Handbook 109.1
Summons Handbook
Chapter 10
Enforcement of Summons
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Contents
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This chapter contains the following sections:
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Appearance, Compliance or Noncompliance with a Summons
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General Enforcement Procedures
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Civil Enforcement of a Summons
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Criminal Enforcement of a Summons
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Protest Procedure Civil Enforcement Cases
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Protest Procedure Criminal Enforcement Cases
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Reports on Adverse Decisions in Civil Proceedings to Enforce Compliance With
a Summons
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[109.1]
10.2 (04-30-1999)
Appearance, Compliance or Noncompliance with a Summons
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Anytime a summons is issued inform the witness or the witness' representative
that:
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The witness must appear in person with the records and either comply or refuse
to comply, stating reasons for any such refusal.
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Failure to comply with the summons may result in judicial remedies.
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The representative of the witness cannot appear in lieu of the witness on
the appearance date set in the summons.
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In the event the witness for a valid reason (such as illness) cannot appear
on the date fixed in the summons, that date may be continued by mutual agreement
to another date.
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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
producing the documents or asserting the claimed privilege. However, if the
person summoned refuses to submit to questioning and the requests for documents,
do not continue the interview. Make a record of the interview. Another IRS
employee should attend the interview or examination as a witness.
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The above procedures are important to the enforcement of a summons 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 Service employee does not desire to disclose the course
of the investigation or examination to the taxpayer or other person, the
Service employee should consult with her or his superior. District Counsel
may also be consulted.
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A summoned party who fails to comply with a summons may be subject to:
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criminal proceedings under IRC 7210.
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civil proceedings under IRC 7604 to enforce compliance.
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Report immediately, through channels to District Counsel, any refusal to
comply or any proceeding brought by the summoned party to quash a summons.
Make every effort to obtain copies of the documents involved so that they
can be forwarded to District Counsel.
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Consider recommending civil enforcement action or criminal action when the
person summoned neglects or refuses to comply. Do not refer a summons for
enforcement in the following situations that might involve an abuse of process,
or in other similar situations, as follows:
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The summoned party or their representative has contacted the Service and
indicated a willingness to comply with the summons but has requested a reasonable
extension of time within which to comply.
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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.
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The Service has had possession of the documents for a sufficient period of
time in which to examine and copy them. (See Chapter 4.3 regarding photocopying
summoned records).
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NOTE:
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This provision does not include cases which involve the withdrawal of consent
to the use of records by an owner of records where the Service has not had
sufficient time to examine and copy them.
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Records of financial transactions are demanded before the summoned party
could reasonably be expected to produce them.
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More than one examination of the same records for the same purpose is sought
under circumstances that might suggest harassment.
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The summons has not been issued by a proper, delegated official.
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The summons has not been properly served under IRC 7603.
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The summons does not comply with the time requirements for production of
documents under IRC 7605(a) and IRC 7609(a)(1).
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The summons to a third party does not comply with the notice requirements
under IRC 7609.
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IRC 7604 provides for the civil enforcement of a summons.
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Under IRC 7604(b), enforcement action may be initiated by applying for an
attachment for an arrest against a person who has failed to obey a summons
to a district judge or magistrate judge. When the person is brought before
him or her, the district judge or magistrate judge will issue whatever order
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.
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Enforcement proceedings are usually commenced by filing a petition for a
court order directing compliance with the summons. The summons (or a copy)
should be attached to the petition or offered in evidence; otherwise, the
court may not enforce it. 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.
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The Service 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, Exhibit 109.1.10-1. Include
the following information in all requests for civil enforcement:
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The name, full address, and taxpayer identification number of the taxpayer
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A brief summary of the pertinent facts;
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What the Service employee seeks to obtain by the summons;
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An explanation of the relevancy of the records sought where the relevancy
is not obvious. For example, if records pertaining to years other than those
under investigation are sought, the relevancy should be explained. Explain
the relevancy of records pertaining to third parties, etc.;
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An explanation of the need or importance of such evidence to the success
or completion of the investigation or examination;
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A statement that IRC 7609(a) notice has been served on persons or entities
identified in the description of records or, if not, why it is believed notice
is not necessary;
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If a corporation is the party summoned, a statement of whether service of
the summons has been made on a responsible officer and, if not, why not;
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The circumstances surrounding contacts with the person summoned showing
particularly the defense(s) claimed for refusing to comply with the summons
and the circumstances under which the person summoned claimed the defense(s);
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A transcript (if recorded) of the questions propounded to the person summoned
and the person's answers;
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The name of the IRS Revenue Agent, Special Agent, or Revenue Officer or,
if none, why;
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A description of any problems involving the imminent expiration of the statute
of limitations with respect to either the criminal or the civil liability;
and
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A statement as to the existence of any known criminal investigations of the
taxpayer by other federal agencies and, in the instance of a corporate taxpayer,
corporate officers or employees;
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A statement as to any disclosures made pursuant to IRC 6103(i) concerning
possible violations of criminal laws not within Service jurisdiction;
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A statement as to any other known requests for summons or subpoena enforcement
against the witness or related parties; and
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If a pen register was used in the investigation prior to the issuance of
the summons, a statement to that effect and the reason the pen register was
used.
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Districts may decide whether Special Procedures function, (SPf) or Group
Managers will review summonses before they are referred to District Counsel.
Consult District Counsel before implementing summons reviewed by Group Managers.
If Group Managers are authorized to review summons referrals, establish a
system to allow District Counsel to report to Collection any decrease of
quality in the referrals.
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After a person neglects or refuses to comply with a summons, decide if summons
enforcement is appropriate. Review the case file to ensure that all standards
for preparation, issuance, and service of the summons were met.
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Within 3 workdays following the appearance date (or the date of withdrawal
of consent), prepare and send the summons referral to SPf.
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NOTE:
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If a TDI Supplement or IRMF transcript was requested, follow procedures in
Preparation of Summons Referral.
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Document the case file if the:
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decision is made not to enforce the summons;
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summons is not referred within the time period described in (2) above.
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Prepare Form 4443, Summons Referral, to refer the summons for enforcement.
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The Group Manager must approve Form 4443 prepared by revenue officers below
grade 9.
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A summons referral for withdrawal of consent by an owner of records will
include the following:
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In the heading block of the Form 4443 (which contains the words Summons
Referral ), include in red capital letters "WITHDRAWAL OF CONSENT TO
USE RECORDS."
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Describe the records in your possession. State whether the records are originals
or photocopies. An example of this may be bank statements, contracts, check
books, or financial statements.
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State whether the owner of the records retained copies of the records.
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State the date the Service received the records.
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State the date, time, and method used by the owner of the records to withdraw
consent to the use of the records.
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State the date and time the records were secured and where they are located.
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State whether the owner of the records claimed reimbursement for search,
reproduction, and transportation costs. Attach a copy of the invoice or Form
6863, Invoice and Authorization for Payment of Administrative Expenses, if
costs were claimed.
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Include a copy of the letter if the owner of the records withdraws consent
in writing.
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Include the following in a summons referral requesting Forms W-2 or 1099:
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Check the "Yes" block in item 7 on Form 4443. Explain in space C why it is
impossible or impractical for the Service to produce the Forms W-2 or 1099
from its own records. Otherwise, the summoned party can defend against
enforcement of the summons for the production of documents already in the
Service's possession unless the Service provides good reason for its inability
to produce the documents.
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Document Form 4443, Section C if an IMF TDI Supplement is in the case file
with Forms W-2/1099 information for all periods covered by the summons.
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Request a TDI Supplement from IDRS.
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| All periods do not appear on the TDI Supplement in the case file |
Request a TDI Supplement |
| The missing years are available on the IMF TDI Supplement file on IDRS |
Request a TDI Supplement |
| There is no supplement in the case file |
Request a TDI Supplement |
Request an Information Returns Master File (IRMF) transcript for earlier
years not available on the IMF TDI Supplement file.
If a TDI Supplement or IRMF transcript was requested:
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Do not refer the summons for enforcement if the requested items (or negative
response) have not been received by the date set for compliance.
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If an IRMF transcript is not received within 4 weeks, treat as a negative
response.
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Forward Form 4443, with the original summons, to SPf within 3 workdays after
receipt of the requested items (or negative response).
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Notify SPf if a transcript is received after the summons has been referred
for enforcement.
Notify SPf of any developments affecting the summons enforcement proceeding.
SPf must in turn notify District Counsel if the summons has been referred
to that office. Examples of the type of information which must be reported
are:
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The evidence sought is no longer needed.
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The person summoned voluntarily complied with the summons.
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The tax liability was paid, became unenforceable due to expiration of the
statute for collection, or was otherwise satisfied.
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SPf will review:
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The case to ensure the summons is proper in all respects.
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The referral report to ensure it contains all necessary information.
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Contact the referring Collection employee about any deficiencies with the
summons referral so that corrective action can be taken.
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If the summons and the referral report are satisfactory, SPf will prepare
a letter and five copies, to the summoned person, for the signature of District
Counsel, Exhibit 109.1.10-2.
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NOTE:
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Refer the case directly to District Counsel without the letter when a noticee
has petitioned to quash the summons under IRC 7609.
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Set the appointment date for the summoned person to appear before the Collection
employee at least 15 days from the date that the case was referred to District
Counsel.
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SPf will transmit the following documents to District Counsel within 5 workdays
of receipt of the case.
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NOTE:
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Documents for withdrawal of consent cases will be transmitted to District
Counsel as soon as possible but no later than 3 workdays (including the date
of receipt) from the date of receipt of the case.
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original and two copies of Form 4443;
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original and three copies of the letter for District Counsel's signature
(unless an IRC 7609 case is involved); and
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the original summons.
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District Counsel will consider the summons enforcement request.
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| District Counsel believes the summons can be enforced |
They will sign and mail the letter to the summoned person |
| District Counsel believes the summons can not be enforced |
They will inform Special Procedures so the referring employee can be
notified |
Upon receipt of the two signed copies of the letter which District Counsel
mailed to the person summoned, SPf will:
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retain one copy for the case file; and
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forward the other copy to the referring employee.
If the summoned person fails to comply to the letter issued by District Counsel,
prepare a summons declaration and three copies, Exhibit 109.1.10-3, within
3 workdays after the date set for appearance in the letter.
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NOTE:
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If necessary, modify the declaration to meet the requirements of local law.
Immediately notify SPf when the person summoned is given more time to comply
with the summons. SPf will notify District Counsel of the newly established
time for appearance.
SPf will review and forward the original and two copies of the summons
declaration to District Counsel. District Counsel must receive these documents
within 15 workdays after the date set for appearance. If necessary, inform
District Counsel by telephone that civil action to enforce the summons is
or is not being recommended and when the necessary documents will be forwarded.
District Counsel will notify SPf that the summons will not be enforced for
withdrawal of consent cases. SPf will immediately notify the referring employee
who will immediately arrange to return the records to their owner. |
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Prepare Form 2797, Referral Report of Potential Fraud Case for criminal
enforcement of the summons.
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While the case is under consideration for criminal action, do not attempt
to enforce obedience with the provisions of the summons. The matter may be
referred to District Counsel for civil enforcement action, if not accepted
for criminal investigation.
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Any summons that has not been complied with within six (6) workdays following
the date set for compliance, where enforcement action is appropriate, will
be referred to District Counsel for initiation of enforcement proceedings.
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The Chief, CI, will indicate approval of the referral by endorsement on the
signature page of the summons enforcement request. Transmit the original
and four copies with the original of the summons (Form 2039), through the
District Director or designee, to District Counsel. If the matter relates
to a strike force case or an investigation in which DOJ has expressed an
interest, the Chief will forward an extra copy of the special agent's request
through District Counsel and Chief Counsel to the Criminal Division of DOJ.
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If this is a summons issued in connection with a collateral investigation,
the replying district will provide to the requesting district, by memorandum,
sufficient information regarding noncompliance with the summons, to enable
the requesting district to prepare a request for civil enforcement of the
summons. This request should be directed to and processed by the responsible
office of District Counsel servicing the requesting district.
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Requests are approved generally by District Counsel and in certain cases
by Chief Counsel. Normally, District Counsel will take final action within
6 workdays from the receipt of a summons matter, and Chief Counsel will take
final action within 3 workdays after receipt of a summons matter.
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After referring a summons to District Counsel for civil enforcement by
memorandum, keep Counsel informed of all situations having a bearing on the
summons enforcement proceeding. In instances where time is of the essence,
immediately advise District Counsel by telephone of the facts in the matter.
Follow with a confirmation by memorandum. Examples of the type of information
to report are:
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evidence sought is no longer needed;
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the witness has voluntarily complied with the provisions of the summons;
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the tax liability is paid or otherwise satisfied;
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the principal is about to be offered a district CI conference; or
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the special agent has submitted a report recommending prosecution of the
principal.
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NOTE:
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Prepare the memorandum as soon as the information is received. Distribute
the same number of copies and in the same manner as the original referral
to Counsel. Forward copies of any legal documents involved in the action
with the memorandum.
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Inform District Counsel by memorandum of compliance of any summons which
is referred to DOJ for enforcement, or of an initial decision by a federal
district court or magistrate that the summons is unenforceable. Include in
the memorandum:
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the names of the taxpayer and witness;
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the appearance date set in the summons;
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the date the summoned person complied with the summons or the date of the
adverse decision;
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whether compliance was satisfactory; and
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whether compliance was pursuant to a court order.
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NOTE:
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Prepare the memorandum as soon as practicable after compliance or the adverse
decision. Distribute in the same manner as the original referral to District
Counsel.
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After the referral for summons enforcement, inform District Counsel by memorandum
of any:
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ex parte orders under IRC 6103(i) that may be sought or granted;
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head of agency requests received or granted.
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NOTE:
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Notify District Counsel if the witness becomes the subject of a grand jury
inquiry before the enforcement of the summons has been granted.
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If there is a pending summons enforcement action related to an investigation
when the special agent's report recommending prosecution is forwarded to
District Counsel, include in the memorandum a statement to that effect. Also,
identify the party involved in the summons enforcement action and the District
Counsel office handling the matter.
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Include the following in the referral memorandum whether:
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the examination is a reexamination within the meaning of IRC 7605(b);
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approval has been obtained from another IRS function or DOJ. If so, provide
the necessary documentation.
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Forward the referral memorandum to District Counsel within 6 working days
following noncompliance.
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If summons enforcement is not recommended:
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Prepare a memorandum within 6 working days following noncompliance to the
Chief, Examination Division, explaining the reasons enforcement proceedings
were not recommended.
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Retain a copy of this memorandum in the administrative files.
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Submit the original plus two copies of this memorandum and the original plus
two copies of the referral memorandum to District Counsel. If the summons
involves the Special Enforcement Program, submit the original plus five copies
of each memorandum.
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An affidavit should be prepared by the examiner(s) who issued the summons,
served the summons, and examined the summoned person. Set forth all the facts
pertinent to the issuance and service of the summons and the summoned person's
noncompliance. A single affidavit is required if the same examiner performed
all three functions. Transmit the affidavit plus any memorandum to District
Counsel.
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NOTE:
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Do not prepare an affidavit in cases involving "John Doe" summonses, Special
Enforcement summonses, or summonses to financial institutions. These affidavits
will be prepared by or under the supervision of DOJ.
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If the examiner uses Form 4443 instead of the referral memorandum, insert
"Special Enforcement Program" and the type of project (if any) in item 5,
"Organized Crime Drive Case" in the form. Prepare four copies of Form 4443,
with an additional three copies if a Special Enforcement Program case is
involved.
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If District Counsel has approved civil enforcement of a summons, forward
the request to the U.S. Attorney for the district where the person resides
or is found. District Counsel will provide a copy of the transmittal memorandum
with copies of all attachments to the Tax Division of DOJ.
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A memorandum will be provided by the Chief, Examination, to District Counsel
relating to any subsequent developments concerning the summons enforcement
proceeding. The following are examples of information that should be provided
to District Counsel:
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evidence sought is no longer needed;
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witness has voluntarily complied with the provisions of the summons;
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tax liability is paid or otherwise satisfied;
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case has gone to court for enforcement;.
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date set for appearance pursuant to the summons;
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date of compliance;
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adverse decision;
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whether compliance was satisfactory; and
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whether compliance was pursuant to a court order.
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NOTE:
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The memorandum should be prepared as soon as the information is received,
attaching copies of all pertinent documents. The memorandum and copies of
the memorandum should be distributed in the same manner as the memorandum
that was referred to District Counsel.
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In time sensitive situations, District Counsel should be immediately advised
by telephone of the facts. A memorandum can be prepared as described.
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A person refusing to obey a court order to comply with a summons (civil
enforcement) may be held in contempt of court. The contempt proceedings may
be civil or criminal, or both. A defendant may be purged of civil contempt
by complying with the court order, but punishment for criminal contempt is
usually not conditional. Use of civil or criminal contempt, as with civil
or criminal enforcement, depends on whether the purpose is to compel compliance
with the summons or to punish disobedience and protect the authority of the
court.
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A civil contempt proceeding may be commenced by a motion requesting that
the person summoned be adjudged in contempt and punished. The recalcitrant
party may then be committed to jail until he or she complies with the court
order.
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A criminal contempt proceeding can be undertaken only on notice given by
the judge in open court in the presence of the defendant, by an order to
show cause, or by an order of arrest, unless the contempt was committed in
the presence of the court. The notice must state essential facts, which
constitute criminal contempt and describe the criminal contempt as such.
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For criminal contempt, the government must prove beyond a reasonable doubt
that the defendant willfully failed to comply with a lawful court order and
show that summoned records are presently within the defendant's power and
control. Presumption of continued possession and existence is not enough
to shift the burden of proof to the defendant unless the time span is short
and there is no outside motivation for destruction of the particular records.
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To support applications for court orders directing compliance with a summons,
prepare a declaration (Exhibit 10-3 contains a sample) detailing the nature
and purposes of the examination, the testimony and records desired, and their
relevancy. Enforcement proceedings are usually held solely upon declarations
and oral argument. The declaration must show the person summoned has possession,
care, or custody of the desired records and the records are material and
relevant to the tax liability of the person being investigated. If the summons
pertains to a year previously examined, attach a copy of the District Director's
reopening letter. Some courts may require an affidavit under oath with the
same basic information.
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If the declarations sharply dispute whether the records are subject to the
control of the summoned person, the court will usually resolve the issue
in the summons enforcement proceeding. When a petition for enforcement 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.
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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:
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The defendant was duly summoned to appear to testify or to appear and produce
certain records.
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The defendant did not appear or produce such records.
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At least some of the records called for by summons were in existence and
in the defendant's control.
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The defendant willfully and knowingly neglected to appear and produce them.
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It has been held that neglect as used in this Code section means more than
mere inadvertence. To make a criminal offense of neglect in this situation
would imply that the person summoned must have:
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wilfully failed to comply with the summons; and
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knowledge that he or she was failing to do what the summons required him
or her to do.
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Refusal to obey a summons could lead to a prosecution under IRC 7203 for
willful failure to supply information required by the law. Proof that the
refusal was intentional and without legal justification is not sufficient.
The government must establish that the refusal was prompted by bad faith
or evil intent; i.e., that the defendant did not believe in good faith
that refusal was legally justified.
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Requests for criminal action for failure to obey summonses issued by the
district civil functions will be referred by the appropriate Chief to CI
for evaluation. If CI does not initiate an investigation, CI will notify
the Chief of the referring function, and thereafter the referring function
may then make a referral to District Counsel for civil enforcement action.
No attempt should be made to enforce obedience with the summons while criminal
action is being considered.
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If CI determines that criminal action for failure to obey a CI-issued summons,
rather than enforced obedience be undertaken, the matter will be assigned
for criminal investigation. No attempt should be made to enforce obedience
with the summons while considering criminal action.
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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 Chief or
Branch Chief, CI, in a case referred by a civil function for criminal action
for failure to obey a summons, the Chief of the referring function will be
advised in writing by the Chief, CI. The Chief of the referring function
may then forward the matter to District Counsel for civil enforcement action.
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If District Counsel contemplates disapproving a request for civil enforcement
of any summons, an informal conference may be arranged between the Chief
and District Counsel for the purpose of clarifying the available evidence
or for discussing the merits of the proposed legal action.
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If District Counsel still disapproves or no agreement is reached, Counsel
will prepare a memorandum for the Chief, setting forth the reasons for concluding
that legal action should not be instituted. A copy will also be sent to the
Director of Investigations, CI, and the Regional Chief Compliance Officer
(Collection/Exam/EP/EO), as appropriate.
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Upon receipt of the District Counsel's memorandum, the Chief may choose to
prepare a report setting forth his or her views. The Chief 's memorandum
will be forwarded to the Director of Investigations, CI, or the Regional
Chief Compliance Officer (Collection/Exam/EP/EO) within 10 working days of
reviewing District Counsel's memorandum. A copy of the memorandum will be
forwarded to District Counsel.
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Within 30 days from the receipt of the Chief's memorandum, the Director of
Investigations, CI, or the Regional Chief Compliance Officer
(Collection/Exam/EP/EO) will inform the Assistant Regional Counsel (General
Litigation), in writing of his or her disagreement with District Counsel.
A copy of the Chief's report should be forwarded with this memorandum. The
decision of the Assistant Regional Counsel (General Litigation) on the matter
will be final.
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In the case of a third-party recordkeeper summons where the noticee has filed
a petition to quash the summons and District Counsel determines that the
summons should not be defended, arrange an informal conference with the Chief
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.
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The processing and protest procedure as set out in CI Handbook 9.5 Chapter
12 with respect to other prosecution cases will be followed in summons cases
involving requests for criminal action.
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[109.1]
10.8 (04-30-1999)
Reports on Adverse Decisions in Civil Proceedings to Enforce Compliance
with Summons
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If the Service receives an adverse decision in any civil summons enforcement
proceeding, the Chief of the division that issued the summons will promptly
send a brief report of the proceeding to the Regional Chief Compliance Officer
(Collection/Exam/EP/EO) or to the Director of Investigations, CI. Copies
of the report must be immediately sent to the District Counsel office serving
that district and to the Assistant Chief Counsel (General Litigation) CC:EL:GL
to enable these offices to consider pursuing a timely appeal.
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When the Government appeals an adverse summons enforcement decision, the
division that issued the summons must promptly inform district counsel and
the General Litigation Division of any developments affecting the summons
enforcement proceeding. Examples of information which must be reported are
set forth above at subsections 10.4.1.2(6) and 10.4.2(4).
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Except as provided by IRC 7609(b)(2) (right to proceeding to quash), no party
has a right to enjoin or quash a summons. Any such attempt to quash a summons
through injunction proceedings or other court action before the date fixed
for compliance should be immediately reported through normal channels to
the District Counsel. Make every effort to obtain copies of the pleadings
involved so they can be forwarded with the notification memorandum.
Exhibit [109.1]
10-1 (04/30/99)
Form 4443, Summons Referral
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Exhibit [109.1]
10-2 (04/30/99)
Letter to Summoned Person from District Counsel
(USE DISTRICT COUNSEL LETTERHEAD)Person to Contact (Name of Service employee
and title)Telephone NumberDateDate summons servedAppearance date as specified
in summonsTaxpayer's name (if not person summoned)The District Director of
your Internal Revenue Service district has notified me that you did not provide
the documents or testimony required by the summons identified above. Legal
proceedings may be brought against you in the United States District Court
for not complying with the summons. To avoid such proceedings, you should
keep the appointment we have arranged for you with (insert title and name)
on the date and at the time and address shown below. Please be sure you bring
with you all records and documents specified in the summons. If you have
any questions, please contact the person named above at the address or telephone
number shown.Sincerely yours,District CounselDate of your appointmentTimeAddress |
Exhibit [109.1]
10-3 (04/30/99)
Sample of a Declaration
IN THE UNITED STATES DISTRICT COURT DISTRICT FOR THE (NAME OF THE JUDICIAL
DISTRICT)United States of America and (name and title of Revenue Agent/Revenue
Officer/Special Agent), Petitioners v.(Name of summoned party), RespondentsCIVIL
ACTION NO. (leave blank)DECLARATION(Name of Service employee), petitioner
herein, declares:
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Paragraph (1): I am a duly commissioned Revenue Officer/Revenue Agent/Special
Agent employed in the (Collection/Examination/Criminal Division) of the Office
of the (District Director of Internal Revenue)(Director of International
Operations) at (address of office where assigned).
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Paragraph (2): In my capacity as a Revenue Officer/Revenue Agent/Special
Agent, I am conducting an investigation (into the tax liability of) (for
the collection of the tax liability of) (name of taxpayer) for the (year(s))
(taxable period(s)).
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Paragraph (3): In furtherance of the above investigation and in accordance
with Section 7602 of Title 26, U.S.C., I (or name and title) issued on (date)
an administrative summons, Internal Revenue Service Form (number) to (name
of summoned persons), (to give testimony) (and) (to produce for examination
books, papers, records, or other data as described in said summons). The
summons is attached to the Petition as Exhibit ( ).
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Paragraph (4): In accordance with Section 7603 of Title 26, U.S.C., on (date)
I served an attested copy of the Internal Revenue Service summons described
in Paragraph (3) above on the respondent, (name of summoned person) by (specify
manner of service), as evidenced in the certificate of service on the reverse
side of the summons.
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Paragraph (5): On (date), I served the notice required by Section 7609(a)
of Title 26, U.S.C., on (person(s) entitled to notice), by (show manner of
service, i.e., personal; left at last and usual place of abode; sent by
registered or certified mail; or left with the person summoned), as evidenced
in the certificate of service of notice on the reverse side of the summons.
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Paragraph (6): On (date), the respondent, (name of summoned person), (did
not appear in response to the summons) (appeared but refused to comply with
the summons by not producing the books, records, and other documents demanded
in the summons or by not giving testimony as to the matters requested in
said summons) (failed to appear because notice not to appear had been given
in accordance with Section 7609(b)(2) of Title 26, U.S.C.). The respondent's
refusal to comply with the summons continues to the date of this declaration.
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Paragraph (7): The books, papers, records, or other data sought by the summons
are not already in possession of the Internal Revenue Service (except as
follows: (specify any summoned materials that have been obtained since the
summons was served)). Paragraph (7) is a general provision. However, in the
event the Service does have some of the summoned material at the time of
enforcement proceeding, those materials should be excepted. Where the summons
seeks Forms W-2, 1099, or other items which the Service technically may have
in its possession, but are not available, the paragraph should be modified
to include a statement to the effect that these items are not readily accessible
or retrievable without undue administrative burden or expense, together with
an explanation thereof.
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Paragraph (8): All administrative steps required by the Internal Revenue
Code for issuance of a summons have been taken.
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Paragraph (9): It is necessary (to obtain the testimony) (and) (to examine
the books, papers, records, or other data) sought by the summons in order
(to properly investigate) (to collect) the federal tax liability of (name
of taxpayer) for the year(s) ) (for taxable period(s)). I declare under penalty
of perjury that the foregoing is true and correct.
Executed this day of , 19 .(Name of Person Seeking Enforcement)The appropriate
title changes should be made in preparing the declaration. Only one declaration
should be prepared where more than one Service employee is involved in issuing,
service, or designation as the party before whom the summoned party is to
appear. In such cases, paragraphs 4, 5, and 6 should be modified as illustrated
below:
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Paragraph (4): I have been advised by (specify title and name of person serving
summons), that on (date), in accordance with Section 7603 of Title 26, U.S.C.,
(s) he served an attested copy of the Internal Revenue Service summons described
in Paragraph (3) above on the respondent (name of summoned person) by (specify
manner of service). This is further evidenced in the certificate of service
on the reverse side of the summons.
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Paragraph (5): On (date), the notice required by Section 7609(a) of Title
26, U.S.C., was served by (specify title and name of person serving notice)
on (specify person(s) entitled to notice) by (specify manner of service,
i.e., personal; left at last and usual place of abode; sent by registered
or certified mail; or left with the person summoned). I have been apprised
of this by (specify title and name of person serving notice), and it is further
evidenced in the certificate of service of notice on the reverse side of
the summons. Paragraph (5) should be used when a summons is directed to a
third-party entitled to notice of the summons under IRC 7609(a).
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Paragraph (6): I have been informed by (specify title and name of person
designated as the individual before whom the summoned party was to appear),
that on (date), the respondent, (name of summoned person), (did not appear
in response to the summons) (appeared but refused to comply with the summons
by producing the books, records and other documents demanded in the summons
or by giving testimony as to the matters requested in said summons) (failed
to appear because notice not to appear had been given in accordance with
section 7609(b) (2) of Title 26, U.S.C.). The respondent's refusal to comply
with the summons continues to the date of this declaration.
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Internal Revenue Manual
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Hndbk. 109.1 Chap. 10 Enforcement of Summons
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(04-30-1999)
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![Exhibit [109.1] 10-1 (04/30/99) Form 4443, Summons Referral](27539001.GIF){kind=link}