25.5.10. Enforcement of Summons

(1) The Summons Handbook provides guidelines for all IRS functions in one multifunctional handbook.

(2) Purpose: This IRM section provides instructional procedures for the enforcement of summonses.

(3) Audience: IRS employees authorized to issue and enforce a summons.

(4) Policy Owner: Director, Collection Policy, SB/SE.

(5) Program Owner: Collection Policy Enforcement, SB/SE.

(6) Primary Stakeholders: IRS employees who require summons enforcement for the production of records and/or testimony, such as; SB/SE Collection, CEASO, SB/SE Exam, LB&I, TEGE and Criminal Investigation

(7) Program Goals: There are times when the IRS will issue a summons requesting that a taxpayer, or a third party possessing records or information pertaining to a taxpayer, provide records or testimony. The Internal Revenue Code (IRC) provides the IRS with summons authority, and there is a mechanism to enforce compliance with summonses. By following the guidance in this IRM section, IRS employees will be able to request that a court enforce a summons in compliance with law, procedure and taxpayer rights.

(1) Anytime a summons is issued, inform the witness or the witness’ representative that:

• The witness must appear in person with the records and either comply or refuse to comply, stating reasons for any such refusal.

• Failure to comply with the summons may result in judicial remedies.

• A representative of the witness cannot appear in lieu of the witness on the appearance date set in the summons.

(2) If the witness presents a valid reason (such as illness) for not appearing on the day fixed in the summons, that date may be continued by mutual agreement to another date. To formally extend the compliance date of the summons:

1. Prepare a letter to the summoned party that includes the date of the original summons, the new compliance date, and the name of the summoned party.

2. Mail the letter by certified mail or hand deliver it to the summoned party.

(3) If a taxpayer or witness appears in response to a summons and claims the Fifth Amendment or another privilege, continue with the examination or interview. Ask the summoned person all questions necessary so the person asserting the privilege responds to each inquiry by either answering the questions and/or producing the documents, or asserting the claimed privilege. Make a record of the interview listing each question asked and the privilege asserted in response to each question. Another IRS employee should attend the interview or examination as a witness. Information about a witnesses’ rights and privileges are discussed in IRM 25.5.5.4, Rights and Privileges of Person Summoned. Associate Area Counsel should be contacted in any case in which the taxpayer raises a constitutional defense to a summons. Refer to IRM 25.5.5.4.7, Noncompliance by the Witness or a Representative, for more information.

(4) Privileged communications generally may not be obtained by a summons. When a privilege is claimed in response to a summons, the IRS employee should request a privilege log from the person summoned to support the claim. Contact Associate Area Counsel for assistance with a privilege log request. See IRM 25.5.5.4.3, Privileged Communication and Summons.

(5) The above procedures are important in the event enforcement of the summons is sought to establish the facts and circumstances of noncompliance. The procedures respecting claims of privileges are primarily applicable when only the witness and the witness’ representative appear in response to the summons. If the taxpayer or another person attempts to be present during the questioning of a summoned third-party witness, and the IRS employee does not desire to disclose the course of the investigation or examination to the taxpayer or other person, the IRS employee should consult with their manager. Associate Area Counsel may also be consulted. See IRM 25.5.5.4.8, Disclosure Issues, for more information.

(1) A summoned party who fails to comply with a summons may be subject to:

• Criminal proceedings under IRC 7210, Failure to Obey Summons.

• Civil proceedings to enforce compliance under IRC 7604, Enforcement of Summons.

(2) When a person (or noticee) entitled to notice of a summons under IRC 7609(a) has exercised their right to bring a proceeding to quash a summons, the IRS employee receiving a petition to quash should notify Associate Area Counsel by telephone that same day. Make every effort to obtain copies of the documents involved so that they can be forwarded to Associate Area Counsel.

• The noticee must begin a civil action to quash the summons in the appropriate U.S. district court no later than 20 days after the day notice of the summons is given.

• Within the 20 day period, the noticee must mail (by registered or certified mail) a copy of the petition to quash the summons to the summoned witness and a copy to the IRS employee who issued the summons.

(3) Consider recommending civil enforcement action or criminal action when the person summoned neglects or refuses to comply.

(4) Do not refer a summons for enforcement in situations potentially involving an abuse of process, such as the following:

• The summoned party or their representative has contacted the IRS and indicated a willingness to comply with the summons and/or has requested a reasonable extension of time within which to comply.

• The summoned party has appeared and denied under oath the possession or control of the documents called for in the summons, unless there is a good reason to believe the contrary.

• The IRS has had possession of the documents for a sufficient period of time within which to examine and copy them. See IRM 25.5.4.4, Withdrawal of Consent to the Use of Records.

• Records are demanded before the summoned party could reasonably be expected to produce them.

• More than one examination of the same records for the same purpose is sought under circumstances that might suggest harassment. See IRC 7605(b).

  Note: IRC 7605(b) does not apply when the already-inspected records are for an audit of a different tax year.

• The summons was not issued by a proper, delegated official. See IRM 1.2.2.15.1 , Delegation Order 25-1, paragraph 9.

• The summons was not properly served under IRC 7603. See IRM 25.5.3.2, Service of Summons. For example, when issuing a summons to a third party not listed among the categories of third party recordkeepers in IRC 7603(b)(2), a summons must be delivered in hand to the person it is directed, or left at the person’s last and usual place of abode.

• The summons does not comply with the time requirements for production of documents under IRC 7605(a) and IRC 7609(a)(1). SeeIRM 25.5.2-1 , General Instructions for Preparation of a Summons.

• The summons to a third party does not comply with the notice requirements under IRC 7609(a). See IRM 25.5.6.4, Statutory Requirements for Third-Party Summonses.

(5) A summons is enforceable against individuals or entities who possess or control the summoned documents and fall within the jurisdiction of U.S. district court.

(6) The U.S. District Court for the district in which the person summoned resides or is found has jurisdiction to compel the person to appear, testify, or produce the records.IRC 7604(a).

(7) The Supreme Court’s opinion in United States v. Powell, 379 U.S. 48, 57-58 (1964) sets the standard for summons enforcement. Under Powell the IRS must establish that:

• The investigation will be conducted pursuant to a legitimate purpose.

• The inquiry may be relevant to the purpose.

• The information sought is not already in the possession of the IRS, and

• All administrative steps required by the Internal Revenue Code have been followed.

(8) The Powell standard compelling IRS to follow all administrative steps required by the Internal Revenue Code is usually understood to refer to the issuance and service requirements of IRC 7602 and IRC 7603. At least one district court refused to enforce a summons because it found the IRS had failed to comply with the notice of third-party contact rules under IRC 7602(c). J.B. v. United States, 916 F.3d 1161 (9th Cir. 2019)

(1) IRC 7604 provides for the civil enforcement of a summons.

(2) In petitioning the district court for an order to enforce the summons under section IRC 7604(b),the United States is seeking the assistance of the district court in requiring the person summoned to provide the requested information to the IRS. When the person is brought before the district judge or magistrate judge, the judge will issue whatever order is deemed proper to enforce compliance with the summons and to punish such person for default or disobedience. When a petition for attachment is filed, the court may choose to proceed by issuing an order to show cause why the summons should not be obeyed. It may also modify the summons if compliance would be unreasonable or oppressive.

(3) Enforcement proceedings are usually commenced by filing a petition for a court order directing compliance with the summons. The original summons and the certificate of summons service (found on page 2 of the summons and entitled Service of Summons, Notice and Recordkeeper Certificates), or copies, should be attached to the petition or offered in evidence. Failure to provide the completed certificate of summons service may result in the court ruling against enforcement of the summons. Based upon the allegations, the court may issue either an order to show cause, or an ex parte (only one party represented) order directing compliance with the summons. The use of procedures other than attachment is authorized by IRC 7604(a) which grants district courts jurisdiction to enforce compliance by appropriate process.

(4) The IRS employee who issued the summons is responsible for the preparation of all requests for civil enforcement of summonses. Use either the memorandum report format or Form 4443, Summons Referral, depending upon procedures used by your BOD.

(1) A person who neglects to appear or to produce records pursuant to a summons may be criminally prosecuted under IRC 7210. The government must be able to prove that:

• The defendant was duly summoned to appear to testify or to appear and produce certain records.

• The defendant did not appear or produce such records.

• At least some of the records called for by summons were in existence and in the defendant’s control.

• The defendant willfully and knowingly neglected to appear and produce them.

(2) It has been held that neglect as used in IRC 7210 means more than mere inadvertence. To make a criminal offense of neglect in this situation would imply that the person summoned must have:

• Willfully failed to comply with the summons; and

• Knowledge that the person failed to do what was required by the summons.

(3) Refusal to obey a summons could lead to a prosecution under IRC 7203 for willful failure to supply information required by the law.

(4) Requests for criminal action for failure to obey summonses issued by the civil functions will be referred by the appropriate Field Territory Manager to CI for evaluation. No attempt should be made to enforce obedience with the summons while criminal action is being considered. If CI does not initiate an investigation, CI will notify the Field Territory Manager of the referring function, and thereafter the referring function may then make a referral to the respective civil Counsel for civil enforcement action.

(5) If CI determines that criminal action for failure to obey a summons will be undertaken (rather than enforced obedience), the matter will be assigned for criminal investigation. No attempt should be made to enforce obedience with the summons while considering criminal action.

(6) Prepare final reports that recommend or do not recommend criminal action for failure to obey summonses in accordance with the discontinued report guidelines. When a discontinued recommendation is approved by the Special Agent in Charge (SAC) or Assistant Special Agent in Charge (ASAC), CI, in a case referred by a civil function for criminal action for failure to obey a summons, the Field Territory Manager of the referring function will be advised in writing by the SAC, CI. The Field Territory Manager of the referring function may then forward the matter to the respective civil Counsel for civil enforcement action.

(1) If the Associate Area Counsel contemplates disapproving a request for civil enforcement of any summons, an informal conference may be arranged between the Field Territory Manager and the Associate Area Counsel for the purpose of clarifying the available evidence or for discussing the merits of the proposed legal action.

(2) If the Associate Area Counsel still disapproves or no agreement is reached, Counsel will prepare a memorandum for the Field Territory Manager, setting forth the reasons for concluding that legal action should not be instituted. A copy will also be sent to the Director, Field Operations (CI or LB&I), or the Area Director (SB/SE Collection, SB/SE Exam or TE/GE), as appropriate.

(3) Upon receipt of the Associate Area Counsel’s memorandum, the Field Territory Manager may choose to prepare a report setting forth their views. The Field Territory Manager’s memorandum will be forwarded to the Director, Field Operations (CI and LB&I), or the Area Director (SB/SE Collection, SB/SE Exam or TE/GE), within 14 days of receipt of Counsel’s memorandum. A copy of the memorandum will be forwarded to Associate Area Counsel, or the appropriate CT Counsel office.

(4) Within 30 days from the receipt of the Field Territory Manager’s memorandum, the Director, Field Operations (CI or LB&I), or the Area Director, (SB/SE Collection, SB/SE Exam or TE/GE), will inform the appropriate Division Counsel and the Associate Chief Counsel (Procedure & Administration), in writing of their disagreement with the Associate Area Counsel. A copy of the Field Territory Manager’s report should be forwarded with this memorandum. If a disagreement then exists between Division Counsel and Associate Chief Counsel (Procedure & Administration), the disputing offices should resolve their dispute by observing the directives in CCDM 31.1.4.6, Reconciliation of Disputes.

(5) In the case of a third party summons where the noticee has filed a petition to quash the summons and Associate Area Counsel determines that the summons should not be defended, arrange an informal conference with the Field Territory Manager as quickly as possible. If no agreement is reached, the above protest procedures will be followed telephonically, as quickly as possible. Petition to quash cases must be handled as expeditiously as possible since an answer must be timely filed in response to the petition to quash.

(1) The processing and protest procedure as set out in CI IRM 9.5, Investigative Process, with respect to other prosecution cases will be followed in summons cases involving requests for criminal action.

(1) If the IRS receives an adverse decision in any civil summons enforcement proceeding, the Field Territory Manager of the function that issued the summons will promptly send a brief report of the proceeding to the Area Director (SB/SE Collection, SB/SE Exam or TE/GE), or to the Director, Field Operations (CI or LB&I). Copies of the report must be immediately sent to the Associate Area Counsel office serving that area and to the Associate Chief Counsel (Procedure & Administration CC:PA:BR6&7) to enable these offices to consider pursuing a timely appeal.

(2) When the Government appeals an adverse summons enforcement decision, the BOD that issued the summons must promptly inform Associate Chief Counsel (Procedure & Administration) of any developments affecting the summons enforcement proceeding. Examples of information which must be reported are set forth above in IRM 25.5.10.4.1.2(6), Preparation of Summons Referral and IRM 25.5.10.4.2(5), Criminal Investigation.

(1) Form 4443, Summons Referral, is an internal IRS document used to create a summons referral. See IRM 25.5.10.4.1.2 , Preparation of Summons Referral.

(1) A sample declaration is available on the Summons Knowledge Base.