9.4.5. Interviews

(1) Interviews are used to obtain leads, develop information, and secure evidence. The testimony of witnesses and the confessions or admissions of alleged violators are major factors in resolving tax investigations.

(2) During most judicial proceedings evidence is presented through the testimony of witnesses. Therefore, it is the special agent's duty to timely interview the subject and witnesses connected with the investigation and to accurately document their statements.

(1) Title 26 USC 7602 - Authorizes the Secretary or his/her delegate to examine books and records and to take testimony under oath.

(2) Delegation Order No 4 (to be renumbered as Delegation Order 25-1) authorizes a special agent to issue and serve summonses, examine books and records, question witnesses and take testimony under oath.

(3) The SAC, in assigning an investigation originating from a source other than a referral from other operating divisions, may authorize a special agent to interview the subject, the subject's representative, the subject's present employees and/or to inspect the subject's books and records. The SAC may authorize a special agent to make these inquiries independently or request the cooperation of a revenue agent or revenue officer, as appropriate, to assist in making the inquiries. When the services of a cooperating agent are necessary, the SAC will forward a request to the appropriate operating division. The other operating divisions will assign an employee for the purpose requested within 30 days.

(4) A further discussion of a special agent's authority is contained in IRM 25.5.4, Summons - Examination of Books and Witnesses.

(1) The Director, Global Financial Crimes & Policy is responsible for developing, maintaining, and overseeing this IRM and ensuring compliance with current policies and procedures.

(1) The Director, Global Financial Crimes & Policy will:

1. Review the IRM annually.

2. Update the IRM when content is no longer accurate and reliable to ensure employees correctly complete their work assignments and for consistent administration of the tax laws.

3. Incorporate all new interim content into the next version of the IRM section prior to the expiration date.

(1) The Director, Global Financial Crimes & Policy will review the instructions and guidelines relating to the investigation of tax returns and other IRS documents for procedural, operational, and editorial changes.

(1) All terms and acronyms pertaining to this section are defined as they are used.

(2) An interview is a meeting between two or more persons for the purpose of obtaining information. Interviews usually involve a formal consultation or interrogation for the purpose of resolving or exploring issues.

(3) An interrogation is an interview in which a person is questioned to obtain information.

(4) A conference is an exchange of views. Often a conference includes an interrogation to obtain details of a person’s views and contentions.

(5) A place of detention is any structure where persons are held in connection with federal criminal charges where those persons can be interviewed. This includes not only federal facilities, but also any state, local, or tribal law enforcement facility, office, correctional or detention facility, jail, police or sherriff’s station, holding cell, or other structure used for such purpose. The presumption in favor of recording custodial interviews is not applicable while a person is waiting for transportation, or is en route, to a place of detention.

(6) The presumption in favor of recording custodial interviews is limited to a place of detention that has suitable recording equipment. With respect to a place of detention owner or controlled by IRS-CI, suitable recording equipment means: (i) an electronic recording device deemed suitable by the agency for the recording of interviews that, (ii) is reasonably designed to capture electronically the entirety of the interview.

(1) The table lists commonly used acronyms and their definitions:

(1) IRM 1.2.2.12, Delegation of Authority for Communications, Liaison, and Disclosure Activities,

(2) IRM 1.2.2.15.1, Delegation Order 25-1 (Rev. 1), Summonses, Oaths, Certifications, and Related Functions,

(3) IRM 10.5.7, Privacy and Information Protection, Use of Pseudonyms by IRS Employees,

(4) IRM 11.3, Disclosure of Official Information,

(5) IRM 9.3.1, Disclosure,

(6) IRM 25.5.1, Summons, Introduction,

(7) IRM 25.5.4, Summons - Examination of Books and Witnesses,

(8) U.S. Department of Justice (DOJ) Policy Memo Concerning Electronic Recording of Statements.

(1) Prior to the interview of any subject or witness, the interviewer should take the following steps:

1. Determine the purpose for questioning the person,

2. Prepare an outline with sufficient detail to obtain the desired information,

3. Review all available information,

4. Organize the interview file,

5. Obtain the original tax returns if the interview involves the subject, the subject's representative, the preparer of the return, the subject's present employees, or if inspecting the taxpayer's books and records.

(1) The following factors are important considerations when planning for a successful interview. They are:

1. Timing - proper timing of the interview is essential to obtain information that is material for the development of an investigation,

2. Suitable surroundings - make arrangements for suitable surroundings that will facilitate the interview process,

3. Persons present - the number of persons present during the interview may affect the ability to conduct an effective interview. For example, the interview of the subject and his/her spouse might be more effective if conducted separately.

(1) The special agent should keep an open mind receptive to all information, and be prepared to develop that information. If the interviewer is not flexible, a great deal of time may be wasted and unnecessary questions may be asked, resulting in a voluminous statement of little or no value. A carefully planned outline will provide enough flexibility to cope with any situation that may occur and permit the development of any leads that may arise. Rigid adherence to notes or an outline will seriously limit flexibility. The outline and data should serve only as aids, rather than substitutes for original and spontaneous questioning.

(1) The special agent should follow up on every pertinent lead and every incomplete answer. Questioning should continue until all reasonably expected information is obtained from the witness. Incomplete answers have little or no value.

(2) The following suggestions will help the special agent follow up on potential leads and obtain answers that are complete and accurate:

1. Use short questions confined to one topic that can be clearly and easily understood,

2. Ask questions requiring narrative answers; whenever possible avoid asking questions that only require a yes/no answer,

3. Avoid questions that suggest part of the answer, i.e., leading questions,

4. Ask witnesses for the factual basis for answers provided,

5. Be alert to prevent the witness from aimlessly wandering; when possible, require a direct response,

6. Keep the witness focused on questions asked; do not allow the witness to confuse issues and leave questions unanswered,

7. Concentrate more on the answers given by the witness than on formulating the next question to be asked,

8. Have a clear understanding of each answer and eliminate any confusion before proceeding to the next question,

9. When all important points have been resolved, terminate the interview; if possible, leave the door open for further meetings with witness.

(1) The special agent should address the following basic questions:

1. Who? - Complete identification should be made of all persons referred to during the interview. This includes the following identification factors: description, address, any known aliases, doing business as, trading as, also known as, citizenship, reputation, and known associates. If the person cannot be identified by name, a physical description should be requested and should include the following: age, height, weight, color of eyes, hair, skin, description of build, clothing, unusual markings, scars and mental or physical defects. Questions should also cover any aids worn by the individual, such as glasses, hearing aid, dentures, wig or toupee, cane, braces, or other items.

2. What? - Obtain complete details as to what happened. Questions should relate to events, methods, and systems. Trace the event from its inception to its ultimate termination to develop the answer completely. For example, a sale starts with a customer placing an order, either orally or in writing, and terminates when the payment is ultimately placed in some depository. Every detail concerning what happened to the sale and what happened to every book, record, document, or person connected with it should be determined.

3. Where? - Obtain complete details regarding the location of books, records, assets, bank and brokerage accounts, witnesses, clients, customers, safe deposit boxes, safes, etc. A description of the location should include the general area, as well as the identification of the person who has custody and control of the item. A complete description of the place should include the size, shape, color, and location.

4. When? - The time can be established by direct questioning, by relating the incident to some known event, or by associating the event to some person, place, or thing.

5. How? - Obtain complete details about how the event occurred or how the operation was conducted. How did the subject acquire knowledge? Was it through seeing, hearing, feeling, smelling, or the performance of his/her duties? How were transactions recorded: written, typed, matching entries, other?

6. Why? - Determine the motive for an action by questioning the witness about his/her behavior. Find out what and who caused the witness to act. Ask how he/she was motivated to act. Special consideration should be given to these questions since they may be important in the development of intent items, especially when relating to or reflecting an evil purpose.

(1) The special agent will maintain full control of the interview. Each participant will be limited to the rights, duties, and privileges he/she is entitled to at the interview. Any deviation should be corrected immediately by informing the individual of his/her role and preventing him/her from going beyond it. If complete control of the interview cannot be maintained, the special agent should end the interview and arrange to continue when the situation is corrected. The record should show all attempts to correct the individual's improper conduct, as well as the reasons for terminating the interview before completion. The special agent will inform all persons of the reason they are present at the interview. The activities of the participants will be confined to the roles indicated.

(1) An affidavit is a written or printed declaration or statement of facts voluntarily made and confirmed by the oath or affirmation of the party making it before an officer having authority to administer such oath. No particular form of affidavit is required at common law. It is customary, however, that affidavits contain a caption or title, the judicial district in which given, the signature of the affiant and the jurat, which properly includes authentication. Exhibit 9.4.5-2 is a suggested format containing all these characteristics.

(1) A statement is a declaration of matters of fact. Although the term has come to be used for a variety of formal narratives of facts required by law, it is in a limited sense, a formal, exact, detailed presentation of the facts. The statement may be prepared in any form and should be signed and dated by the person preparing it. If possible, the witness should also sign the statement and signify that they read and understood it or that it was read to them. A statement (Exhibit 9.4.5-3) generally contains the comments and remarks of the witness and is used whenever it is not feasible to place the witness under oath, e.g., an affidavit, without the affiant's oath, is essentially a statement.

(1) A question and answer statement:

1. Is a complete transcript of the questions, answers, and statements made by each participant at an interview, and

2. May be prepared from the recorder's notes or from a mechanical or electronic recording device.

(2) Mechanical or electronic recording devices may be used to record statements by advising the witness, in advance, of the use of the device (implied consent). The source used to prepare the transcript should be preserved and associated with the investigative file because it may be needed in court to establish what was said. The transcript (Exhibit 9.4.5-4) should be prepared on letter-sized plain, bond paper with each question consecutively numbered and should contain the following:

1. The time and place where the testimony is obtained,

2. The names and titles of all persons present, including any attorneys or accountants present to assist the witness, also the reason for each person being present, if not self-evident,

3. The name and title of the person asking questions and the person giving answers,

4. The name and address of each person giving testimony,

5. The matter to which the testimony relates,

6. The purpose of the interview,

7. The information given to the witness concerning his/her rights relating to self-incrimination and counsel, if appropriate,

8. The administration of oath. See IRM 1.2.2.15.1, Delegation Order 25-1 (Rev. 1), Summonses, Oaths, Certifications, and Related Functions and IRM 25.5.1, Summons, Introduction,

9. The questions and answers establishing that the statement was made freely and voluntarily, without duress, and that no promises or commitments were made by the special agents,

10. An offer to allow witness to make any statement for the record, and, if advisable, an opportunity to examine and to sign the transcript,

11. The jurat: the officer who administers the oath should complete the jurat; it is preferable, but not essential, to have the same officer who interviewed the witness complete the jurat,

12. The signatures of any government witnesses present,

13. The signature and certificate of the person preparing the statement, showing the source of the original information used to prepare it,

14. If the statement is mechanically or electronically recorded, include a statement of consent.

(1) A memorandum of interview is an informal note or document containing information that the person desires to memorialize. It is a record of what occurred at the interview. A final typed memorandum of interview should be prepared without undue delay and include the following:

1. The interviews date, time, place, and roster of persons present, as well as what transpired,

2. The manner in which the special agent identified himself/herself,

3. Whether the witness was advised of his/her constitutional rights during the interview,

4. The testimony, evidence, and leads obtained during the interview,

5. The signatures of the special agents who were present at the interview, and the date the memorandum was signed,

6. The actual date of the memorandum's preparation placed at the bottom of the memorandum.

(2) The memorandum should report the information developed during the interview and be free of opinions, conclusions, and extraneous material.

(1) Informal notes should contain sufficient details to permit the special agent to refresh his/her memory as to what transpired at the interview. Any method of recording the entries is sufficient, provided it documents the time, place, persons present, and what occurred. Details of interviews containing Personally Identifiable Information (PII) should not be entered in the diary, but rather a memorandum should be made and kept in the investigative file (see Exhibit 9.4.5-6).

(1) Covert recording of interviews may be conducted under a Blanket Consensual Monitoring Authorization (if approved for the current year).

(1) The stenographer's original shorthand notes of a statement of a subject or a witness should be filed and considered part of the workpapers relating to the investigation. Remove the pages containing such notes from the notebook, number, staple in order, and seal in an envelope. If the stenographer uses computer media to prepare their shorthand notes, the special agent should consult with a Computer Investigative Specialist (CIS) agent to secure a copy of the electronic file to be placed in the envelope. Label the envelope with the following information:

1. Investigation number,

2. Name of the person whose statements are recorded,

3. Date the statements were made,

4. Number of pages of notes,

5. Name of the stenographer.

(1) The special agent will label recordings of statements by a subject or a witness made through the use of stenotype machines or sound recording devices and file in a manner similar to that prescribed in 9.4.5.9.1.

(1) The special agent will preserve notes made substantially contemporaneous to interviews of the subject or prospective witnesses and which are used in the preparation of a memorandum of interview, affidavit, or other similar reports. The original notes will be retained in the investigative file. The notes should contain the date of the interview and the initials of their maker in the right corner.

(1) The special agent will review every record of interview for typographical errors and for accuracy. If the statement is examined by the witness, permit the witness to correct typographical errors and to make minor modifications to his/her testimony. While major changes in the original interview are not permitted to be made, the witness may, however, submit an affidavit or give testimony to modify his/her original statements.

(1) Every document made under oath should have a simple certificate evidencing the fact that it was properly executed before a duly authorized officer. The usual and proper form, called the jurat, contains the statement subscribed and sworn to before me at (address), followed by the date, signature, and title of the officer. If the jurat shows an affirmation, the word affirmed will be sufficient. The special agent administers the oath by having the witness stand, raise his/her right hand, and make a declaration that the document is true and correct. See IRM 1.2.2.15.1, Delegation Order 25-1 (Rev. 1), Summonses, Oaths, Certifications, and Related Functions, and IRM 25.5.1, Summons, Introduction.

(1) Upon request, a copy of an affidavit or transcript of a question and answer statement will be promptly furnished to a witness except when it is determined by the SAC that its release should be delayed until such time as it will not interfere with the development or successful prosecution of an investigation (see 26 CFR 601.107 (b)(1)). A memorandum of interview does not have to be provided to the witness. For purposes of this section the subject of the investigation is considered a witness.

(1) The record of interview is generally not admissible as evidence at the trial, but may be used to refresh the memory of a witness or to discourage a witness from changing his/her testimony. It may also be used to impeach a witness on the stand when his/her previous statements are inconsistent with his/her testimony, or to furnish a basis for prosecution of a witness who testifies falsely at the trial. If the statement constitutes a confession or an admission against interest, the pertinent parts may be used as such in evidence at the trial. The record may also serve as a valuable source of information for subsequent interviews.

(1) A witness in a criminal investigation has the right to be accompanied, represented, and advised by counsel (see CFR 601.107(b)(1)). The witness should be informed of this right if an inquiry is made regarding it. Subject's counsel, however, should not be permitted to control or censor the replies of the witnesses nor attempt to interfere with the examination or impede or delay the progress of the interview, interrogation, or conference.

(1) Principles relating to constitutional rights shall be adhered to during the interview, interrogation, or conference with a person who may be a possible defendant in a criminal trial.

(2) Constitutional protections are provided by the Fourth, Fifth, and Sixth Amendments:

1. Fourth Amendment - The Fourth Amendment provides that "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be searched."

2. Fifth Amendment - The Fifth Amendment provides, in part, that "No person shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law."

3. Sixth Amendment - The Sixth Amendment provides, in part that "In all criminal prosecutions, the accused shall enjoy the right to have the assistance of counsel for his defense."

(3) Violations of Rights - The courts have long held that if an officer of the United States obtains evidence, a statement, or a confession of a crime from a natural person in violation of the above constitutional rights, such evidence, statement, or confession shall not be admitted as evidence against such person.

(1) Special agents must abide by any related memoranda directives that apply to advising individuals of their constitutional rights during non-custodial and custodial interviews.

(1) With the approval of the Attorney General or delegate, the Secretary of the Treasury is authorized to issue orders compelling testimony in agency proceedings pursuant to 18 United States Code (USC) 6002 and 18 USC 6004. By Treasury Department Order No. 150-19, the Secretary of the Treasury delegated this authority to the Commissioner of Internal Revenue who re-delegated the authority to the Deputy Commissioner, the Chief, CI, and the Treasury Inspector General Tax Administration (TIGTA) (see Delegation Order 9-3, Formerly No. 169 (Rev.1)).

(2) An agency proceeding, as defined by 18 USC 6001, is a proceeding before an agency authorized to issue subpoenas and to take testimony or receive other information from witnesses under oath.

(3) In a proceeding where the IRS is authorized to issue a summons, the designated officials of the IRS may issue, with the approval of the Attorney General or delegate, an order compelling individuals to give testimony or to produce information which they had refused to give or produce on the basis of the right against self-incrimination. An order may be issued if in the judgment of the designated officials:

1. the testimony or other information from such individual may be necessary for the public interest, and,

2. such individual has refused to testify or provide other information on the basis of the right against self-incrimination.

(4) The Assistant Attorney General, Tax Division, has set forth the policies of the Department of Justice (DOJ) regarding the review and approval of requests under 18 USC 6004 for authorization to issue orders compelling testimony and the production of other information in IRS proceedings.

(5) Testimony or other information compelled under the order and information directly or indirectly derived from such testimony or other information, may not be used against the witness in any criminal investigation, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order.

(1) These procedures will be employed only in investigations conducted by CI. Orders to compel testimony will not be requested for matters initiated in other operating divisions of the IRS unless and until the case has been referred to and accepted by CI. For example, to obtain an order to compel the testimony of a person employed as a bookkeeper of a large corporation, either the principal corporation or some related entity or individual must first be selected for investigation by Cl.

(2) Requests for authorization to compel testimony will be submitted only for testimony, books, papers, records, or other data to be given or produced in IRS proceedings which have been initiated by a summons issued under 26 USC 7602. Procedures for the utilization of 18 USC 6004 will not be employed in connection with grand jury investigations that fall within the purview of 18 USC 6003.

(3) Requests for approval to compel testimony will be limited to investigations and situations which, in the judgment of the requester and reviewers, are significant and in which an order compelling testimony is the only viable administrative tool for obtaining necessary information. Employees of Cl should consult CT Counsel for pre-referral advice prior to initiating such a request.

(4) A request for approval to compel testimony will be submitted only after a witness has been summoned pursuant to 26 USC 7602, and has actually appeared and invoked his/her Fifth Amendment privilege in response to significant or essential questions posed by the special agent.

(1) During an investigation, any party interviewed who believes that his/her testimony would be incriminating may invoke his/her rights under the Fifth Amendment.

(2) If the witness is a subject of the investigation, or if during the course of an interview the special agent determines that the witness may be a potential subject of the investigation, the special agent should advise the witness of his/her constitutional rights. The special agent should ask the witness if he/she understand his/her rights. However, the special agent should not ask the witness if he/she wishes to assert his/her Fifth Amendment privilege. This claim should be initiated by the witness.

(3) Each witness for whom a compulsion order is to be requested must be served with a summons issued by a special agent under 26 USC 7602, and in accord with current case law governing the use of these summonses. Where applicable, the provisions of 26 USC 7609 will be followed.

(1) The contents of subpoenaed business records of a sole proprietorship are not subject to a claim of right against self-incrimination since such records are created voluntarily prior to the issuance of the subpoena or summons. However, a witness' act of production in response to a subpoena or summons may have incriminating testimonial aspects for which statutory immunity must be granted before production may be compelled.

(2) Generally, the testimonial aspects of the act of production go to the existence, possession, and authenticity of the records being sought. That is, merely by producing subpoenaed or summoned records, the witness admits that:

1. The records called for in the subpoena or summons exist.

2. Such records are in the possession and control of the witness.

3. The records being produced are the records described in the subpoena or summons.

(3) A compulsion order under 18 USC 6004 may be used to immunize only those aspects of the act of production that are testimonial in nature. When a witness receives such immunity, the government is precluded from the use and derivative use of the witness' act of production to establish the existence, possession, or authenticity of the records that are produced. If the government can establish independently from the act of production that the records do exist and are in the possession of the witness, and there is an independent means by which the records can be authenticated (e.g., third party testimony, handwriting analysis, etc.), the contents of the records may be used in evidence against the witness in a criminal proceeding.

(4) A request for immunity under 18 USC 6004 solely for a witness' act of production will be considered only in factual situations which satisfy all of the following conditions:

1. The investigation is a criminal investigation.

2. The witness must invoke a valid Fifth Amendment claim to the production of such records.

3. The records sought to be compelled are clearly business records.

4. The summons being issued does not seek testimony from the witness.

5. The records sought to be compelled are described with sufficient particularity so as to be easily identified.

6. If the party summoned is a subject of the investigation, the records sought to be compelled are not otherwise obtainable from third parties (e.g., bank, bookkeeper, accountant).

7. The witness to be immunized is not being required, as a result of the summons, to create any records.

8. There is evidence available to establish that the records being sought presently exist in the possession of the party to be summoned, and there is an independent means to authenticate the records once they are produced.

   Note: Procedures for the utilization of 18 USC 6004 will not be employed in connection with grand jury investigations which fall within the purview of 18 USC 6003.

(5) When a special agent determines that a summons should be issued for business records from a witness or subject for whom act of production immunity will be required, the concurrence, and the assistance of CT Counsel in drafting the summons, should be sought. The summons must be narrowly drafted to seek only production of business records that are known to be in the possession of the summoned party.

(6) If the summoned party refuses to comply based on a valid Fifth Amendment claim in a recorded "Question and Answer" statement, CI will prepare and process a compulsion order request. The compulsion order request should also contain a section which covers the independent authentication of the requested records and specifies which records can be identified by each witness.

(7) After approval of the compulsion order by DOJ and the Chief, CI, the procedures set forth in subsection 9.4.5.12.3.3 of this section entitled "Procedures When A Witness Reappears in Response to an Adjourned Summons" will be followed except that:

1. CT Counsel will be requested to attend the proceeding.

2. The summoned party will be directed to turn over the requested documents to CT Counsel who will immediately inspect the records to determine whether any documents produced are not covered by the summons.

3. If any documents outside the summons are produced, CT Counsel will advise the summoned party that the immunity order does not cover the witness' act of producing those documents.

4. Documents not covered by the summons will be immediately returned to the witness unless the witness expressly waives any Fifth Amendment rights in regard to the documents.

5. If the volume of documents makes it impractical to perform an inspection at the time of production, the witness will be advised that the documents will remain under the control of CT Counsel until such inspection can be performed.

6. CT Counsel will perform an inspection of the documents as soon as possible. Until such an inspection is completed, none of the documents produced will be made available to the special agent.

7. After inspection, all documents covered by the summons will be released to the special agent.

8. All documents outside the scope of the summons will be retained by CT Counsel. CT Counsel will immediately advise the witness or the witness' attorney by certified mail return receipt requested, of the documents found to be outside the scope of the summons and immunity order. The witness will be requested to reclaim the documents or provide an express waiver of any Fifth Amendment rights in regard to such documents.

9. If an express waiver is not received within 30 calendar days of the date of CT Counsel's letter, the documents will be sealed and returned to the witness by certified mail, return receipt requested, or by hand delivery by a special agent not assigned to the investigation.

(8) As soon as possible after receipt of documents obtained pursuant to an act of production immunity order, the special agent should obtain and document independent authentication of the records. Although independent authentication may not legally be required until an attempt is made to introduce the records in a criminal proceeding against the witness, the means to obtain such authentication may be unavailable by that time.

(9) If the summoned party does not comply with the summons after receipt of the Compulsion Order, CI will refer the summons to CT Counsel for judicial enforcement under existing procedures. The enforcement letter from CT Counsel will be reviewed by the Assistant Chief Counsel (Collection, Bankruptcy and Summonses) before forwarding to the DOJ, Tax Division. Coordination with the Criminal Tax Division will be sought when appropriate.

(1) The following considerations are designed to implement the DOJ, Tax Division's policy regarding the utilization of 18 USC 6001– 6005:

1. That restraint and selectivity be used in authorizing requests to apply for or issue orders compelling testimony under 18 USC 6004; and

2. That the reviewing officials be furnished all available information regarding the extent of the witness' involvement in the matters under investigation, and the nature of the expected testimony in order that an informed and objective assessment of the advantages and risks involved in compelling testimony may be made.

(2) Requests for authorization to compel testimony from close family members of the subject of an investigation will rarely be approved by DOJ, Tax Division, unless:

1. The witness and the relative participated in a common business enterprise and the testimony to be elicited related to that enterprise or its activities;

2. The testimony to be elicited relates to illegal conduct in which both the witness and the relative were active participants; or

3. The testimony to be elicited relates to a crime involving conduct overriding prosecutorial concerns

(3) The government must be careful not to provide witnesses, who may be sympathetic to the subject, with the opportunity to use immunity from prosecution as a means of exculpating the subject of the investigation by falsely accepting responsibility.

(4) The DOJ requires that the compelled testimony of witnesses who have been convicted, but not sentenced on criminal charges, will not be brought to the attention of the sentencing judge without the witness' consent.

(1) A request for a compulsion order will consist of narrative responses, in memorandum form, keyed to the requested information outlined in paragraph (3) of this section as specified by the lettered paragraphs (a through s). Where appropriate, a single memorandum may be prepared even where authorization for a compulsion order is being requested for more than one witness.

(2) Each request for authorization to issue a compulsion order will be transmitted by a memorandum addressed to the Director, Field Operations from the requesting special agent. The last page of the request will contain approval lines for the following officials:

1. Special Agent in Charge,

2. Director, Field Operations,

3. Chief, CI.

(3) In order to provide effective administrative review of the need for a compulsion order, and to comply with the requirements of the DOJ, Tax Division, the following information should be included in each request to compel testimony from a prospective witness. Reference should be made in the memorandum prepared by the special agent to the letters below in order to identify responses.

1. The narrative memorandum should contain, as a caption, the following information: the name, address, taxpayer identification number, subject investigation number and similar data on each related investigation.

2. A brief summary of the background of the investigation including the title and section numbers of the US Code corresponding to the alleged violation(s) under investigation and the method of proving income which is currently being utilized.

3. Indicate whether the witness is related, by blood or marriage, to the subject(s) of the investigation.

4. Summarize witness' role in the matter under investigation.

5. Describe briefly the circumstances surrounding the witness' invocation of the Fifth Amendment, outlining the scope of the assertion, and the legal basis believed to underlie the assertion. Where possible and when appropriate, state whether the right is being invoked by the witness in a capacity as a record-keeper, corporate officer, or in an individual capacity, based on personal knowledge of or involvement in the matters under investigation.

6. Summarize the witness' expected testimony.

7. Indicate whether the witness may be in a position to exculpate the proposed subjects, even if it is not anticipated that the witness would do so if compelled to testify.

8. Outline the basis for concluding that the witness will cooperate and testify truthfully if compelled to do so pursuant to 18 USC 6004. If it cannot be ascertained whether the witness will testify truthfully, so state.

9. Attach witness' Federal Bureau of Investigation (FBI) identification record "criminal history" and summarize any other known criminal activity. If the FBI record is unavailable, explain. List any charges or investigations pending against the witness. If the witness is currently awaiting trial or sentencing, or has a case on appeal, provide information concerning the identity, status, and location of the case including the name of the government attorney assigned to it.

10. Describe the Federal, state, or local offenses which may have been committed by the witness that could be disclosed during the course of his/her compelled testimony. Include an analysis as to whether the witness could be prosecuted for a role in the matter under investigation and, if so, state the reasons why the IRS has determined not to recommend prosecution.

11. If the witness is the subject of any inquiry, civil or criminal, currently being conducted by the IRS, indicate the office handling the matter and the nature of the inquiry.

12. If the witness is represented by counsel, provide the name of the witness' attorney, and indicate whether that attorney or a member of that attorney's law firm is representing one or more of the proposed subjects (including, for example, an employee of a corporation who is represented by the corporation's counsel). If the witness' attorney is also representing one or more of the proposed subjects, state whether the attorney has given any indication that representation will be withdrawn in the event an order to compel testimony is authorized.

13. If the witness may assert the attorney-client privilege or other legal privilege, describe the possible effect of that privilege on the government's attempts to obtain the witness' testimony.

14. State whether any assurances or agreements are known to have been made with the witness by any government representatives that could have the effect of affording the witness immunity from prosecution.

15. List all other witnesses for whom authorization to compel testimony has been requested in this matter, or with whom an agreement not to prosecute may have been made by a government representative. Specify whether such witnesses named are the subject of an authorization or an agreement.

16. List any known electronic surveillance involving this investigation, and attach a summary report of the results of the surveillance.

17. Summarize any information available to refute false statements which the witness may make.

18. Summarize the attempts made to secure from other sources the information the witness is expected to provide or, if appropriate, summarize the reasons why this information cannot be obtained from other sources.

19. List the names and addresses of Federal, state, and local law enforcement officers other than IRS personnel notified of this request, if any, and report their views regarding the application. If it is anticipated that other law enforcement agencies would have a substantial interest in the authorization under consideration, then indicate the efforts made to clear the proposed order with such agencies. Clearance with other agencies shall be effected in accordance with the provisions of 26 USC 6103.

(4) The request will be comprised of the witness identification sheet(s); the memorandum setting forth the responses to the above items; a verbatim transcript or a detailed memorandum of the proceeding (a memorandum will be accepted only when the witness refuses to allow the interview to be recorded) wherein the witness asserts the Fifth Amendment right against self-incrimination or otherwise refuses to answer questions; and a copy of the original summons.

(5) The SAC will submit each request for authorization to issue a compulsion order to the Director, Field Operations for consideration of approval. The Director, Field Operations will indicate approval or disapproval within three workdays of receipt. If the Director, Field Operations agrees that it is appropriate to request authorization, the original and three copies of the request will be forwarded to the Chief, CI, Attn: Financial Crimes Section.

(6) The Chief, CI, will approve or disapprove the request within three working days of receipt. If the Chief, CI, agrees that a request for authorization to compel testimony is appropriate, the original and two copies of the request will be forwarded to Division Counsel/Associate Chief Counsel (Criminal Tax), to review the legal sufficiency of the request and for preparation of the compulsion order.

(7) The Division Counsel/Associate Chief Counsel (Criminal Tax) shall determine the propriety and legal sufficiency of the request. If the request is determined proper and legally sufficient, the Division Counsel/Associate Chief Counsel (Criminal Tax) shall prepare a proposed compulsion order for each witness and transmit them, along with an original and one copy of the request, to the Chief, CI. The original request, along with all supporting exhibits and copies of all proposed compulsion orders, will then be transmitted to the Assistant Attorney General, Tax Division, Attention: Chief, (Region) Criminal Enforcement Section. If the request is determined not proper or not legally sufficient, the Division Counsel/Associate Chief Counsel (Criminal Tax) will advise the Chief, CI.

(8) Upon forwarding the request to the DOJ, Tax Division, the Chief, CI will orally advise the Director, Field Operations and the SAC of the requesting field office that it has been forwarded.

(9) Upon receipt of approval by the Assistant Attorney General, Tax Division, the Chief, CI will sign the order. The order, with the authorization letter (signed by the Assistant Attorney General, Tax Division) attached, will then be transmitted directly to the requesting field office, with copies to the Director, Field Operations, Division Counsel/Associate Chief Counsel (Criminal Tax), and Area Counsel (Criminal Tax). At the same time, the Chief, CI will orally advise the Director, Field Operations and the SAC of the requesting field office that the order has been signed.

(1) In the event the witness appears and testifies, and there exists evidence that proves the witness testified falsely, the special agent should submit to CT Counsel the following:

1. The summons and related documents,

2. The verbatim transcript and documents provided by the witness,

3. The order compelling testimony signed and issued by the Chief, CI,

4. The authorization letter from the Assistant Attorney General, Tax Division,

5. A report by the special agent setting forth in detail the reasons why the witness's testimony is alleged to be false, and the evidence that is available to support this allegation.

(1) Within 10 workdays after the witness has testified, the SAC will prepare and submit a Form 6185, Witness Follow-up Report, to the Director, Field Operations on the use of the compulsion order. A copy should be immediately forwarded to the Criminal Section, DOJ, Tax Division. The report should be prepared whether or not the witness complies with the order, and whether or not it is believed the witness testified truthfully.

(2) A copy of the report will be sent to the following:

1. Chief, CI, Attn: Financial Crimes (SE:CI:GO:FC),

2. CT Counsel,

3. Assistant Chief Counsel (Collection, Bankruptcy and Summonses),

4. Division Counsel/Associate CT,

5. Criminal Section, DOJ, Tax Division.

(3) The report shall contain the same information listed in subsection 9.4.5.12.7, entitled "Procedures for Potential Perjury/False Statement Referrals After a Compulsion Order."

(4) Supplementary reports should be submitted as necessary to report subsequent events of significance.

(1) IRS personnel should not disclose the nature, content, scope, or any other facet of the witness' compelled testimony before the IRS. If inquiries are made by another government agency concerning an individual who has previously furnished information pursuant to an order issued under 18 USC 6004, the fact the person has given compelled testimony should be brought to the attention of the requesting department or agency.

(2) A copy of the verbatim transcript and order, together with pertinent records and documents supplied by the witness, should be included as exhibits to the special agent's final report recommending prosecution of the subject of the investigation. A transcript used for such purposes will be accompanied by a cover sheet listing the signature, name, and title of each person having access to the transcript. All case transmittal material must contain a reference to the fact the report contains such documents, and of the need for each reviewer to sign the cover sheet. The originals and all remaining copies of the transcript, as well as authenticated copies of documents furnished, will be placed under seal with the special agent's investigation files and will be retained for the same time as such file. In no instance shall a transcript, sealed documents, or any other records be destroyed less than 20 years from the date of the witness' appearance and testimony pursuant to the compulsion order.

(1) If a separate criminal tax investigation is subsequently undertaken of a person who has previously been compelled by the IRS to testify pursuant to an 18 USC 6004 order, no persons connected with the subsequent investigation should be permitted access to the transcript of the witness' prior testimony or the documents, or copies thereof, which the witness provided under the compulsion order. Any IRS personnel who had access to the compelled testimony or documents provided, must exclude themselves from any investigative or review action in the subsequent investigation.

(2) Where prosecution of a previously compelled witness is undertaken, the government bears a heavy burden to establish the evidence of the offense was derived from independent sources and the search for such evidence did not emanate from the testimony given under compulsion.

(3) Accordingly, prior to initiation of such an investigation, the assigned special agent should prepare a memorandum for the local CT Counsel detailing the source and information giving rise to the proposed investigation. Criminal Tax (CT) Counsel will review this memorandum and the proposed subject's prior compelled testimony to ensure that they are not related. CT Counsel will advise the special agent by memorandum of its findings without disclosing the nature of the compelled testimony.

(4) If a prosecution recommendation is made to the DOJ, Tax Division and the recommended defendant is known to have previously been compelled to testify under an 18 USC 6004 order, the referring special agent should include the following information in the prosecution recommendation:

1. the dates the recommended defendant was previously ordered to give testimony and produce documents

2. a summary of the circumstances and information that will establish the proposed criminal tax prosecution is independent of the prior compelled testimony or documents provided by the recommended defendant

(1) Testimony and other information provided by a witness under an 18 USC 6004 order may be used in a related injunctive action under 26 USC 7407 or 26 USC 7408 prior to the conclusion of the criminal investigation. Such testimony and other information will not be utilized in any other civil action (i.e., conducting civil audits, issuances of statutory notices, etc., relative either to a witness or a subject of the investigation) during the pendency of the criminal aspects of the investigation without the express written consent of the Chief, CI. If a prosecution referral to the DOJ, Tax Division is ongoing, the concurrence of the DOJ, Tax Division must be obtained prior to the non-injunctive civil use of the testimony or information.