25.5.1. Introduction

(1) The Internal Revenue Code (IRC) provides the IRS with summons authority and a mechanism to enforce compliance with summonses.

(2) This IRM provides an introduction to the summons process by discussing:

• The provisions of law

• The authority associated with various summons activities

• Factors to consider when issuing a summons

(1) Delegation Order 25-1 provides the levels of authority delegated to various IRS employees to approve and perform activities concerning summonses. See IRM 1.2.2.14.1, Delegation Order 25-1, Summonses, Oaths, Certifications and Related Functions.

(2) The provisions of law applicable to IRS summons issuance and enforcement are contained in the following sections of the Internal Revenue Code:

• IRC 7602, Examination of Books and Witnesses

• IRC 7603, Service of Summons

• IRC 7604, Enforcement of Summons

• IRC 7605, Time and Place of Examination

• IRC 7609, Special Procedures for Third-Party Summonses

• IRC 7610, Fees and Costs for Witnesses

• IRC 7612, Special Procedures for Summonses for Computer Software

• IRC 7622, Authority to Administer Oaths and Certify

• IRC 7402, Jurisdiction of District Courts

• IRC 7210, Failure to Obey Summons

• IRC 6420(e)(2), IRC 6421(g)(2)and IRC 6427(j)(2), (generally pertaining to the taxation of gasoline and fuel sales)

• IRC 6503(j), Designated and Related Summons

(1) Paragraph (9) in Delegation Order 25-1 lists the employees authorized to issue, serve and enforce summonses except "John Doe" summonses. See IRM 1.2.2.14.1, Delegation Order 25-1, Summonses, Oaths, Certifications and Related Functions.

(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) of Delegation Order 25-1 in IRM 1.2.2.14.1 and IRM 25.5.1.2.3, Authority to Issue Summonses Requiring Approval (Except "John Doe" Summonses).

(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.

(1) The IRS employee who issued the summons keeps a copy of the original summons in the administrative case file; (Page 1 of the summons labeled “Original”). The original summons is needed when referring a summons for enforcement. See IRM 25.5.10, Enforcement of Summons.

(2) Counsel (and in some areas, Advisory) reviews requests to enforce summonses.

(3) Certain summonses require approval. When approval is required, it is incumbent upon the IRS employee who issued the summons to maintain the proper approval records associated with each summons. All approved summonses, approval memoranda and counsel review documents where applicable, should be maintained with the summons in the administrative case file.

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

(2) Definitions pertaining to summonses served upon third-party witnesses are in IRM 25.5.6.3, Definitions.

(1) IRM 25.5, Summons, provides guidelines for all IRS functions in one multifunctional handbook. The sections are:

• 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 1.2.1.2.36.

(4) Additional summons guidance can be found on the Summons Knowledge Base.

(1) A John Doe summons is issued to obtain the identity of a taxpayer or group of taxpayers being investigated. They are used when the name of a taxpayer, or group of taxpayers, is unknown and not readily available from other sources. IRC 7609(f) authorizes the IRS to issue a John Doe summons pursuant to an investigation of a specific, unidentified person or an ascertainable group or class of persons.

(2) John Doe summonses can only be issued by high ranking individuals who are specifically authorized to do so in Delegation Order 25-1, (see IRM 1.2.2.14.1). Special agents, revenue agents and revenue officers are not authorized to issue these summonses. When considering a John Doe summons, refer to IRM 25.5.7, Special Procedures for John Doe Summonses.

(3) The high ranking individuals authorized to issue a John Doe summons include the following:

1. Area directors

2. Deputy commissioner (International)

3. Director (International Compliance Strategy & Policy)

4. Commissioners of operating divisions (SB/SE, LB&I, W&I, TE/GE)

5. Chief criminal investigation

6. Directors and directors of field operations (SB/SE, LB&I, W&I, CI)

7. Directors (TE/GE)

8. Field operation managers and area managers in TE/GE (Federal, State and Local Governments (FSLG), Indian Tribal Governments)

9. Territory managers (LB&I and SB/SE)

(1) The following IRS employees have the authority to issue any summons other than a John Doe summons:

1. Special agents and special agents in charge

2. Supervisory special agents

3. Team managers and group managers responsible for LB&I, SB/SE, W&I, TE/GE and CI.

(2) These IRS employees also have the authority to:

• Serve and enforce summonses,

• Set the time and place for appearance,

• Take the summoned person's testimony under oath,

• Receive and examine data produced in compliance with the summons, and

• Perform other related duties described in section IRC 7609(i)(2)

(1) The following IRS employees have the authority to issue summonses to the taxpayers under investigation. They also have the authority to issue summonses to third-party witnesses when their manager, or any supervisory official above that level, has given prior approval.

1. Internal revenue agents

2. Estate tax attorneys

3. Estate tax examiners

4. Revenue service and assistant revenue service representatives

5. Tax auditors

6. Tax compliance officers

7. Revenue officers, GS–09 and above

8. Tax law specialists

9. Compliance officers

10. Tax resolution representatives, GS-12 and above

11. Property appraisal and liquidation specialists

12. Bankruptcy specialists GS-09 and above (only for pre-assessment Trust Fund Recovery Penalty (TFRP) determinations)

(2) Generally, the supervisor provides approval for the issuance of a third-party summons by signing the summons as the approving officer. Official electronic signatures are permitted. Alternatively, the issuing employee may write and sign a statement on the summons indicating:

• That prior authorization to issue the summons has been received, and provides,

• The name and title of the approving supervisor, and

• The date of the approval

(3) The IRS employees listed above in (1), a through l, are also authorized to:

• Serve and enforce summonses,

• Set the time and place for appearance,

• Take the summoned person's testimony under oath,

• Receive and examine data produced in compliance with the summons, and

• Perform other related duties described in section IRC 7609(i)(2)

(1) The following IRS employees have the authority to serve summonses:

1. Revenue agents

2. Revenue officers

3. Estate tax attorneys and estate tax examiners

4. Estate and gift tax paralegals

5. Revenue service and assistant revenue service representatives

6. Tax auditors

7. Tax compliance officers

8. Tax law specialists

9. Compliance officers

10. Tax resolution representatives, GS-12 and above

11. Tax examiners, GS-05 and above (whose duties include contacting taxpayers in person)

12. Investigative analysts and tax fraud investigative aides, GS-05 and above

13. Property appraisal and liquidation specialists

14. Bankruptcy specialists GS-05 and above

(1) The following IRS employees are authorized to designate certain other IRS employees as the individuals who will set the time and place of examination, receive and examine summoned information and take the summoned person's testimony under oath. The persons authorized to designate are:

1. All IRS employees listed in IRM 25.5.1.2.1, Authority to Issue "John Doe" Summonses.

2. All IRS employees listed in IRM 25.5.1.2.2, Authority to Issue Summonses Except "John Doe" Summonses.

3. All IRS employees listed in IRM 25.5.1.2.3, Authority to Issue Summonses Requiring Approval (Except "John Doe" Summonses) as having authorization to issue summonses to taxpayers under investigation and issue summonses to third-party witnesses with supervisory approval.

Note: Refer to Delegation Order 25-1 in IRM 1.2.2.14.1 for details on the delegation of this authority.

(2) The following IRS employees may be designated to set the time and place of examination, to receive and examine summoned information, and to take the summoned person’s testimony under oath:

1. Chief counsel attorneys

2. Special agents

3. Supervisory special agents

4. Group managers

5. Internal revenue agents

6. Economists

7. Engineers

8. Appraisers

9. Business appraisers

10. Estate tax attorneys

11. Estate tax law clerks

12. Estate tax examiners

13. Revenue service and assistant revenue service representatives

14. Tax auditors

15. Tax compliance officers

16. Revenue officers

17. Compliance officers

18. Tax examiners whose duties include contacting taxpayers in person

19. Tax law specialists

20. Service center tax examiners in the correspondence examination function

21. Property appraisal liquidation specialists

22. Bankruptcy specialists (only for pre-assessment TFRP determinations)

(1) The following IRS employees are authorized to administer oaths and affirmations and to certify to those papers when necessary except that the authority to certify shall not apply to papers or documents whose certification is authorized by separate order or directive:

1. All IRS employees listed in IRM 25.5.1.2.1, Authority to Issue "John Doe" Summonses.

2. All IRS employees listed in IRM 25.5.1.2.2, Authority to Issue Summonses Except "John Doe" Summonses.

3. All IRS employees listed in IRM 25.5.1.2.3, Authority to Issue Summonses Requiring Approval (Except "John Doe" Summonses), as having authorization to issue summonses to taxpayers under investigation and issue summonses to third-party witnesses with supervisory approval.

Note: Tax Examiners and Tax Fraud Investigative Aides are not authorized to administer oaths or to certify papers or documents, except they may certify the method and manner of giving notice after serving a summons.

Note: Refer to Delegation Order 25-1 in IRM 1.2.2.14.1 for details on the delegation of this authority.

(1) As discussed in IRM 25.5.1.3(1), Factors to Consider Before Issuing a Summons, IRS employees should attempt to obtain information informally from third-party sources. If the third party voluntarily provides the information a summons is not required. This approach also applies when seeking financial records from financial institutions, except in cases governed by the Tenth Circuit’s interpretation of the Right to Financial Privacy Act (RFPA). The RFPA requires that account owners be given notice of, and an opportunity to challenge, a government agency’s intent to obtain records of their finances from a financial institution. However, the RFPA also provides an exception to these requirements as they apply to the IRS. Specifically, 12 USC 3413(c) states: "Nothing in [the RFPA] prohibits the disclosure of financial records in accordance with procedures authorized by the [IRC]." In all circuits other than the Tenth, the IRS takes the position that an informal request for records is a procedure authorized under IRC 7602. The Tenth Circuit reached the opposite conclusion in Neece v. Internal Revenue Service, 922 F.2d 572 (10th Cir. 1990) and ruled that a bank’s voluntary disclosure of a customer’s financial records to the IRS, without prior notice to the customer, violated the RFPA. The Tenth Circuit reasoned thatIRC 7609, notIRC 7602, contained the procedures for obtaining records concerning a taxpayer from a financial institution.

(2) The Tenth Circuit states are Kansas, Oklahoma, Wyoming, Utah, Colorado, and New Mexico.

(3) When issuing a summons, follow the procedures of IRC 7609 when applicable and refrain from seeking financial information from financial institutions by using only credentials or circular forms and letters; such as, Form 12470, Letter 1040 and ACS LP Letter 62 or any other non-summons method if the following conditions exist:

• The financial institution is located in the Tenth Circuit.

• The information sought concerns taxpayers residing in the Tenth Circuit, regardless of the location of the financial institution; or

• The IRS office is located in the Tenth Circuit, regardless of the location of the financial institution or the residence of the taxpayer.

(4) Seek the advice of Associate Area Counsel if there is any doubt as to whether Neece applies.

(5) Do not attempt to obtain financial information voluntarily from financial institutions if the above conditions exist. To do otherwise could result in actual and punitive damages awarded in suits against the IRS, and the expenditure of valuable resources in defending such damage suits.

(6) In RRA 1998, Congress enacted IRC 7609(j), which provides that nothing in IRC 7609 shall be construed to limit the IRS’s ability to obtain information, other than by summons, through formal or informal procedures authorized by IRC 7601 and IRC 7602. This section indicates that the IRS’s ability to informally seek the voluntary exchange of records (i.e., without a summons) constitutes a procedure authorized by the Code. Nevertheless, the IRS will follow the Neece ruling in cases described in IRM 25.5.1.3.1(3).

(1) The IRS does not follow the Neece rationale in other circuits; therefore, information may continue to be obtained voluntarily from financial institutions in other circuits using credentials or voluntary methods.

(1) Use credentials or circular forms and letters; such as, Form 12470,Letter 1040 and ACS LP Letter 62 to obtain information when possible.

(2) Obtain clearance from CI and/or Area Counsel before issuing a summons in connection with a pending criminal case intended to do the following:

1. Obtain more information from the taxpayer or a witness.

2. Uncover assets to apply against assessed liabilities.

(3) As required by IRC 7602(d), do not issue a summons to investigate a taxable year (or period) where the IRS has referred the same taxpayer’s case for the same type of tax and the same taxable year (or period) to the Department of Justice for criminal prosecution. IRC 7602(d) generally does not prohibit a summons issued regarding a different type of tax (e.g. income, employment, or excise tax) or a different year or taxable period. However, coordination with Counsel may be necessary. See IRM 5.1.5.11, Administrative Summons and IRM 5.1.5.12, Cases Under Jurisdiction of the Department of Justice.

(4) Do not issue a summons to request proof of filing, copies of returns, or proof of payment if the desired documents are available from IRS records.

(5) Employment and excise tax returns can be processed under IRC 6020(b).

(6) IRC 6331(g) forbids the levy or seizure of property of the taxpayer on the day that the taxpayer, or officer or employee of the taxpayer, appears in response to a summons issued for the purpose of collecting any under-payment of tax.

(1) Congress has created privacy rights in several industry and sector-specific federal statutes other than Title 26. These statutes include:

• Cable Communications Policy Act (1984)

• Communications Assistance for Law Enforcement Act (1994)

• Driver's Privacy Protection Act (1994)

• Electronic Communications Privacy Act (1986)

• Employee Polygraph Protection Act (1988)

• Fair Credit Reporting Act (1970). See IRM 25.5.4.5.6, Statutory Limitations on Acquiring Credit Reports from a Consumer Reporting Agency.

• Family Education Rights and Privacy Act (1974). See IRM 25.5.6.11, Summonses Served on an Educational Institution.

• Gramm-Leach-Bliley Act (1999)

• Health Insurance Portability and Accountability Act (1996)

• Privacy Protection Act (1980)

• Right to Financial Privacy Act (1978). See IRM 25.5.1.4.1, Documents from Financial Institutions in the Tenth Circuit and IRM 25.5.6.7, Banks.

• Social Security Act -- Family Child Support (Title IV-D)

• Video Privacy Protection Act (1988)

(2) Consult Associate Area Counsel with any questions concerning these statutes and the IRS’s summons authority.