- 9.4.5.1 Overview
- 9.4.5.2 Definitions
- 9.4.5.3 Purpose
- 9.4.5.4 Authority
- 9.4.5.5 Preparation and Planning
- 9.4.5.6 Conduct During Interview
- 9.4.5.7 Record of Interview
- 9.4.5.8 Right to Record Interview
- 9.4.5.9 Preserving the Record of Interview
- 9.4.5.10 Processing Record of Interview
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This section covers the definition of, purpose for and authority to conduct interviews. The section also discusses preparing for and observing the rights of witnesses and prospective defendants during an interview.
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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.
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An interrogation is an interview in which a person is questioned to obtain information.
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A conference is an exchange of views. Often a conference includes an interrogation to obtain details of a person's views and contentions.
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Interviews are used to obtain leads, develop information and establish evidence. The testimony of witnesses and the confessions or admissions of alleged violators are major factors in resolving tax investigations.
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Investigations are presented to a jury through the testimony of witnesses. Therefore, it is the special agent's duty to timely interview the subject and witnesses connected with the investigation.
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Title 26 USC §7602—Authorizes the Secretary or his/her delegate to examine books and records and to take testimony under oath.
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Delegation Order No 25-1 (formerly Delegation Order No 4) authorizes a special agent to issue and serve summonses, examine books and records, question witnesses and take testimony under oath.
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The Special Agent in Charge (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.
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A further discussion of a special agent's authority is contained in IRM 25.5, Summons.
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Since there may only be one opportunity to interview the subject or witness, thorough preparation and planning of the initial interview is necessary to ensure that the maximum amount of information is obtained.
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Prior to the interview of any subject or witness, the interviewer should take the following steps:
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Determine the purpose for questioning the person.
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Prepare an outline with sufficient detail to obtain the desired information.
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Review all available information.
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Organize the interview file.
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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.
Note:
The original income tax return may only be shown to the subject, the subject’s representative or the preparer of the return (See IRM 9.3.1, Disclosure).
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In planning for an interview, the special agent needs to determine the purpose for questioning the subject or witness. Each interview will have specific goals unique to the subject or witness being interviewed.
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The amount of detail in the outline will vary depending upon the experience of the special agent and the complexity of the investigation. The outline should contain only information that is relevant and material. Extraneous matter should be excluded because it may be confusing and could adversely affect the end result. Important topics should be highlighted or underscored and related topics should be listed in their proper sequence. A portion of a suggested outline is shown in Exhibit 9.4.5–1, Suggested Outline for Questioning Person Who Prepared Returns, If Other Than Subject. Specific questions should be kept to a minimum, since they tend to reduce the flexibility of the questioner. In addition to the topics to be discussed, the outline should include the following, if applicable:
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identification of the subject/witness
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information to be given to the subject/witness about his/her constitutional rights
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administration of the oath
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purpose of the interview
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questions showing that the subject/witness was not threatened or intimidated in any manner, and that statements were made freely and voluntarily without duress or any promises whatsoever
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Prior to any interview, review all the information and data gathered relating to the investigation. The information can be divided into three general categories:
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information that can be documented, but need not be discussed
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information that can be documented, but needs to be discussed
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information that must be developed by testimony
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The interview file should contain only data or information arranged in the order it is to be discussed or covered in the interview. The less data the special agent has to consider during the interview, the easier it is to vary the line of questioning. Delays in questioning caused by searching for a document in a voluminous file can be distracting and cause confusion. While the files should contain sufficient data to cover all the matters under discussion, they should not become unwieldy.
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The special agent must have custody of the original return or returns involved, if any were filed for the pertinent period, as a prerequisite to inspecting the subjects book and records and/or independently interviewing:
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the subject
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the subject's representative
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the subject's present employees if the investigation involves employment tax returns, or
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the preparer of the return
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Exceptions may be made in situations where an examination is extended to include taxable periods for which the original return is not available and the examination is based on the subject's retained copy, or where such action is approved by the Supervisory Special Agent (SSA).
Note:
The original income tax return may only be shown to the subject, the subject’s representative or the preparer of the return (See IRM 9.3.1.3.1, Interviews)
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The procedure outlined above is limited to a subject's own tax matters and does not apply to an inquiry where a special agent is merely securing information from another person not under tax investigation, but who has engaged in transactions with the subject or has data relevant to the tax liability under inquiry.
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The following factors are important considerations when planning for a successful interview. They are:
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timing—proper timing of the interview is essential to obtain information that is material for the development of an investigation
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suitable surroundings—make arrangements for suitable surroundings that will facilitate the interview process
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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.
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During the course of the interview, be adaptable and flexible, follow through on questions asked, and ensure that the basic questions such as who, what, where, when, how, and why have been addressed. Special agents will refrain from characterizing investigations as " criminal" except for the initial interview of the subject in an administrative investigation or in those instances where this disclosure is necessary to obtain the information sought. Such a disclosure could be necessary if the witness is disinclined to cooperate.
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Criminal Investigation has an interest in conducting its investigations discretely to avoid unnecessary embarrassment to the subject. Adhering to these procedures will help achieve this goal. Routine investigative inquiries often can be made with minimum disclosure of information.
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For example, if a special agent contacts a neighbor to learn if a witness resides at a particular address, it is often not necessary to disclose that they are a special agent conducting a criminal investigation to obtain the information. The exercise of appropriate discretion when contacting potential witnesses is the hallmark of professionalism.
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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.
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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.
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The following suggestions will help the special agent follow up on potential leads and obtain answers that are complete and accurate:
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use short questions confined to one topic that can be clearly and easily understood
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ask questions requiring narrative answers; whenever possible avoid asking questions that only require a yes/no answer
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avoid questions that suggest part of the answer, i.e., leading questions
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ask witnesses for the factual basis for answers provided
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be alert to prevent the witness from aimlessly wandering; when possible, require a direct response
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keep the witness focused on questions asked; do not allow the witness to confuse issues and leave questions unanswered
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concentrate more on the answers given by the witness than on formulating the next question to be asked
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have a clear understanding of each answer and eliminate any confusion before proceeding to the next question
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when all important points have been resolved, terminate the interview; if possible, leave the door open for further meetings with witness
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The special agent should address the following basic questions:
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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.
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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.
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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.
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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.
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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?
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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.
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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.
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The subject's role is to answer questions and provide any explanations as appropriate. The special agent will encourage the subject to tell his/her side of the investigation. Under the Fifth Amendment to the Constitution the subject has the right to refuse to answer any question that he/she feels may incriminate him/her. This constitutionally protected right can only be invoked by the subject.
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The subject of the investigation should be interviewed expeditiously after the initiation of the criminal investigation. The reason for delaying the initial interview of the subject will be documented in the investigative file.
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The witness must comply with every legal and reasonable request made by the special agent. The witness, however, has a right to refuse the request if, by answering the question, the information would tend to incriminate him/her. This right cannot be invoked on the grounds that the information will incriminate someone else. (See subsection 9.4.5.12, Immunity and Compulsion Orders.)
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The special agent should question the subject about any matters relevant to the investigation, unless the special agent feels that it would be to the government's disadvantage to ask questions that would reveal particular information. The special agent is responsible for the development of evidence and will conduct the interview in any manner deemed appropriate. If the special agent grants permission to a cooperating agent to question the subject, the special agent should instruct the cooperating agent in the method and technique to be used.
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The special agent should attempt to expeditiously interview the subject during the course of an investigation to obtain all available information and should give the subject every opportunity to explain participation in the alleged criminal violation. When possible, there should be at least two investigating officers, or one officer and an IRS stenographer, at every interview.
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The special agent must be cautious to avoid making statements of any kind in discussion with the subject or his/her representative that might be construed to compromise any criminal components of the investigation.
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The special agent should interview all key witnesses in a timely manner. When possible, there should be at least two investigating officers at every interview. However, if the interview involves a third party recordkeeper with no personal knowledge regarding the subject, then the interview may be conducted by one special agent.
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When interviewing witnesses, the special agent must remain objective and refrain from making comments regarding the subject that could be construed as derogatory.
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When a special agent determines that an interview with a juvenile is necessary, the special agent should seek the advice of Criminal Tax (CT) Counsel.
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The revenue agent or revenue officer may assist the special agent whenever any tax or technical accounting issues arise during an interview. The cooperating agent should not question the witness until he/she has discussed the matter with the special agent.
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The accountant's duty is to assist the client in all bookkeeping and accounting matters.
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The attorney has a duty to furnish legal advice to the client relating to any matter discussed. This is the attorney's principal function at an interview.
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The recorder's function is to prepare a permanent record of the interview. A mechanical or electronic recording device may be used in conjunction with the recorder or in lieu of a recorder, provided all parties to the proceeding have consented to the device's use.
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The principal purpose of an interview is to obtain all the facts necessary to develop the investigation and resolve questions. It is necessary to prepare a permanent record of every interview and contact. The record should memorialize facts pertinent to an investigation to be preserved for future use. The record will also contain the manner in which the special agent identified himself/herself and should indicate that the subject was advised of his/her constitutional rights.
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Further, when the special agent believes it is necessary to make a more explicit disclosure of the criminal nature of the investigation, the reasons for making this additional disclosure will also be documented.
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The record of interview will usually take one of the following forms:
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Affidavit, Exhibit 9.4.5–2
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Statement, Exhibit 9.4.5–3
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Question and Answer Statement, Exhibit 9.4.5–4
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Memorandum of Interview, Exhibit 9.4.5–5
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Informal Notes or Diary Entries, Exhibit 9.4.5–6
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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.
Note:
The authority to administer oaths is not delegated to Tax Fraud Investigative Aides (TFIAs). (See IRM 1.2.2, Delegations of Authority (Delegation Order No 25-1) and IRM 25.5.1, Introduction).
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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.
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A question and answer statement:
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is a complete transcript of the questions, answers, and statements made by each participant at an interview, and
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may be prepared from the recorder's notes or from a mechanical or electronic recording device
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If no stenographer is readily available, 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:
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the time and place where the testimony is obtained
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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
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name and title of the person asking questions and the person giving answers
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the name and address of each person giving testimony
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the matter to which the testimony relates
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purpose of interview
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information given to the witness concerning his/her rights relating to self-incrimination and counsel, if appropriate
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administration of oath (See IRM 1.2.2 (Delegation Order No 25-1) and IRM 25.5.1)
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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
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an offer to allow witness to make any statement for the record, and, if advisable, an opportunity to examine and to sign the transcript
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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
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signatures of any government witnesses present
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signature and certificate of person preparing the statement, showing the source of the original information used to prepare it
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if the statement is mechanically or electronically recorded, include a statement of consent
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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 and usually is in the format shown in Exhibit 9.4.5–5. A final typed memorandum of interview should be prepared without undue delay and include the following:
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the interview's date, time, place, and roster of persons present, as well as what transpired
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manner in which the special agent identified himself/herself
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whether the witness was advised of his/her constitutional rights during the interview
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testimony, evidence, and leads obtained during the interview
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signatures of the special agents who were present at the interview, and the date the memorandum was signed
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the actual date of the memorandum's preparation placed at the bottom of the memorandum (see Exhibit 9.4.5–5)
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The memorandum should report the information developed during the interview and be free of opinions, conclusions, and extraneous material.
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Facts pertinent to an investigation developed during an interview, interrogation, or conference should be reduced to writing and memorialized in an affidavit, statement, question and answer statement, or memorandum of interview. Any apparent differences of recollection between the investigating officers as to what was said should be resolved as soon after the interview, interrogation, or conference as possible, before completion of the memorandum.
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Copies of key interviews are to be forwarded to the Supervisory Special Agent (SSA) for review and inclusion in the administrative investigative file. Key interviews include contacts with the subject, the subject’s representative, and/or the subject's return preparer.
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If it becomes necessary to correct or supplement a memorandum after it is finalized (signed and dated), clearly state the date and reason for such action in a supplemental memorandum and attach it to the finalized memorandum.
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Since the person interviewed may be a government witness in a criminal trial, remember that 18 USC §3500 provides for defense inspection of any pre-trial statement about whose subject matter the witness has testified on direct examination. Case interpretation of this subsection covers substantially verbatim recitals of witnesses' oral statements that are contemporaneously recorded. This includes memoranda of interviews. Handwritten notes made by a special agent during an interview and used as the basis for a more detailed memorandum or report may be subject to inspection by a court and should be preserved and retained in the investigative file. Trial courts have substantial discretionary authority in interpreting the statute. Special agents, therefore, should confine memoranda to facts developed in their interviews, and should avoid opinions, conclusions, and other extraneous matters.
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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 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). A note should be made in the diary of the time, place, and persons interviewed.
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An interrogation or conference may be recorded only by a stenographer who is an employee of the IRS. This rule may be waived by the special agent's SSA. At the request of the IRS or witness, which includes a subject, the SSA may authorize the use of a stenographer employed by a US Attorney, a court reporter of the US district court, a reporter licensed or certified by any state as a court reporter or to take depositions for use in a US district court. The use of this procedure may be permitted under 26 USC §6103(c), subject waiver, or under 26 USC §6103(k)(6) where a disclosure is necessary for investigative purposes. If no stenographer is readily available, 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). If the witness objects, the interrogator will refrain from mechanically or electronically recording the statement. If the witness elects to mechanically or electronically record the conversation, the IRS will make its own recording.
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A witness or subject will be permitted to hire a qualified reporter as described above to be present at his/her expense to transcribe testimony, provided that the IRS can secure a copy of the transcript at its expense or record the testimony using a mechanical or electronic recording device or its own stenographer or reporter. However, the IRS retains the right to refuse to permit verbatim recording by a non-IRS reporter or stenographer on the grounds that disclosure would seriously impair Federal tax administration IRM 11.3, Disclosure of Official Information Handbook, and Delegation Order No. 156 (as revised).
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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)).
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All records of interview should be preserved whether the interview was recorded by use of a stenographer, a mechanical or electronic recording device, or handwritten notes.
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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. Label the envelope with the following information:
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investigation number
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name of the person whose statements are recorded
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date the statements were made
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number of pages of notes
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name of the stenographer
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The special agent will package and identify the stenographer's notes and other verbatim recordings of statements made in connection with a collateral investigation in accordance with the procedure prescribed above and send it, along with the collateral report, to the field office that requested the investigation.
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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 subsection 9.4.5.9.1.
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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.
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Once the details of an interview have been recorded in the desired format, the special agent will take the following steps to ensure proper processing of the record of interview.
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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.
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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 (Delegation Order No 25-1) and IRM 25.5.1).