7 August 2001

See contents of full IRS Handbook of Criminal Investigation: http://cryptome.org/irs-ci/irs-ci.htm

Part 9
Criminal Investigation

Chapter 4
Investigative Techniques

Section 5
Interviews

Contents

9.4.5.1  (06-30-1998)
OVERVIEW

  1. This chapter contains the following topics with respect to techniques of interviewing.
    • Definition
    • Purpose
    • Authority
    • Preparation and Planning
    • Conduct During Interview
    • Record of Interview
    • Right to Record Interview
    • Preserving the Record of Interview
    • Processing Record of Interview
    • Rights of Witnesses and Prospective Defendants During Interview

9.4.5.2  (06-30-1998)
DEFINITION

  1. An interview is defined as a meeting between two or more persons to get information. In investigations it usually involves a formal consultation or interrogation for the purpose of resolving or exploring issues.
  2. An interrogation is an interview in which a person is questioned to obtain information.
  3. A conference is an interchange of views. Often a conference includes an interrogation to obtain details of a person's views and contentions.

9.4.5.3  (06-30-1998)
PURPOSE

  1. Interviews are used to obtain leads, develop information, and establish evidence. The testimony of witnesses and the confessions or admissions of alleged violators are major factors in resolving tax investigations.
  2. Cases are presented to a jury through the testimony of witnesses. Therefore, it is the special agent's duty to interview the taxpayer and witnesses connected with the investigation.

9.4.5.4  (01-23-2001)
AUTHORITY

  1. IRC 7602--Authorizes the Secretary or his delegate to examine books and records and to take testimony under oath.
  2. Delegation Order No. 4 (as revised) authorizes the special agent to issue and serve a summons, to examine books and records, to question witnesses, and to take testimony under oath.
  3. The Special Agent in Charge (SAC), in assigning an investigation originating from a source other than a referral from the cooperating IRS functions, may authorize the special agent to interview the taxpayer, the taxpayer's representative, or one of the taxpayer's present employees, or to inspect the taxpayer's books and records. The SAC may authorize the special agent to make these inquiries independently or request the cooperation of a revenue agent or revenue officer, as appropriate, to assist in making the inquiries. When the services of a cooperating officer are necessary, the SAC will forward a request to the appropriate operating division. The cooperating division will assign an employee for the purpose requested within 30 days.
  4. A further discussion of the special agent's authority is contained in the summons handbook.

9.4.5.5  (06-30-1998)
PREPARATION AND PLANNING

  1. Preparation and planning for the interview are important steps in the interview process to obtain the maximum amount of information during the initial interview, as there may only be one opportunity to interview the subject or witness.

9.4.5.5.1  (11-17-2000)
Preparation

  1. Prior to the interview of any subject or witness:
    1. Determine the purpose for questioning the subject.
    2. Prepare an outline detailing the desired information.
    3. Review available information.
    4. Organize interview file.
    5. Obtain original tax returns if the interview involves the taxpayer, the taxpayer's representative, the taxpayer's present employees, or if inspecting the taxpayer's books and records.

9.4.5.5.1.1  (06-30-1998)
Determine Purpose for Interview

  1. Determine the purpose for questioning the subject or witness. Each interview will have specific goals unique to the subject or witness interviewed.

9.4.5.5.1.2  (11-17-2000)
Prepare Outline

  1. The degree of detail contained in the outline may vary depending upon the experience of the agent and the complexity of the investigation. The outline should contain only information which is relevant and material. Extraneous matter should be excluded because it may be confusing and may adversely affect the end result. Important topics should be set off or underscored and related topics listed in their proper sequence. A portion of a suggested outline is shown in Exhibit 9.4.5-1 (Suggested Outline for Questioning Person Who Prepared Returns, If Other Than Taxpayer). Specific questions should be kept to a minimum, since they tend to reduce the flexibility of the questioner. In addition to the topics to be discussed, the outline should include the following, when applicable:
    1. Identification of the subject.
    2. Information to be given the subject about his or her constitutional rights.
    3. The administration of the oath.
    4. The purpose of the interview.
    5. Questions showing that the subject was not threatened or intimidated in any manner, and that statements were made freely and voluntarily without duress or any promises whatsoever.

9.4.5.5.1.3  (06-30-1998)
Review Available Information

  1. Prior to any interview, review all the information and data gathered relating to the investigation. The information can be divided into three general categories:
    1. information which can be documented, and need not be discussed;
    2. information which may be documented, but needs to be discussed;
    3. information that must be developed by testimony.

9.4.5.5.1.4  (06-30-1998)
Organize Interview File

  1. The interview file should contain only data or information arranged in the order it is to be discussed or covered in the interview. The less data the agent has to cope with during the interview, the easier it is to vary the line of questioning. Delays in questioning caused by searching for a document in a voluminous file can be distracting and cause confusion. The files should contain sufficient data to cover all the matters under discussion, provided it is not unwieldy.

9.4.5.5.1.5  (01-23-2001)
Obtain Original Tax Returns

  1. The special agent must possess the original return or returns involved, if any were filed for the pertinent period, as a prerequisite to independently interviewing:
    1. the taxpayer;
    2. the taxpayer's representative;
    3. the taxpayer's present employees; if investigation involves employment tax returns, or
    4. inspecting the taxpayer's books and records.
  2. Exceptions may be made in instances where an examination is extended to include taxable periods for which the original return is not available and the examination is based on the taxpayer's retained copy or where such action is approved in writing by the SAC.
  3. The procedure outlined above is limited to a taxpayer's own tax matters and has no application in an inquiry where an agent is merely securing information from another person not under tax investigation, but who has engaged in transactions with the taxpayer or has data relevant to the tax liability under inquiry.

9.4.5.5.2  (11-17-2000)
Planning

  1. The following factors are important considerations when planning for a successful interview:
    1. Timing--Proper timing of the interview is essential to obtain information that is material for the development of an investigation.
    2. Suitable Surroundings--Make arrangements for suitable surroundings that will facilitate the interview process.

9.4.5.6  (06-30-1998)
CONDUCT DURING INTERVIEW

  1. During the course of the interview, be adaptable and flexible, follow through, and ensure that the basic questions such as who, what, where, when, how, and why have been addressed.

9.4.5.6.1  (11-17-2000)
Be Adaptable and Flexible

  1. Keep an open mind that is receptive to all information, and be prepared to develop that information. Flexibility prevents time being wasted and unnecessary questions being asked. A carefully prepared outline should provide enough leeway to allow the special agent to cope with any situation that may occur and permit the development of leads that may arise. Rigid adherence to any notes or outline can seriously handicap flexibility. The outline and data should serve only as aids and not as substitutes for original and spontaneous questioning.

9.4.5.6.2  (11-17-2000)
Follow Up

  1. Follow up on every pertinent lead and incomplete answer given. Questioning should continue until all reasonably expected information has been obtained from the witness. Incomplete answers have little or no value.
  2. The following suggestions will help the agent to follow up and to obtain answers that are complete and accurate:
    1. Use short questions confined to one topic which can be clearly and easily understood.
    2. Ask questions that require narrative answers. Avoid questions which require yes or no answers, whenever possible.
    3. Avoid leading questions that suggest part of the answer.
    4. Ask the witness about the factual basis for the answers he or she provides.
    5. Be alert so as to prevent the witness from aimlessly wandering. When possible, require a direct response.
    6. Keep the witness focused on the questions asked. Do not allow the witness to confuse the issue and leave the basic questions unanswered.
    7. Concentrate on the answers given by the witness, rather than on the next question to be asked.
    8. Have a clear understanding of each answer and eliminate any confusion before proceeding to the next question.
    9. When all important points have been resolved, terminate the interview. If possible, leave the door open for further meetings with the witness.

9.4.5.6.3  (11-17-2000)
Basic Questions

  1. Address the following basic questions:
    1. Who?--Complete identification should be made of all persons referred to during the interview. This includes: description; address; alias; doing business as; trading as; also known as; citizenship; reputation; and associates. If the person cannot be identified by name, a physical description should be requested and should include: age; height; weight; color of eyes, hair, skin; description of build; clothing; unusual markings; scars; mental or physical defects. Questions should also cover any aids worn by the individual, such as: glasses; hearing aids; wigs; toupees; canes; braces; or other items.
    2. What?--Obtain complete details as to what happened. Questions should relate to events, methods, and systems. Trace the event from its inception to its ultimate termination to develop the answer completely. For example, a sale starts with a customer placing an order, either orally or in writing, and terminates when the payment is ultimately placed in some depository. Every detail concerning what happened to the sale and what happened to every book, record, document, or person connected with it should be determined.
    3. Where?--Obtain complete details regarding the location of books, records, assets, bank and brokerage accounts, witnesses, clients, customers, safe deposit boxes, safes, etc. A description of the location should include the general area, as well as the identification of the person who has custody and control of the item. A complete description of the place should include the size, shape, color, and location.
    4. When?--The time can be established by direct questioning, by relating the incident to some known event, or by associating the event to some person, place, or thing.
    5. How?--Obtain complete details about how the event occurred, or how the operation was conducted. How did the subject acquire knowledge? Was it through seeing, hearing, feeling, smelling, or performing duties? How were transactions recorded: written; typed; matching entries; other?
    6. Why?--Determine the motive for an action by questioning the witness about his or her behavior. Find out what and who caused the witness to act. Ask how he or she was motivated to act. Special consideration should be given to these questions since they may be important in the development of intent items, especially when relating to or reflecting an evil purpose.

9.4.5.6.4  (11-17-2000)
Maintain Control

  1. Maintain full control of the interview. Limit each participant to the rights, duties, and privileges he or she is entitled to at the interview. Any deviation should be corrected immediately by informing the individual of his or her role and by not allowing him or her to go beyond it. If complete control of the interview cannot be maintained, end the interview and arrange to continue when the situation is corrected. The record should show all attempts to correct the individual's improper conduct, as well as the reason for terminating the interview before completion. All persons should be informed of the reason they are present at the interview and their activities confined to their individual roles.

9.4.5.6.4.1  (11-17-2000)
Role of Principal

  1. The principal's role is to answer questions and provide any explanations as appropriate. Encourage the principal to tell his or her side of the case. He or she has the right to refuse to answer any question that he or she feels is incriminating. This is a personal right and can be invoked only by the principal.

9.4.5.6.4.2  (06-30-1998)
Role of Witness

  1. The witness must comply with every request made by the agent that is both legal and reasonable. However, the witness has a right to refuse the request if, by answering the question, the information would incriminate him or her. This right cannot be invoked on the ground that the information will incriminate the defendant or someone else.

9.4.5.6.4.3  (11-17-2000)
Role of Special Agent

  1. The special agent should question the taxpayer about any matters relevant to the investigation, unless the agent feels that it would be to the government's disadvantage to ask questions that would reveal particular information. The special agent is responsible for the development of evidence and will conduct the interview in any manner deemed appropriate. If the agent grants permission to a cooperating officer to question the subject, the agent should instruct the officer in the method and technique to be used.
  2. The special agent should attempt to interview the principal during the course of an investigation to obtain all available information, while giving the principal every opportunity to explain his or her participation in the alleged criminal violation. There should be at least two investigating officers, or one officer and an IRS stenographer, at every interview when possible.
  3. Care must be taken to avoid making statements of any kind in discussion with the principal or his or her representative which could be construed as a compromise of any criminal features of the investigation.

9.4.5.6.4.4  (06-30-1998)
Role of Cooperating Officer

  1. The revenue agent or revenue officer may assist the special agent whenever any tax or technical accounting problems occur during the interview. The cooperating officer should not question the witness until the officer has discussed the matter with the special agent.

9.4.5.6.4.5  (06-30-1998)
Role of Accountant Representative

  1. The accountant's duty is to assist the client in all bookkeeping and accounting matters.

9.4.5.6.4.6  (06-30-1998)
Role of Legal Representative

  1. The attorney has a duty to furnish legal advice to the client relating to any matter discussed. This is the attorney's principal function at an interview.

9.4.5.6.4.7  (06-30-1998)
Role of Recorder

  1. The recorder's function is to prepare a permanent record of the interview. A mechanical recording device may be used in conjunction with the recorder or in lieu of a recorder, providing all parties to the proceeding have consented to its use.

9.4.5.7  (06-30-1998)
RECORD OF INTERVIEW

  1. The principal purpose of an interview is to obtain all the facts helpful to develop the investigation and resolve questions. It is necessary to prepare a permanent record of every interview. The record should memorialize facts pertinent to an investigation to be preserved for future use. The record of interview will usually take one of the following forms:
    1. Affidavit, Exhibit 9.4.5-2
    2. Statement, Exhibit 9.4.5-3
    3. Question and Answer Statement, Exhibit 9.4.5-4
    4. Memorandum of Interview, Exhibit 9.4.5-5
    5. Informal Notes or diary entries, Exhibit 9.4.5-6

9.4.5.7.1  (11-17-2000)
Affidavit

  1. An affidavit is a written or printed declaration or statement of facts made voluntarily and confirmed by the oath or affirmation of the party making it before an officer having authority to administer such oath. No particular form of affidavit is required at common law. It is customary that affidavits have a caption or title, the judicial district in which given, the signature of the affiant and the jurat, which properly includes authentication. Exhibit 9.4.5-2 is a suggested format containing all these characteristics.

9.4.5.7.2  (06-30-1998)
Statement

  1. A statement is a declaration of facts. Although the term has come to be used for a variety of formal narratives of facts required by law, it is in a limited sense, a formal, exact, detailed presentation of the facts. The statement may be prepared in any form and should be signed and dated by the person preparing it. If possible, the witness should also sign the statement and signify that they read and understood it or that it was read to them. A statement (Exhibit 9.4.5-3) generally contains the comments and remarks of the witness, and is used whenever it is not feasible to place the witness under oath, e.g. an affidavit, without the affiant's oath is in effect a statement.

9.4.5.7.3  (11-17-2000)
Question and Answer Statement

  1. A question and answer statement :
    1. Is a complete transcript of the questions, answers, and statements made by each participant at an interview.
    2. May be prepared from the recorder's notes or from a mechanical recording device.
  2. When no stenographer is readily available, mechanical recording devices may be used to record statements by advising the witness, in advance, of the use of the device (implied consent). The source used to prepare the transcript should be preserved and associated with the case file because it may be needed in court to establish what was said. The transcript (Exhibit 9.4.5-4) should be prepared on standard size plain bond paper with each question consecutively numbered and should contain the following:
    1. The time and place where the testimony is obtained.
    2. Name and address of person giving testimony.
    3. The matter to which the testimony relates.
    4. Name and title of person asking questions and person giving answers.
    5. The names and titles of all persons present, including attorney or accountant present to assist the witness. Also, the reason for each person being present, if not self-evident.
    6. Purpose of interview.
    7. Information given to the witness concerning his or her rights relating to self-incrimination and counsel, if appropriate.
    8. Administration of oath.
    9. Questions and answers establishing that the statement was made freely and voluntarily, without duress, and that no promises or commitments were made by the agents.
    10. Offer to allow witness to make any statement for the record, and, if advisable, an opportunity to examine and to sign the transcript.
    11. Jurat: The officer who administers the oath should complete the jurat. It is preferable, but not essential, to have the same officer who interviewed the taxpayer complete the jurat.
    12. Signatures of any government witnesses present.
    13. Signature and certificate of person preparing the statement, showing the source of the original information used to prepare it.
    14. If the statement is mechanically recorded, include a statement of consent.

9.4.5.7.3.1  (11-17-2000)
Off-Record Discussions

  1. Off-record discussions should not be permitted during a recorded interview of a taxpayer and should be kept to a minimum during a recorded interview of a witness.

9.4.5.7.4  (11-17-2000)
Memorandum of Interview

  1. A memorandum of interview is an informal note or instrument embodying information the person desires to establish in memory by the aid of written record. It is a record of what occurred at the interview and usually is in the format shown in Exhibit 9.4.5-5. A final typed memorandum of interview should be prepared without undue delay and include the following:
    1. the date, time, place, and persons present as well as what transpired;
    2. whether the witness was advised of his or her constitutional rights during the interview;
    3. signatures of the agents who were present at the interview, and date memorandum was signed;
    4. the actual date of the memorandum's preparation at the bottom of the memorandum (see Exhibit 9.4.5-5).

9.4.5.7.4.1  (01-23-2001)
Prior to Preparation of Record of Interview

  1. Facts pertinent to an investigation developed during an interview, interrogation, or conference should be reduced to writing and memorialized in an affidavit, statement, question and answer statement, or memorandum of interview. Any apparent differences of recollection between the officers should be resolved by recontacting the witness and reflecting the outcome in a subsequent document. If differences in recollection can not be resolved, the differences should also be recorded.

9.4.5.7.4.2  (06-30-1998)
Corrections to Finalized Memorandum

  1. If it becomes necessary to correct or supplement a memorandum after it is finalized (signed and dated), clearly state the date and reason for such action in a supplemental memorandum and attach it to the previous memorandum.

9.4.5.7.4.3  (11-17-2000)
Inspection of Memorandum or Notes

  1. Since the person interviewed may be a government witness in a criminal trial, bear in mind that 18 U.S.C. 3500 provides for defense inspection of any pre-trial statement about whose subject matter the witness has testified on direct examination. Case interpretation of this subsection covers substantially verbatim recitals of witnesses' oral statements which are contemporaneously recorded, including memorandums of interview. Handwritten notes made by an agent during an interview and used as the basis for a more detailed memorandum or report may be subject to inspection by a court and should be preserved and retained in the investigative file. Trial courts have substantial discretionary authority in interpreting the statute. Special agents, therefore, should confine memorandums to the facts developed in their interviews and should avoid opinions, conclusions, and other extraneous matters.

9.4.5.7.5  (11-17-2000)
Informal Notes or Diary Entries of Interview

  1. Informal notes should contain sufficient details to permit the agent to refresh his memory as to what transpired at the interview. Any method of recording the entries is sufficient, as long as it shows the time, place, persons present, and what occurred. Details of interviews should not be entered in the diary, but rather a memorandum should be made and kept in the investigative file (see Exhibit 9.4.5-6). A note should be made in the diary of the time, place, and persons interviewed.

9.4.5.8  (01-23-2001)
RIGHT TO RECORD INTERVIEW

  1. An interrogation or conference may be recorded only by a stenographer who is an employee of the IRS. This rule may be waived by the agent's Supervisory Special Agent (SSA). At the request of the Service or witness, which includes a principal, the SSA may authorize the use of a stenographer employed by the United States Attorney, a court reporter of the United States District Court, a reporter licensed or certified by any state as a court reporter to take depositions for use in a United States District Court. The use of this procedure may be permissible under IRC 6103(c), taxpayer waiver, or under IRC 6103(k)(6) where a disclosure is necessary for investigative purposes. When no stenographer is readily available, mechanical recording devices may be used to record statements by advising the witness, in advance, of the use of the device (implied consent). If the witness objects, the interrogator will refrain from mechanically recording the statement. If the witness elects to mechanically record the conversation, the Service will make its own recording.
  2. A witness or principal will be permitted to engage a qualified reporter, as described above, to be present at his or her expense to transcribe testimony, provided that the Service may secure a copy of the transcript at its expense or record the testimony using a mechanical recording device or its own stenographer or reporter. However, the Service retains the right to refuse to permit verbatim recording by a non-Service reporter or stenographer on the ground that disclosure would seriously impair federal tax administration (see text IRM 1.3, Chapter 35, Disclosure of Official Information Handbook, and Delegation Order No. 156 (as revised)).
  3. Upon request, a copy of an affidavit or transcript of a question and answer statement will be furnished to a witness promptly, except when it is determined by the Director of Field Operations that release should be delayed until such time as it will not interfere with the development or successful prosecution of an investigation. (See 26 CFR 601.107 (b)(1)).

9.4.5.9  (06-30-1998)
PRESERVING THE RECORD OF INTERVIEW

  1. All records of interview should be preserved whether the interview was recorded by use of a stenographer, a mechanical recording device, or handwritten notes.

9.4.5.9.1  (11-17-2000)
Use of a Stenographer

  1. The stenographer's original shorthand notes of a statement of a principal or a witness should be placed in the investigative file and be considered as part of the work papers relating to the investigation. Remove the pages containing such notes from the notebook, number them, staple in order, and seal in an envelope. Label the envelope with the following information: the investigation number, the name of the person whose statements are recorded; the date the statements were made; the number of pages of notes; and the name of the stenographer.

9.4.5.9.1.1  (01-23-2001)
In Connection with Collateral Investigation

  1. Package and identify the stenographer's notes and other verbatim recordings of statements made in connection with a collateral investigation in accordance with the procedure prescribed above and send it along with the collateral report to the field office that requested the
    investigation.

9.4.5.9.2  (06-30-1998)
Use of a Mechanical Recording Device

  1. Label recordings of statements by a principal or a witness made through the use of stenotype machines or sound recording devices and file in a manner similar to that prescribed above.

9.4.5.9.3  (11-17-2000)
Handwritten Notes

  1. A special agent's notes made contemporaneously to interviews of the taxpayer or prospective witnesses and which are used in the preparation of memoranda of interview, affidavits, and other similar reports should be preserved and retained in the investigative file. Notes should contain the date of the interview and the initials of their maker in the right corner.

9.4.5.10  (06-30-1998)
PROCESSING RECORD OF INTERVIEW

  1. Once the details of an interview have been recorded in the desired format, take the following steps to ensure proper processing of the record of interview.

9.4.5.10.1  (11-17-2000)
Review and Corrections

  1. Review every record of interview for any typographical errors, and for accuracy of context. If the statement is examined by the witness, permit him or her to correct typographical errors or make minor modifications to his or her testimony. Major changes in the original interview are not permitted. The witness may, however, submit an affidavit or give testimony to modify his or her original statements.

9.4.5.10.2  (06-30-1998)
Execution

  1. Every document made under oath should have a simple certificate evidencing the fact that it was properly executed before a duly authorized officer. The usual and proper form, referred to as the jurat , is subscribed and sworn to before me at (address), followed by the date, signature, and title of the officer. If the jurat shows an affirmation, the word affirmed will be sufficient. The agent administers the oath by having the witness stand, raise his or her right hand, and make a declaration that the document is true and correct.

9.4.5.10.3  (11-17-2000)
Persons entitled to copies

  1. Upon request, furnish a copy of an affidavit or transcript of a question and answer statement to a witness promptly, except when it is determined by the Director of Field Operations that release should be delayed until such time as it will not interfere with the development or successful prosecution of a tax matter. A memorandum of interview does not have to be turned over to the witness.

9.4.5.10.4  (11-17-2000)
Subsequent use by Special Agent

  1. The record of interview generally is not admissible as evidence at the trial, but may be used to refresh the memory of a witness or to discourage a witness from changing his or her testimony. It may also be used to impeach a witness on the stand when his or her previous statements are inconsistent with his or her testimony or to furnish a basis for prosecution of a witness who testifies falsely at the trial. If the statement constitutes a confession or an admission against interest, the pertinent parts may be used as such in evidence at the trial. The record also serves as a valuable source of information for subsequent examinations if it contains the personal and financial history of the taxpayer. It may be used to establish a starting point for a subsequent net worth investigation or to provide leads to other violations by the subject or other individuals.

9.4.5.11  (11-17-2000)
RIGHTS OF WITNESSES AND PROSPECTIVE DEFENDANTS DURING INTERVIEW

  1. All persons called as witnesses, whether prospective defendants, natural persons, or corporate entities and whether appearing as witnesses in response to a court or grand jury subpoena, Commissioner's summons, or simple request to appear for an interview, have rights and obligations defined by the United States Constitution, statutes, and court decisions.
  2. A potential conflict of interest situation may arise where there is dual representation; that is, where a summoned third-party witness is represented by an attorney, certified public accountant, or other person who also represents the taxpayer or another interested party (see Third Party Witnesses).

9.4.5.11.1  (11-17-2000)
Right to Advice of Counsel

  1. A witness in a criminal investigation has the right to be accompanied, represented, and advised by counsel. (See 26 CFR 601.107(b)(1)). The witness should be informed of this right if an inquiry is made regarding it. However, counsel should not be permitted to control or censor the replies of the witness nor attempt to interfere with the examination or impede or delay the progress of the interview, interrogation, or conference.

9.4.5.11.2  (11-17-2000)
Constitutional Rights

  1. The principles relating to constitutional rights shall be followed during the interview, interrogation of or conference with a person who may be a possible defendant in a criminal trial.
  2. Constitutional protections are provided in the Fourth, Fifth, and Sixth Amendments.
  3. Fourth Amendment--The Fourth Amendment provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be searched.
  4. Fifth Amendment--The Fifth Amendment provides, in part: No person shall be compelled in any criminal case to be witness against himself, nor be deprived of life, liberty, or property, without due process of law.
  5. Sixth Amendment--The Sixth Amendment provides, in part: In all criminal prosecutions, the accused shall enjoy the right to have the assistance of counsel for his defense.
  6. Violation of Rights--The courts have long held if an officer of the United States obtains evidence, a statement, or a confession of a crime in violation of any of the above constitutionals rights, such evidence, statement, or confession, may not be admitted as evidence against such person.

9.4.5.11.3  (06-30-1998)
Duty to Inform Individual of Constitutional Rights

  1. The following sections describe the special agent's responsibilities relative to advising individuals of their constitutional rights during non-custodial and custodial interviews.

9.4.5.11.3.1  (11-17-2000)
Informing of Constitutional Rights in Non-custodial Interviews

  1. Advise the individual of constitutional rights during non-custodial interviews when the individual is a subject of an investigation, a corporate officer or employee who appears to be implicated in an alleged wrongdoing involving a corporation under investigation, or when a witness' statement would incriminate him or her.
  2. Do not use trickery, misrepresentation, or deception in obtaining any evidence or information. Additionally, do not use language which might constitute a promise of immunity or settlement of the principal's investigation or which might constitute an intimidation or a threat.
  3. To avoid an attack upon the admissibility of any statement or documentary evidence furnished by a subject under investigation, inform the subject of his or her constitutional rights at the beginning of a formal question and answer interview, even if the subject was previously advised.
  4. Failure to give taxpayers the constitutional warnings prescribed by Internal Revenue procedures has resulted in the exclusion of evidence obtained from the taxpayers.

9.4.5.11.3.1.1  (11-17-2000)
Subject of Investigation

  1. At the start of the first official interview with the subject of an investigation:
    1. Identify self as a special agent of the Internal Revenue Service;
    2. Produce authorized credentials to the subject for examination;
    3. State: As a special agent, one of my functions is to investigate the possibility of criminal violations of the Internal Revenue laws and related offenses.
  2. Advise the subject of the investigation as follows: In connection with my investigation of your tax liability (or other matter), I would like to ask you some questions. However, first I advise you that under the Fifth Amendment to the Constitution of the United States, I cannot compel you to answer any questions or to submit any information if such answers or information might tend to incriminate you in any way. I also advise you that anything which you say and any documents which you submit may be used against you in any criminal proceeding which may be undertaken. I advise you further that you may, if you wish, seek the assistance of an attorney before responding.
  3. If the subject requests clarification, either as to his or her rights or the purpose of the investigation, give an explanation to clarify the matter for the subject.
  4. Terminate the interview if at any stage the subject indicates he or she wishes to exercise the right to withhold testimony or records or to consult with an attorney.
  5. In each investigation, make a contemporaneous memorandum stating:
    1. When and where the subject was advised of constitutional rights.
    2. What additional explanation, if any, was made.
    3. How the subject responded.
    4. Who was present at the time.

9.4.5.11.3.1.2  (06-30-1998)
Subject of Grand Jury Investigation

  1. If the subject of a grand jury investigation is interviewed by a special agent acting in the capacity of an assistant to the attorney for the government, advice regarding constitutional rights should be governed by the procedures applicable to grand jury investigations rather than by the procedures applicable to CI investigations. It is not relevant that the interview may be conducted outside of the actual presence of the grand jury and that there is a related investigation. Clarification as to advice appropriate to a particular investigation should be sought as needed from the attorney for the government.

9.4.5.11.3.1.3  (11-17-2000)
Corporate Officer or Employee

  1. When dealing with a corporate officer or employee who appears to be implicated in an alleged wrongdoing involving a corporation under investigation, advise the person of your identity and duties as a special agent of the Internal Revenue Service as required by above.
  2. Also, advise the individual that under the Fifth Amendment to the United States Constitution, they cannot be compelled to answer any questions or to submit any personal information which might tend to incriminate them in any manner. Advise the individual that anything they say and any personal documents submitted by them may be used in any criminal action which may be undertaken. The person may, if desired, seek the assistance of counsel before responding. If the person is the custodian of corporate records which are needed for the investigation, advise that he or she is required to produce such records since rights under the Fifth Amendment do not apply to a corporation and its records.

9.4.5.11.3.1.4  (06-30-1998)
Witness

  1. Advise the witness of constitutional rights as required above, if at any time the witness makes statements which would tend to incriminate him or her. Exhibit 9.4.5-7 is a copy of Document 5661, Statement of Rights, which sets forth the warning which is required at the first official meeting with the subject of an investigation and the warning which must be given to a person in custody prior to any interview.

9.4.5.11.3.2  (11-17-2000)
Informing of Constitutional Rights in Custodial Interrogations

  1. The Supreme Court has held when an individual is taken into custody or otherwise deprived of freedom by the authorities, the individual must receive the following warnings prior to any questioning :
    1. Of the right to remain silent;
    2. That anything the individual says can be used against him or her in a court of law;
    3. Of the right to an attorney, and if they cannot afford an attorney one will be appointed prior to any questioning, if desired.
  2. Opportunities to exercise the above rights must be afforded throughout the interrogation. After such warnings have been given, and such opportunity afforded to him or her, the individual may knowingly, voluntarily, and intelligently waive these rights and agree to make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation may be used against the individual.

9.4.5.11.3.2.1  (11-17-2000)
Interview of Persons in Custody

  1. Do not delay an arrested person's appearance before a United States magistrate for the purpose of an extensive interview or in an attempt to obtain a statement. If a statement can be obtained without unnecessary delay and if the arrested person is willing to make a statement, record it subject to the safeguards outlined below.

9.4.5.11.3.2.1.1  (11-17-2000)
Procedures

  1. Prior to questioning, warn the subject in clear and unequivocal terms of the right to remain silent, that any statements made can and will be used as evidence against them, and of the right to the presence of an attorney, either retained or appointed.
  2. Do not question if the following situations apply:
    1. If the person indicates they do not want to be interviewed.
    2. If at any time during the interview the person indicates that they do not want to answer any more questions.
    3. If at any time prior to or during the interview the person indicates the desire for the presence of an attorney. The interview can continue after the attorney is present and the person has had an opportunity to consult with the attorney.
  3. It is mandatory that enforcement personnel comply with the safeguards listed above. However, these safeguards do not apply to the normal administrative processing of an accused after being taken into custody, such as:
    1. Photographs.
    2. Fingerprints.
    3. Questions necessary to complete administrative forms and agency records.
  4. The safeguards also do not apply to:
    1. An interview of one person that develops evidence solely against another.
    2. Interviews to secure information for the timely protection of life, property, or the national security.
    3. Volunteered statements of any kind.

9.4.5.11.3.2.1.2  (01-23-2001)
Procedural Safeguards to Secure Admissibility of Statements

  1. To secure the admissibility of statements made during in-custody interrogations, the following procedural safeguards are required:
    1. The statement of rights must be given to a person in custody prior to an interrogation. Exhibit 9.4.5-8 is a copy of Form 5228, Waiver of Right to Remain Silent and of Right to Advice of Counsel. The statement of rights is contained within this form. This statement also appears in Document 5661 in card form.
    2. If practicable, the waiver form should be signed by the person to be interrogated before the interrogation is initiated.
    3. Include the original Form 5228 in the case report which is given to the United States Attorney.
    4. Give the first copy to the person signing the form.
    5. The SAC retains the second copy.
    6. The special agent who conducted the interrogation retains the third copy.

9.4.5.11.3.2.1.3  (11-17-2000)
Oral Waiver

  1. An oral waiver may be acceptable when impossible or impracticable to obtain a signed waiver. In such instances, the warning given and the defendant's waiver should be witnessed by another agent or other credible person or recorded by tape or video.

9.4.5.11.3.2.1.4  (11-17-2000)
Written Statement Obtained After Waiving Rights

  1. If a written statement is obtained from the person interrogated after waiving his or her right to remain silent, either by execution of the waiver agreement, or otherwise, include in the statement an introductory paragraph which indicates the person was advised of the right to remain silent and of the right to counsel, that the rights were waived and the statement made voluntarily.

9.4.5.11.3.2.1.5  (11-17-2000)
Spontaneous or Volunteered Statements

  1. Spontaneous or volunteered statements of any kind are not barred by the Fifth Amendment and are not affected by the Miranda and Escobedo decisions.
  2. In addition, the Supreme Court has held that statements given by a person, who is in custody or otherwise deprived of freedom, to a revenue agent conducting a tax examination, are inadmissible unless the person has been advised of their constitutional rights. This applies though there is no relationship between the tax examination and the reason for custody.

9.4.5.11.3.2.2  (11-17-2000)
Waiver of Constitutional Rights

  1. The privilege against self-incrimination must be specifically claimed or it will be considered to have been waived. In the Nicola case, the taxpayer permitted a revenue agent to examine his books and records. The taxpayer was indicted for income tax evasion and invoked his constitutional rights under the Fifth Amendment for the first time at trial by objecting to the revenue agent's testimony concerning his findings. The court said, on the question of waiver: But he did not refuse to supply the information required. Did he waive his privilege? The constitutional guarantee is for the benefit of the witness and unless invoked is deemed to be waived. Was it necessary for the defendant to invoke it in the first place before the revenue agent or could he wait until his trial on indictment for attempting to evade a part of his income tax? It was necessary for him to claim immunity before the government agent and refuse to produce his books. After the government had gotten possession of the information with his consent, it was too late for him then to claim constitutional immunity.
  2. A taxpayer who makes verbal statements or gives testimony to agents during an investigation or at a Tax Court trial, may still rely upon his or her constitutional privilege and refuse to testify at his or her trial for tax evasion. However, any statements inconsistent with his or her innocence may be used against him or her as admissions.
  3. If a witness has testified at a trial and voluntarily revealed incriminating facts, he or she cannot in the same proceeding avoid disclosure of the details. Waiver of constitutional rights will not be assumed lightly and no specific language is required in asserting them. In the language of the Quinn case: It is agreed by all that a claim of privilege does not require any special combination of words. Plainly, a witness need not have the skill of a lawyer to invoke the protection of the Self Incrimination Clause. As everyone agrees, no ritualistic formula is necessary in order to invoke the privilege.
Exhibit 9.4.5-1  (06-30-1998)
Suggested Outline for Questioning Person Who Prepared Returns, If Other Than Taxpayer
>
(1) Occupation and qualifications of preparer
a. Education
b. Experience
c. Enrolled
(2) Description of primary books and records in detail
a. Cash receipts and disbursements book
b. Journals: sales, purchases, cash
c. Invoices and other original documents
(3) Description of secondary books and records in detail
a. Ledgers: general and subsidiary
b. Trial balance books, and records of financial statements
(4) Extent of witness' audit of books and records
(5) Source of all information on returns
a. Books and records (tie in with return)
b. No records (obtain information in detailed form)
c. Oral information
d. Records and books of other third parties
(6) Items not shown on books or records (including income, assets, etc.)
(7) Instructions and data received from taxpayer and any other persons
(8) Information as to whether returns were explained to taxpayer, and to what extent
(9) Copies of workpapers used in preparation of returns and copies of returns
a. Tie in with return
b. Supporting data
c. Arrange to inspect the workpapers and copies of returns
(10) Conversations regarding tax matters with:
a. Taxpayer
b. Taxpayer's agent or other persons
(11) Details about witness' and taxpayer's knowledge concerning the signing and filing of each return, including:
a. Identification of each return prepared by witness
b. Where each return was prepared
c. Where each return was signed

Exhibit 9.4.5-2  (06-30-1998)
Affidavit

Exhibit 9.4.5-2 (Cont.)  (06-30-1998)
Affidavit
Exhibit 9.4.5-3  (06-30-1998)
Statement
>
(1) In re: Name and address of subject
(2) Time: Date and hour of interview
(3) Place: Location of interview
(4) On 19-, I, Special Agent questioned Mr. about . Mr. stated . Note: If feasible, the subject should be requested to examine the statement and sign it. If he refuses, insert the following legend at the end of the statement when applicable. 3This statement was read by Mr. (the subject), on 19- who stated that it was true and correct, but refused to be placed under oath or to sign it.3
(5) Date and Time
(6) Internal Revenue Service Special Agent
(7) Date and Time
(8) Witness
(9) Date and Time
(10) Witness
Exhibit 9.4.5-4  (06-30-1998)
Question and Answer Statement
>
(1) Testimony of John J. Jones, 115 South Street, Chester, Pennsylvania 19013, given in the office of Criminal Investigation, Internal Revenue Service, Room , United States Courthouse, 401 N. Broad Street, Philadelphia, Pennsylvania, at 9:30 a.m., on Tuesday, September 7, 19, about his Federal income tax.
(2) Present:
a. Mr. John J. Jones, Taxpayer
b. Adam Adams, Attorney
c. John Smith, Special Agent
d. Alexander White, Revenue Agent
e. Evelyn Green, Reporter
(3) Questions were asked by Special Agent Smith and answers were given by Mr. Jones unless otherwise specified.
(4) Mr. Jones, this interview is being recorded, as we agreed, by means of the tape recorder on your left.
(5) 1. Q. Mr. Jones, you were requested to appear at this office to answer questions concerning your Federal income tax for the years 19- to 19-, inclusive. First, I advise you that under the Fifth Amendment to the Constitution of the United States I cannot compel you to answer any questions or to submit any information if such answers or information might tend to incriminate you in any way. I also advise you that anything you say and any documents you submit may be used against you in any criminal proceeding which may be undertaken. Do you fully understand this? (If the taxpayer requests clarification, either as to his rights or the purpose of the investigation, the special agent will give such clarification.) Do you swear that the answers you are about to give to the questions asked will be the truth, so help you God? (The special agent will stand while administering the oath).
(6) 270. Q. Mr. Jones, have I, or has any other Federal agent, threatened or intimidated you in any manner?
(7) A. No.
(8) 271. Q. Have I, or any other Federal agent, offered you any rewards, or promises of reward or immunity, in return for this statement?
(9) A. No.
(10) 272. Q. Have you given this statement freely and voluntarily?
(11) A. Yes.
(12) 273. Q. Is there anything further you care to add for the record?
(13) A. No.
(14) After this statement has been transcribed, you will be given an opportunity to read it, correct any typographical errors, and sign it.
(15) United States of (  )
(16) America Eastern Judicial (  )
(17) SS District of Pennsylvania (  )
(18) I have carefully read the foregoing statement consisting of pages 1 to , inclusive, which is a correct transcript of my answers to the questions asked me on the day of , 19-, at the offices of the Criminal Investigation, Internal Revenue Service, Philadelphia, Pennsylvania, relative to my Federal income tax or other violation. I hereby certify that the foregoing answers are true and correct, that I have made the corrections shown and have placed my initials opposite each correction, and that I have initialed each page of the statement.
(19) Subscribed and sworn to before me this month/day/year.
(20) Special Agent
(21) Reporter, do hereby certify that I took the foregoing statement of - in shorthand, personally transcribed it from my shorthand pages, and initialed each page.
Exhibit 9.4.5-5  (06-30-1998)
Memorandum of Interview
>
(1) In re: Name and address of subject(s) being investigated
(2) Date and time of interview: Tuesday, July 19        a.m. to p.m
(3) Place: Location of interview
(4) Present:
a. Taxpayer, witness, etc.
b. Internal Revenue Agent (Accompanying officer)
c. Special Agent
(5) Interview conducted by Special Agent    . Note: All pertinent information relating to the interview should be in the memorandum in some logical manner, either in order of topics discussed, importance, chronological, or any other appropriate order.
(6) Special Agent
(7) Internal Revenue Agent (Accompanying officer)
(8) I (prepared) (dictated) this memorandum on , 19-, after refreshing my memory from notes made during and immediately after the interview with (taxpayer or witness name).
(9) Special Agent
(10) I certify that this memorandum has recorded in it a summary of all pertinent matters discussed with on 19-.
(11) Internal Revenue Agent (Accompanying officer)
Exhibit 9.4.5-6  (06-30-1998)
Informal Notes or Diary Entries
>
(1) On Wednesday July-19-at 10:00 a.m., I questioned Tom Brown of 1124 Euclid Street N.W., Washington, D.C., 20017 in his office, 117 Elm Street, Washington, D.C., about his purchase of a 19- Station Wagon from Smith Motors Inc. He stated that he purchased the Station Wagon, bearing serial number 1173945, for $32,250.00 from Joseph Smith, President of Smith Motors, and that he gave Mr. Smith his personal check number 117, dated 19 for $32,250.00. He agreed to submit an affidavit relating to his purchase. Internal Revenue Agent King, of Baltimore, Maryland, witnessed the interview which was concluded at 10:47 a.m.
(2) Special Agent                     July-19-

Exhibit 9.4.5-7  (06-30-1998)
Document 5661, Statement of Rights (Non-custody) & (In-custody)

Exhibit 9.4.5-7 (Cont.)  (06-30-1998)
Document 5661, Statement of Rights (Non-custody) & (In-custody)

Exhibit 9.4.5-8  (06-30-1998)
Form 5228, Waiver of Right to Remain Silent and of Right to Advice of Counsel

Internal Revenue Manual  

Part 9 Criminal Investigation Chap. 4 Investigative Techniques Sec. 5 Interviews

  (11-17-2000)


05/02/2001 14:28:50 EST