Contents

• [109.1] 11.1 General
  • [109.1] 11.1.1 Contents

• [109.1] 11.2 Service

• [109.1] 11.3 Customer Notice Requirements
  • [109.1] 11.3.1 Delay of Customer Notice
  • [109.1] 11.3.2 Certificate of Compliance with the Right to Financial Privacy Act 1978
  • [109.1] 11.3.3 Date When Records Can Be Obtained After Issuance of Summons
  • [109.1] 11.3.4 Notice That No Legal Proceedings are Contemplated
  • [109.1] 11.3.5 Notice of Transfer of Financial Records to Another Department or Agency and Certification for Transferring Records

• [109.1] 11.4 Examination of Books and Witnesses
  • [109.1] 11.4.1 Time and Place of Examination

• [109.1] 11.5 Payments of Title 31 Summons Expenses

• [109.1] 11.6 Enforcement

• [109.1] 11.7 Disclosure

[109.1] 11.1  (04-30-1999)
General

1. Exam has many Bank Secrecy Act civil compliance responsibilities; Criminal Investigation has some responsibility for use of Title 31 summonses in relation to processing civil forfeitures predicted on Title 31 violations. The use and enforcement of the Title 31 Summons are provided for by the following:
   1. Title 31 USC 5311-5330
   2. Title 31 CFR Part 103 Subpart E, and
   3. Title 12 USC 3401-3422 (Right to Financial Privacy Act)
   4. A summons cannot be used for a Title 31 criminal investigation. 31 USC 5318(b)(1) restricts the use of Title 31 summonses to civil enforcement of the Bank Secrecy Act and certain other statutes.
2. Title 31 CFR 103.61 and 103.62 provide that a Title 31 Summons can only be issued by the Assistant Commissioner, Director of Investigations, and Chief, CI, for the purpose of perfecting civil seizures and forfeitures related to violations of the Currency and Foreign Transactions Reporting Act, as amended (USC 5311-5330) as well as Section 21 of the Federal Deposit Insurance Act (12 USC 1829b), Section 411 of the National Housing Act (12 USC 1730d), and Chapter 2 of Pub. L. 91-508 (12 USC 1951 et seq.), and related regulations, except with respect to the Currency and Monetary Instrument Reports (CMIRs). Other IRS officials who can issue a Title 31 Summons for civil enforcement of Title 31 are the Commissioner; the Deputy Commissioner; the Chief of Compliance (Operations); the Assistant Commissioner (Examination); the Regional Commissioners; the Chief Compliance Officers; District Directors; and the District Examination Division Chiefs.
3. A Title 31 Summons may be issued for the examination of books and records and or witnesses to:
   1. a financial institution (as defined in 31 CFR 103.11(n));
   2. an officer or employee of a financial institution, including a former officer or employee; or
   3. any person having possession, custody, or care of any other records and reports required under the Currency and Foreign Transaction Reporting Act or Title 31 CFR Part 103.
4. A Title 31 summons may not be issued after a Service related criminal referral has been made to the U.S. Attorney's office or to the DOJ Criminal or Tax Division. A criminal referral in this context means a Service initiated or attorney for the government grand jury request, and Service prosecution recommendations. A Title 31 summons may be issued after declination or final adjudication of a related Title 31 criminal investigation by DOJ.
5. A Title 31 summons cannot be used as a tool in a criminal investigation. The Service employee assigned to perfect a Title 31 predicated forfeiture:
   1. must not work on any criminal investigation related to the forfeiture, and
   2. must be able to articulate that no leads or investigative steps to establish criminal conduct were obtained or taken with the use of a Title 31 summons.
6. Evidence of a crime discovered during civil forfeiture perfection via the Title 31 summons can be used for criminal purposes. The grand jury cannot be used to perfect civil forfeitures, but information developed in the normal course of a grand jury investigation can be used for forfeiture purposes if a Rule 6(e) court order is obtained. (However, a 6(e) order cannot be obtained for administrative matters.)
7. The Title 31 summons is subject to the Right to Financial Privacy Act, Title 12 USC 3401-3422 Title 12 USC 3405 requires that notice be given to the customer whose financial records are sought to allow opportunity for filing of a motion to challenge the summons. Title 12 USC 3409 provides that the customer notice can be delayed up to 90 days upon application to a judge or magistrate under certain conditions, e.g., notice would seriously jeopardize an investigation.

[109.1] 11.1.1  (04-30-1999)
Contents

1. The portions to be completed on a Title 31 summons, including the certificate of service are self explanatory. A summons for books and records requires that the place for appearance shall not exceed 500 miles from where the financial institution operates or conducts business in the United States.

[109.1] 11.2  (04-30-1999)
Service

1. Any delegate of the Secretary authorized to issue a Title 31 summons, or any other person authorized by law to serve summonses, or other process may serve a Title 31 summons. The person summoned is given Part A of a Title 31 summons.
2. Service of a Title 31 summons may be made on any person by personal delivery or by registered mail; or upon any other person by delivery to an officer, managing or general agent, or any other agent authorized to receive process of service.

[109.1] 11.3  (04-30-1999)
Customer Notice Requirements

1. Notice to a customer whose records are being sought via a Title 31 summons applies only to records of customers of any office of the following institutions located in any state or territory of the United States, Puerto Rico, Guam, American Samoa, or the Virgin Islands:
   1. Bank
   2. Credit Card Issuer
   3. Loan or Trust Company
   4. Savings and Loan
   5. Homestead Association (including cooperative banks)
   6. Credit Union
   7. Consumer Finance Institution
2. If customer notice is required, the customer must be given in person or by registered mail, on or before the date of service of the summons (except if a delay of notice order was granted), the following parts of the Title 31 summons:
   1. Part B (copy of summons)
   2. Part C (customer notice)
   3. Part C-1 (instructions for completing and filing the attached motion and sworn statement)
   4. Part C-2 (Customer's Motion to Challenge Government's Access to Financial Records)
   5. Part C-3 (Customer's Sworn Statement for Filing a Challenge)

[109.1] 11.3.1  (04-30-1999)
Delay of Customer Notice

1. If the customer whose records are being sought is expected to take action to jeopardize the investigation, Title 12 USC 3409 provides that the required customer notice can be delayed for up to 90 days upon application to a judge or magistrate judge through a civil Assistant U.S. Attorney. The customer must be notified of the summons upon expiration of the delay by being given, in person or by registered mail, a completed Part E along with Part B of the summons. Parts C, C-1, C-2, and C-3 are not given to the customer. The time and place of examination must still be adhered to in obtaining the records.

[109.1] 11.3.2  (04-30-1999)
Certificate of Compliance with the Right to Financial Privacy Act 1978

1. If customer notice is required, a completed Part D of the summons must be given to the financial institution prior to receiving the financial records.

[109.1] 11.3.3  (04-30-1999)
Date When Records Can Be Obtained After Issuance of Summons

1. The customer has 10 days to file the motion if the customer notice was handed to the customer, or 14 days from the date of a registered mailing. The records may be obtained from the financial institution upon expiration of the applicable time frame, if the customer has not filed a motion with the court and served the issuing agency.

[109.1] 11.3.4  (04-30-1999)
Notice That No Legal Proceedings are Contemplated

1. If customer notice is required, the completed Part F of the summons must be given promptly to the customer if and when a determination is made that no legal proceeding against the customer is contemplated.

[109.1] 11.3.5  (04-30-1999)
Notice of Transfer of Financial Records to Another Department or Agency and Certification for Transferring Records

1. If customer notice is required and the records obtained are transferred pursuant to Title 31 CFR 103.65 and this chapter, a notice of transfer must be given to the customer by completing Part H of the summons and handing or mailing it (registered) to the customer. A certificate of the transfer is made by completing Part G and keeping it with the original summons.

[109.1] 11.4  (04-30-1999)
Examination of Books and Witnesses

1. Any person authorized to issue a Title 31 summons, or any officer or employee of the Treasury Department, or their designee, may receive evidence and examine witnesses. Any person authorized by law may administer any required oaths and affirmations. Testimony of any person may be taken under oath, and shall be written down or transcribed if under oath. A transcript copy shall be given to a witness upon request, unless the person issuing the summons determines, under Title 5 USC 555, that a copy should not be provided, in which case the witness may only inspect the official transcript.

[109.1] 11.4.1  (04-30-1999)
Time and Place of Examination

1. Title 31 CFR 103.61 through 103.67 does not state how much time a person summoned should be given to produce records or to give testimony. If the information is needed quickly, a short time for production is appropriate when absolutely necessary. Otherwise, give a longer period of time so as to not be burdensome.
2. If customer notice is required prior to obtaining the records, then the time of examination must not be before the expiration of the time allowed for the customer to file a motion to challenge the summons.

[109.1] 11.5  (04-30-1999)
Payments of Title 31 Summons Expenses

1. Title 31 CFR 103.67 states that persons summoned with a Title 31 summons shall be paid the same fees and mileage for travel in the United States that are paid witnesses in the U.S. courts. The government is not liable for any other expenses incurred for the production of documents.

[109.1] 11.6  (04-30-1999)
Enforcement

1. In the case of noncompliance with a Title 31 summons, the matter shall be referred by the Chief, Cl, or Exam, to the U.S. Attorney who may bring an action to compel compliance in any U.S. court within the jurisdiction:
   1. in which the investigation that gave rise to the summons is or has been carried on;
   2. in which the person summoned is a resident; or
   3. in which the person summoned carries on business or may be found.
2. When a referral is made for enforcement of a Title 31 summons, prompt notification must be made to the Director, Office of Compliance and Regulatory Enforcement, FinCEN
3. Prepare requests for enforcement of a Title 31 summons using the memorandum report format, to include the following information:
   1. the name and full address of the person whose property may be subject to seizure;
   2. a summary of the pertinent facts in the investigation;
   3. exactly what the Service employee is seeking to obtain;
   4. the relevancy of the records sought, including the relevancy of records pertaining to third parties;
   5. the need or importance of such evidence to the success or completion of the investigation;
   6. if a corporation was summoned, a statement of whether service of the summons has been made on a responsible officer and, if not, why;
   7. the circumstances surrounding contacts with the person summoned, explaining the defense(s) claimed for refusing to comply with the summons, and the circumstances under which the person summoned claimed the defense(s);
   8. a transcript (if recorded) of the questions asked to the person summoned and the person's responses;
   9. a description of any problems involving the imminent expiration of the statutes of limitation with respect to the seizure or forfeiture;
   10. a statement as to any known criminal investigations by other federal agencies of the individual, and, in the case of a corporation, corporate officers or employees;
   11. a statement as to any other known requests for summons or subpoena enforcement against the person or related parties; and
   12. if a pen register or any other electronic device was used in the investigation prior to the issuance of the summons, a statement why such device was used.
4. Approval is indicated by the signature of the Chief, Cl, or Exam. Transmit the original and one copy of the summons through the District Director or designee, to the U.S. Attorney's office in which venue lies.
5. The court may issue an order requiring the person summoned to appear before the Secretary or delegate to produce documentation or to give testimony explaining how the documentation was compiled and maintained, and to pay the costs of the proceeding. Any failure to obey the order of the court may result in a contempt charge. All processes in any case under this section may be served in any judicial district in which such person is found.

[109.1] 11.7  (04-30-1999)
Disclosure

1. Except as noted below, no officer or employee of the Treasury Department or any component thereof shall:
   1. Publicly name any person to whom a summons has been issued, or release any information to the public concerning that person or the issuance of a summons prior to the time and date set for the appearance or production or records.
   2. Disclose any testimony or material summoned (including the name of the witness) to anyone other than an officer or employee of the Department of Treasury. This nondisclosure position does not preclude any officer or employee of the Department of Treasury from disclosing material presented to obtain necessary information for investigative purposes. Any disclosure of tax information must be in accordance with the provisions of IRC 6103 as explained in this text and IRM 1.3, Disclosure of Official Information Handbook.
2. If disclosure of other than what is authorized is desired, a written request must be submitted to the Assistant Commissioner, Cl, for forwarding to the Director, Office of Compliance Regulatory and Enforcement, FinCEN.