judicial enforcement period.

(2) To properly apply this rule and correctly calculate the suspension period, it is essential to define several concepts. They are "judicial enforcement period," "court proceeding," "date when proceeding is no longer pending," "compliance," "the date compliance occurs," and "final resolution."

(1) As soon as the summoned person produces any of the information, the IRS employee will determine, consistent with the reasonable time standard discussed above in IRM 25.5.3.3.3.4, Compliance and the Date Compliance Occurs, whether the production constitutes full compliance. The IRS employee will keep contemporaneous, written records in the administrative file of all matters concerning the summoned person’s compliance or failure to comply with the summons. The purpose for keeping a written record as part of the administrative file is to establish and preserve a contemporary evidentiary basis to support the IRS’s determination of final resolution in court.

(2) If the summoned person’s production does not fully comply with the District Court’s enforcement order, either in whole or in part, the IRS employee shall promptly contact Area Counsel who will notify the Department of Justice attorney assigned to the summons enforcement action. Only after the Department of Justice attorney approves and Field Counsel has notified the IRS employee of this approval will the IRS employee contact the summoned person in writing, using Letter 5140 , Designated and Related Summons. The letter states that the production is insufficient and describes the information the summoned person must produce to comply with the court order. Mail a copy of this letter to the taxpayer (if different from the summoned person) on the same date on which it is mailed to the summoned person. Field Counsel will send a copy to the Department of Justice attorney. This letter informs both the summoned person and the taxpayer (if different from the summoned person) that the summoned person’s failure to fully comply with the court order is prolonging the suspension of the taxpayer’s period of limitations on assessment. This procedure should be followed every time the summoned person produces information pursuant to the summons.

(3) In cases in which the documents produced are voluminous, written in a foreign language, or present any other complicating factor, the IRS employee will document the particular complication in the administrative file to enable the IRS to credibly show a court why it took the time spent to determine final resolution.

(1) As stated above in IRM 25.5.3.3.3.2, Court Proceeding, for the period of limitations on assessment to be suspended under IRC § 6503(j), a court proceeding to enforce or quash a designated or related summons must be instituted within the IRC § 6501 period of limitations on assessment that otherwise applies to the corporate tax return.

(1) If more than one court proceeding is instituted to enforce or quash a designated summons or one or more related summonses concerning the same tax return, the period of limitations on assessment is suspended beginning on the date the first court proceeding is brought. The suspension ends on the date that is the latest date on which the judicial enforcement period, plus the 120 day or 60 day period (depending on whether the court requires any compliance), expires with respect to each summons.

(1) Suspensions of the period of limitations on assessment under IRC § 6501 provided for under IRC §§ 7609(e)(1) and (e)(2) do not apply to any designated or related summons under IRC § 6503(j). The suspension under IRC § 6503(j) of the period of limitations on assessment under IRC § 6501 is independent of, and may run concurrent with, any other suspension of the period of limitations on assessment that applies to the tax return to which the designated or related summons relates.

(1) The period of limitations on assessment against Corporation P, a calendar year taxpayer, for its 2007 return is scheduled to end on March 17, 2011. (Ordinarily, Corporation P's returns are filed on March 15th of the following year, but March 15, 2008, was a Saturday, and Corporation P timely filed its return on the subsequent Monday, March 17, 2008, making March 17, 2011, the last day of the period of limitations on assessment for Corporation P's 2007 tax year.) On January 4, 2011, a designated summons is issued to Corporation P concerning its 2007 return. On March 3, 2011 (14 days before the period of limitations on assessment would otherwise expire with respect to Corporation P's 2007 return), a court proceeding is brought to enforce the designated summons issued to Corporation P. On June 6, 2011, the court orders Corporation P to comply with the designated summons. Corporation P does not appeal the court's order. On September 6, 2011, agents for Corporation P deliver material that they state are the records requested by the designated summons. On October 13, 2011, a final resolution to Corporation P's response to the designated summons occurs when it is determined that Corporation P has fully complied with the court's order. The suspension period applicable with respect to the designated summons issued to Corporation P consists of the judicial enforcement period (March 3, 2011, through October 13, 2011) and an additional 120-day period under IRC § 6503(j)(1)(B), because the court required Corporation P to comply with the designated summons. Thus, the suspension period applicable with respect to the designated summons issued to Corporation P begins on March 3, 2011 and ends on February 10, 2012. Under the facts of this example, the period of limitations on assessment against Corporation P further extends to February 24, 2012, to account for the additional 14 days that remained on the period of limitations on assessment under IRC § 6501 when the suspension period under IRC § 6503(j) began.

(2) Assume the same facts set forth above in IRM 25.5.3.3.8(1) except that in addition to the issuance of the designated summons and related enforcement proceedings, on April 5, 2011, a summons concerning Corporation P's 2007 return is issued and served on individual A, a third party. This summons is not a related summons because it was not issued during the 30-day period that began on the date the designated summons was issued. The third-party summons served on individual A is subject to the notice requirements of IRC § 7609(a). Final resolution of individual A's response to this summons does not occur until February 15, 2012. Because there is no final resolution of individual A's response to this summons by October 5, 2011, which is six months from the date of service of the summons, the period of limitations on assessment against Corporation P is suspended under IRC § 7609(e)(2) to the date on which there is a final resolution to that response for the purposes of IRC § 7609(e)(2). Moreover, because final resolution to the summons served on individual A does not occur until after February 10, 2012, the end of the suspension period for the designated summons, the period of limitations on assessment against Corporation P expires 14 days after the date that the final resolution as provided for in IRC § 7609(e)(2) occurs with respect to the summons served on individual A.

(3) Field Counsel must be consulted in determining the expiration date of the period of limitations concerning all designated and related summonses.

(1) If a designated or related summons is served on a third-party, such as when a designated summons is served on a person to whom the corporation transferred its records or when a related summons is served on any third person, the third-party notice procedures of IRC 7609 apply. Give notice of the designated or related third-party summons to the taxpayer corporation.

(1) As indicated above in IRM 25.5.3.3.1(1)b), Conditions a Designated Summons Must Meet, after August 15, 2019, issuance of a designated summons must be preceded by review and written approved by both the Division Commissioner for the operating division having examination authority over the taxpayer corporation and the Chief Counsel (formerly the Division Counsel).

(2) Both designated and related summonses must be pre-approved by a Field Territory Manager or Practice Area Program Manager in the area that will issue the summonses.

1. If approved by the Territory Manager or Practice Area Program Manager, forward the summons to the Associate Area Counsel for review and coordination at the area level.

2. A memorandum should accompany the summons to the Territory Manager or Practice Area Program Manager and the Associate Area Counsel, explaining why the taxpayer refused to extend the statute of limitations for assessment. The memorandum must also detail the evidence for the proposed conclusion that the IRS examination team made prior reasonable requests for the information that is the subject of the proposed designated and related summonses. If the summons is to be issued near the end of the period permitted by IRC § 6503(j), the memorandum should explain why the summons was not issued at an earlier date. In addition, the memorandum should contain sufficient factual background to establish that all procedural requirements for issuing the summons have been met.

3. After securing the approval of the Territory Manager or Practice Area Program Manager and the Associate Area Counsel, forward the summons and the supporting memorandum through their respective management channels to the Chief Counsel (through Division Counsel, after August 15, 2019) and the Division Commissioner for simultaneous consideration.

4. Field Counsel will, through management channels, obtain pre-review by Procedure and Administration. See CCDM 34.6.3.1(6)c, Review of Proposed Summonses.

5. The running of the period of limitations will not be suspended underIRC § 6503(j) if no enforcement suit is filed because, for example, the designated or related summons was voluntarily complied with.

6. The statute of limitations will be suspended by filing suit to enforce a related summons, even when the taxpayer has complied with the designated summons. IRS employees must consult with Associate Area Counsel on whether the IRS should seek to suspend the statute based solely on a suit to enforce a related summons.

(3) After review, Associate Area Counsel will notify Examination whether the summons should be issued.

(1) In general, the suspension arises on the day the court proceeding is brought and continues until the day the summoned person fully complies with the enforcement order, plus an additional 120 days if the court orders compliance with any part of the summons. If the court finds the summons is a designated or related summons, but nevertheless declines to order enforcement, then the assessment statute will not expire before 60 days after the date of final resolution.

(2) In the instance of a suspended statute of limitations, Counsel will notify Examination of the filing of the suit so that the statute can be updated accordingly.

(3) The IRS employee responsible for the case will:

1. Update the statute using the alpha code: “PP” to identify the irregular statute date.

2. Remove the alpha code “PP” when the suspension expires.

3. Update the statute date when the suspension period ends.

(1) A third party may request IRS employees to serve the summons electronically through a summons portal or by fax. When the records are ready, the IRS employee returns to the summons portal to retrieve documents electronically. See IRM 25.5.3.6.2 below for electronic retrieval of records.

(2) Use of a summons portal to both serve a summons and later retrieve the documents electronically (a two-way transmission) requires a Memorandum of Understanding (MOU) between the third party and the IRS.

(3) The third party is also required to sign a waiver authorizing the IRS to electronically serve the summons through the portal. The authorization waives the IRC § 7603 service requirements.

(4) Use of a summons portal for two-way transmission requires formal approval from multiple business units, including IT Cybersecurity and Privacy.

(5) Job aids for approved electronic summons processes can be found on the Summons Knowledge Base at https://portal.ds.irsnet.gov/sites/vl053/lists/portals/landingview.aspx.

(1) The third party may request IRS employees to retrieve documents through a secure electronic summons portal.

(2) When the records are ready for retrieval, the third party notifies the IRS employee by secure email.

(3) Multiple emails may be sent by the third party’s summons process. One email contains instructions on how to retrieve the records. A URL web link to the records is embedded in the email. A second email may be sent containing a password or passcode which is used to log into the summons portal.

(4) Access to the summons portal is time limited and expires after a number of days. IRS employees are encouraged to download the records to their workstations (e.g. laptop or desktop computer) as soon as the period to quash the summons expires.

(5) For additional information, refer to the job aids for approved electronic summons processes found on the Summons Knowledge Base at: https://portal.ds.irsnet.gov/sites/vl053/lists/portals/landingview.aspx.