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Part 25. Special Topics

Chapter 5. Summons Handbook

Section 1. Introduction

25.5.1  Introduction

25.5.1.1  (04-30-1999)
Overview

  1. The Summons Handbook provides guidelines for use by Collection, Criminal Investigation, Examination, and Tax Exempt/Government Entities (TE/GE) employees. Specific function directed guidelines are covered where appropriate.

  2. This section contains the following topics:

    • Provisions of law

    • Authority

    • Factors to consider

    • Description of summons (Form 2039)

25.5.1.2  (10-31-2006)
Provisions of Law

  1. The provisions of the law for using and enforcing a summons are contained in the following sections of the Internal Revenue Code:

    1. IRC 7602 Examination of Books and Witnesses

    2. IRC 7603 Service of Summons

    3. IRC 7604 Enforcement of Summons

    4. IRC 7605 Time and Place of Examination

    5. IRC 7609 Special Procedures for Third-Party Summonses

    6. IRC 7610 Fees and Costs for Witnesses

    7. IRC 7612 Special Procedures for Summonses for Computer Software

    8. IRC 7622 Authority to Administer Oaths and Certify

    9. IRC 7402 Jurisdiction of District Courts

    10. IRC 7210 Failure to Obey Summons

    11. IRC 6420(e)(2), 6421(g)(2) and 6427(j)(2)

    12. IRC 6503(j) Designated and Related Summons

25.5.1.3  (10-31-2006)
Authority

  1. The Commissioner's authority to take any and all actions related to a summons derives from the Internal Revenue Code sections listed above in IRM 25.5.1.2 and from Treasury Order No. 150–10. However, the authority of specific IRS officers and employees to issue a summons or take any other action related to a summons is strictly defined and restricted by Deleg. Order No. 4 (as revised), as set forth in IRM 1.2.52.7. Before taking any action relating to a summons, the Service employee should check Deleg. Order No. 4 to insure that he or she has the necessary authority. The following paragraphs describe many of the authorized actions set forth in Deleg. Order No. 4 and list many (but not all) of the IRS officers and employees authorized to take these actions. The purpose of these paragraphs is not to provide an exhaustive description of Deleg. Order No. 4, but rather to identify the actions most commonly associated with summonses and the IRS officers or employees who are authorized to take those actions.

25.5.1.3.1  (10-31-2006)
Authority to Issue "John Doe" Summonses

  1. A John Doe summons is one issued to obtain the identity of the taxpayer or group of taxpayers being investigated. They are used only when the proper name of the taxpayer is unknown and not readily available from other sources. The authority to issue a John Doe summons is strictly limited by Deleg. Order No. 4. Only certain high-ranking executives have the authority to issue a John Doe summons. Those executives include the:

    1. Directors of Field Operations for SBSE, LMSB, CI and W&I;

    2. Territory Managers for LMSB and SBSE

    3. Field Operations Managers and Area Managers for Federal, State and Local Governments functions, and Indian Tribal Governments functions in TEGE.

    Note:

    Special Agents, revenue agents, and revenue officers do not have this authority.

25.5.1.3.2  (10-31-2006)
Authority to Issue Summonses Except "John Doe" Summonses

  1. The following IRS officers and employees have the authority to issue any summons other than a John Doe summons:

    1. Special Agents and Special Agents in Charge

    2. Team Managers and Group Managers responsible for Examination, Collection and /or Compliance, EP/EO and Government Entities matters.

  2. These officers and employees also have the authority to serve and enforce summonses, to set the time and place for appearance, to take the summoned person's testimony under oath, to receive and examine data produced in compliance with the summons, and to perform other related duties described in IRC sections 7609(g) and (i)(2).

25.5.1.3.3  (10-31-2006)
Authority to Issue Summonses Requiring Approval (Except " John Doe" Summonses)

  1. The following officers and employees have the authority to issue summonses to the taxpayers being investigated. These officers and employees also have the authority to issue summonses to third-party witnesses but only when the employee's 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. Revenue Officers, GS–9 and above,

    7. Tax Law Specialists,

    8. Compliance Officers,

    9. Tax Resolution Representatives,

    10. Property Appraisal and Liquidation Specialists GS-12 and above

  2. To approve the issuance of a third-party summons, the supervisor must sign the summons as the approving officer. Alternatively, the issuing employee may write and sign a statement on the summons indicating that he or she had prior authorization to issue the summons and identifying the name and title of the approving supervisor and the date of the approval. This statement may be written in any blank space on the front of the original summons and all copies.

  3. The officers and employees listed above in IRM 25.5.1.3.3(1) a. - j. are also authorized to perform all other acts listed above in IRM 25.5.1.3.2(2).

25.5.1.3.4  (10-31-2006)
Authority to Serve Summonses

  1. The following officers or employees have the authority to serve summonses:

    1. Revenue Agents

    2. Revenue Officers

    3. Estate Tax Attorneys and Estate Tax Examiners

    4. Revenue Service and Assistant Revenue Service Representatives

    5. Tax Auditors

    6. Tax Law Specialists

    7. Compliance Officers

    8. Tax Resolution Representatives

    9. Tax Examiners, GS-5 and above (whose duties include contacting taxpayers in person)

    10. Revenue Officer Aides, GS-5 and above

    11. Tax Fraud Investigative Aides, GS-5 and above

    12. Personnel Security Officers

    13. Property Appraisal and Liquidation Specialists

    (The foregoing list sets forth those officers and employees who usually serve summonses. For a list of other persons having this delegated authority, see Deleg. Order No. 4.)

25.5.1.3.5  (10-31-2006)
Authority to Designate the Persons Who May Receive Summoned Testimony and Information

  1. The following officers or employees are authorized to designate certain other 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 persons listed in IRM 25.5.1.3.1 as being authorized to issue a John Doe summons,

    2. All persons listed in IRM 25.5.1.3.2 as being authorized to issue any summons other than a John Doe summons,

    3. All person listed in IRM 25.5.1.3.3 as being authorized to issue summonses to taxpayers being investigated and issue summonses to third-party witnesses but only with supervisory approval.

      Note:

      This authority may be redelegated to other officers and employees within the limits established in Deleg. Order No. 4.

  2. The persons who 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 are:

    1. Chief Counsel Attorneys,

    2. Special Agents,

    3. Case Managers,

    4. Group Managers,

    5. Internal Revenue Agents,

    6. Estate Tax Attorneys,

    7. Estate Tax Law Clerks,

    8. Estate Tax Examiners,

    9. Revenue Service and Assistant Revenue Service Representatives,

    10. Tax Auditors,

    11. Revenue Officers,

    12. Compliance Officers,

    13. Tax Examiners whose duties include contacting taxpayers in person,

    14. Tax Law Specialists,

    15. Service Center Tax Examiners in the correspondence examination function.

25.5.1.3.6  (10-31-2006)
Authority to Administer Oaths and Certifications

  1. The following officers or 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 persons listed in IRM 25.5.1.3.1 as being authorized to issue a John Doe summons,

    2. All persons listed in IRM 25.5.1.3.2 as being authorized to issue any summons other than a John Doe summons,

    3. All persons listed in IRM 25.5.1.3.3 as being authorized to issue summonses to taxpayers being investigated and to issue summonses to third-party witnesses but only 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.

25.5.1.4  (04-30-1999)
Factors to Consider Before Issuing a Summons

  1. Attempt to obtain information voluntarily from taxpayers and witnesses prior to issuing a summons. Consent may be obtained voluntarily by acquainting the taxpayer or witness with the provisions of the Internal Revenue Code. See the reverse side of Form 2039–A.

  2. Consider all surrounding circumstances before issuing a summons. Analyze each situation in the light of its particular facts and circumstances. Weigh the importance of the desired information against the:

    1. tax liability involved,

    2. time and expense of obtaining the records,

    3. probability of having to institute court action,

    4. adverse effect on voluntary compliance by others if the enforcement efforts are not successful,

    5. whether a criminal case is pending.

  3. Additionally, consider serving a summons in the following situations:

    1. No records are made available to permit an adequate examination within a reasonable period of time.

    2. Submitted records are known or suspected to be incomplete. Additional records are presumed to be in the possession of the taxpayer or a third party that may disclose material matters not reflected in the submitted records (i.e. broker statements, contracts, and bills for legal expenses).

    3. Taxpayers or taxpayers’ representatives will not seriously attempt to provide documentation for substantiation to the examiner because they intend to offer records and explanations at another level or after a notice of deficiency has been issued.

    4. The existence and location of records are in doubt. A summons may be issued to require testimony, under oath, as to what records exist and the location of such records. A subsequent summons may be issued describing the records. If the records are in the possession or custody or subject to the control of the person who has testified, it may be served at the time of the testimony or thereafter.

25.5.1.4.1  (04-30-1999)
Documents from Financial Institutions in the Tenth Circuit

  1. As indicated in IRM 25.5.1.4(1), Service employees should attempt to obtain information informally from third-party sources. If the third party voluntarily provides the information, the Service need not follow formal summons procedures. 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). In general, 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 Service. Specifically, section 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 Service 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 Service, without prior notice to the customer, violated the RFPA. The Tenth Circuit reasoned that IRC 7609, not section 7602, contained the procedures for obtaining records concerning a taxpayer from a financial institution. See IRM 25.5.1.4.1(6) below for a discussion of IRC 7609(j), enacted in RRA 1998, as it affects this reasoning.

  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 (if applicable), and refrain from seeking financial information from financial institutions by using only credentials, letters of circularization (for example: Letters 1040(DO), 1029(DO), and LP62(ACS)) or any other nonsummons method if the following conditions exist:

    1. the financial institution is located in the Tenth Circuit;

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

    3. the Internal Revenue Service 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 Service, 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 Service’s ability to obtain information, other than by summons, through formal or informal procedures authorized by IRC 7601 and 7602. This section indicates that the Service’s ability to informally seek the voluntary exchange of records, i.e., without a summons, constitutes a procedure authorized by the Code. Nevertheless, the Service will follow the Neece ruling in cases described in IRM 25.5.1.4.1(3).

25.5.1.4.2  (04-30-1999)
Documents from Financial Institutions Located in Circuits Other than the Tenth Circuit

  1. The Service 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.

25.5.1.4.3  (10-31-2006)
Considerations and Limitations on Issuance of a Summons

  1. Use credentials or circular letters (Letters 1040(DO), 1029(DO) and LP62(ACS)) to get information when possible.

    Note:

    Special Agents, Criminal Investigation, should ensure that the requirements stated in IRM 9.3.1 Sub-Section 1.3.3 are met when using circular letters.

  2. Collection/Exam/TEGE should get clearance from CI and/or Area Counsel before issuing a summons in connection with a pending criminal case to:

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

    2. Uncover assets to apply against assessed liabilities.

    Note:

    Collection personnel can issue a summons if firm indications of fraud have not been developed.

  3. As required by IRC 7602(d), do not issue a summons to investigate a taxable year (or period) where the Service has referred the same taxpayer’s case 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 year or taxable period. However, coordination with Counsel may be necessary. See IRM 5.1.5.11 (2) and (3).

  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 Service 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.

    Note:

    Exception: In a jeopardy situation, a levy or seizure of property may be appropriate even though the taxpayer is appearing in response to a summons.

25.5.1.4.4  (10-31-2006)
Other Federal Statutes

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

    1. Cable Communications Policy Act (1984)

    2. Communications Assistance for Law Enforcement Act (1994)

    3. Driver's Privacy Protection Act (1994)

    4. Electronic Communications Privacy Act (1986)

    5. Employee Polygraph Protection Act (1988)

    6. Fair Credit Reporting Act (1970)
      See Summons Handbook, IRM 25.5.4.4.6

    7. Family Education Rights and Privacy Act (1974)
      See Summons Handbook, IRM 25.5.6.11

    8. Gramm-Leach-Bliley Act (1999)

    9. Health Insurance Portability and Accountability Act (1996)

    10. Privacy Protection Act (1980)

    11. Right to Financial Privacy Act (1978)
      See Summons Handbook, IRM 25.5.1.4 and 25.5.6.7(2)

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

    13. Video Privacy Protection Act (1988)

  2. Consult Associate Area Counsel with any questions concerning these statutes and the Service's summons authority.

25.5.1.5  (10-31-2006)
Description of Summons (Form 2039)

  1. The Form 2039 summons and assembly consists of five parts, as follows:

    1. Original (Form 2039) Summons, with the Service of Summons, Notice, and Recordkeeper Certificates on the reverse side;

    2. Part A (Form 2039, Part A) Summons (attested copy), with a reprint of pertinent IRC provisions on the reverse side;

    3. Part B (Form 2039, Part B) Notice to Third-Party Recipient of IRS Summons; with a reprint of IRC 7609 on the reverse side;

    4. Part C (Form 2039, Part C) Summons Noticee's Copy, with a reprint of pertinent IRC provisions on the reverse side; and

    5. Part D (Form 2039, Part D) notice explaining the right to contest the administrative summons, with a reprint of IRC 7609 on the reverse side.

    Note:

    General Instructions for preparation of a summons are found in Exhibit 25.5.1–1.

Exhibit 25.5.1-1  (10-31-2006)
General Instructions For Preparation of a Summons

  1. "In the matter of" : Insert in the space provided the name of the taxpayer whose tax liability is being investigated, collected, or examined. Include in the same space any other information a summoned third party, (e.g. a bank), would need to accurately identify the taxpayer. This information might include the taxpayer’s address (complete with street number, city, state, and zip code). See IRM 25.5.2.2.

  2. "Internal Revenue Service (Division)" : Identify the division (SBSE, LMSB, TEGE, CI, W&I) that is investigating the taxpayer. If applicable, identify investigating office by industry or area.

  3. Periods: Insert all of the calendar years, fiscal years, quarterly or monthly periods involved in the examination or investigation. The periods should be specifically stated (e.g., quarterly periods ended March 31, 1999 and June 30, 1999). Do not use abbreviations such as "9906" or "6/30/99." See IRM 25.5.2.2

  4. "To" : Insert the correct name of the person summoned and the name or names by which he or she is customarily known. Add the title or official status of the person if the purpose of the summons is to obtain testimony or records from a person in his or her capacity as trustee, receiver, custodian, corporate, or public official. If the name of a corporate custodian of records is unknown and his or her testimony is not needed ( i.e., the summons seeks only the production of documents and not testimony), the summons may be directed to the corporation. See IRM 25.5.2.3.

  5. "At" : Insert the correct address of the person summoned.

    1. the street and number of the place of business,

    2. the place of residence, or

    3. the location of the place where the person is found.

  6. "To Appear Before" : name and title of the Service employee who is to take the summoned person's testimony and who is to examine the books and records.

    Note:

    In some instances, the name will be the same as that of the Service employee authorized to issue the summons. However, the Service employee authorized to issue a summons may desire the person summoned to appear before another Service employee.

    Note:

    More than one IRS officer or employee may be designated to receive summoned information or take testimony under oath during a summoned interview. Additionally, while a summons document will in almost all instances identify the designated person before whom the summoned person is to appear, the Internal Revenue Code does not require that the summons document identify the designated person. Therefore, on occasions when it is necessary for a summoned interview to be conducted by an officer or employee other than the one identified in the summons document, this can be done consistent with statutory requirements.

  7. When the summons requires the production of books and records, papers, or other data, it is important that they be properly designated and described, including the inclusive dates covered by the document request. If the witness is not required to produce books and records, papers or other data, eliminate from the summons the phrase "and to bring with you and produce for examination the following books, records and papers, and other data."

    Note:

    The summons should not require the witness to do anything other than to appear on a given date to give testimony and to bring existing books, papers and records. A summons cannot require a witness to prepare or create documents, including tax returns, that are not currently in existence.

  8. "Business address and telephone number of Internal Revenue Service officer named above" : Insert the business address and telephone number of the IRS employee named in the body of the summons.

  9. "Place and time for appearance at" : Insert the complete address, including the room number where the person is required to appear.

    Note:

    IRC 7605 governs the time and place of appearance and it merely provides that they must be reasonable under the circumstances. The regulations provide that it is reasonable for the Service to schedule the day for examination during a workday and during normal business hours. As for the place of appearance, it should generally be at the IRS office located nearest the summoned person. In this context the closest office means the one containing the operating function - LMSB, SBSE, CI or TEGE - that issue the summons. The witness and the Service can agree on a different location. The Service and the summoned person can also agree (in a letter separate from the summons) that a summons seeking only records may be satisfied by mailing those records to the Service.

  10. Insert the date and time the witness is to appear. IRC 7605 provides that the date and time set for appearance must be reasonable under the circumstances and not less than 10 calendar days from the date of the summons if it is served on the taxpayer being investigated. In computing the 10-day period, exclude the date of service and the date of appearance. In short, for practical purposes, use 11 calendar days. Strict compliance with this provision is necessary for the summons to be enforceable if the summoned person refuses or fails to comply. The date for appearance should be on a workday. Do not set the date for appearance of the person summoned on a weekend or legal holiday.

    Note:

    At times, it may be necessary for a summoned witness to give testimony that extends beyond the time available in a single work day. If the issuing IRS employee anticipates that a witness's testimony may require more time than is available in a single workday, then the employee should list as many days as are necessary in the appearance date blank provided on the summons form. If it is not possible to reliably estimate the number of days, then the employee should identify the appearance date and type an asterisk. At the bottom of the summons form, the employee should type or handwrite a second asterisk and the phrase "and continuing day to day as necessary until the testimony is completed. " (This phrase must appear on the copy of the summons served on the summoned person and on the copies served on all noticees.)

    If the summoned person indicates that it is not possible (for valid reason) for him to appear on one or more of the days following the first date of appearance, do not release the summoned person from the obligation to appear on the following days unless that person provides in writing that he will appear on another mutually agreeable date which is identified by hour, month, day and year in the written statement.

  11. When summoning a third party, set the date for appearance at least 24 to 27 days after the date notice of the summons is given to all persons entitled to notice. IRC 7609(a)(1) provides that noticees must be given notice "within 3 days of the day on which service is made (on the third party summoned), but no later than the 23rd day before the day fixed in the summons " as the appearance date. The date of appearance cannot be counted in the 23 day period. Therefore, if the noticee is given notice on the same date the summons is served, the appearance date must be at least 24 days later. If the noticee is given notice on the third day after the summons was served, the date of appearance must be at least 27 days later.

    Note:

    Refer to the note following IRM Exhibit 25.5.1-1(10) for procedures to follow when designating more than one appearance date.

  12. "Issued under authority of the Internal Revenue Code this " : Insert the date on which the summons is signed by the issuing officer. This date is not to be considered as the "date of the summons " in setting the date for appearance pursuant to IRC 7605 (see 10 and 11 above).

  13. The authorized issuing officer will manually sign the summons in the space labeled "Signature of Issuing Officer" and insert his or her official title in the space labeled "Title" .

  14. Insert the signature and title of the approving officer, if appropriate (Group or Case Manager).

  15. Insert in the space provided the date and the time of day the summons was served.

  16. Show the manner in which the summons was served by checking one of the squares provided.

  17. Insert the address of the place or the location where the attested copy of the summons was delivered to the person summoned.

  18. If the summons was served by leaving an attested copy with a person at the last and usual place of abode of the party summoned, enter the name and address of the person to whom it was handed. If the summons was merely left at the individual’s last and usual place of abode, state only the address, and eliminate the phrase "with the following person " from the printed sentence above the space for entering the name of the person. Refer to IRM 25.5.3.2.

    Note:

    It is desirable that the summons be left with a responsible person, over 16 years of age, who is capable of understanding the importance of giving the summons to the summoned party.

  19. The officer serving the summons should sign the certificate of service in the space provided for "Signature" and enter his or her official title in the space designated "Title" .

  20. When a summons is served on a third party, complete the certificate of notice, showing date, time of notice, and name and address of noticee. Check the appropriate square if notice is not required. The copy of the summons given to the summoned party, Form 2039 (Part A), must bear the server’s original signature on the front page. Do not use a revision of Form 2039 bearing a revision date earlier than (12-2001).

    Note:

    If the person summoned is a third party entitled to payment for search, reproduction and transportation costs, give that person the third part of the summons form, which explains payment procedures. Otherwise, this part may be discarded.

  21. The Service employee giving the notice should sign the certificate of notice in the space provided for "Signature" and enter his or her official title in the space designated "Title" .

  22. The Service employee should sign in the space for "Signature " and enter his or her official title in the space for " Title" certifying that:

    1. the period prescribed for beginning a proceeding to quash the summons has expired,

    2. that no such proceeding was instituted, or

    3. that the noticee consented to the examination.

    Note:

    If a summoned third party requests a copy of this certification, photocopy the back page of the original summons and write an original signature and title on the photocopy. Give the summoned third party the signed photocopy. The original summons should also be signed as described above.

  23. If a person (named in the body of the summons) is entitled to notice of the summons, provide Part C of Form 2039 to the noticee along with the notice, Part D, explaining the rights to stay compliance and intervene.

  24. If the summons is served on a third party and notice is not required, discard Parts C and D of Form 2039 (Rev.12–2001).

  25. All copies served on the person to whom the summons is directed should contain the following statement: "I hereby certify that I have examined and compared this copy of the summons with the original and that it is a true and correct copy of the original."


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