IRS Summons to a Third Party: Duties and Rights

One of the most common evidence-gathering tactics used by the Criminal Investigative Division is the issuance of summonses. The IRS has very broad discretion to use summonses, which are authorized by statute to allow special agents to assess “correctness of a return or liability for tax,” or for the purpose of “inquiring into any offense connected with the administration or enforcement of the internal revenue laws”. Under the summons power, the IRS may compel the production of books, papers, records for examination, and the personal appearance of taxpayers and other third party witnesses to give testimony on matters which may be “relevant or material” to a pending investigation of possible crimes.

Under Section 7602(a)(2), the IRS is authorized to issue an administrative summons for a third party to appear before an IRS representative to produce documents or electronic data or give testimony under oath.  The IRS must comply with strict procedures in issuing and serving a summons on a third party.  Failure to comply with these procedures could invalidate the summons and render it unenforceable.

    1. The name and address of the person whose tax returns are under examination and the tax periods under examination.

    2. The identity of the person summoned. In the case of a corporation the summons must be served on a corporate officer, director, managing agent or other person authorized to accept service of process.

    3. A description of the items summoned, with reasonable certainty. The IRS cannot require a person to create a document, such as a summary chart, that does not exist.

    4. The date, place and time for compliance. A summoned party may not be ordered to appear sooner than 10 days from the date of service of the summons.  Section 7605(a)

In addition, the IRS must give the taxpayer notice of a summons issued to a third party. Notice must be given within three days of service of a third party summons, but not less than 23 days before the compliance date. IRC Section 7609(a)(1).  The notice must include a copy of the summons and an explanation of the taxpayer’s rights.  Section 7609(1)(a).  This notice allows the taxpayer to file a petition to quash the summons if necessary.  If the taxpayer files a petition to quash a summons, the IRS cannot examine the requested documents without the permission of the court or the consent of the taxpayer who files the petition. 

A taxpayer’s petition to quash a summons must be filed in U.S. District Court within 20 days after the notice is mailed or served.  The taxpayer may contest the summons by asserting privileges, such as the attorney-client privilege, tax-advisor privilege or the work-product privilege.  In addition, the taxpayer may raise procedural defects regarding the summons and the notice to the taxpayer.  Once the IRS establishes the four requirements of U.S. v. Powell, 379 U.S. 48 (1964), the burden shifts to the taxpayer.

In Jewell v. U.S. , 749 F. 3d 1295  (10^th Cir. 2014), Mr. Jewell filed petitions to quash summonses served by the IRS on four banks in Oklahoma for information related to Mr. Jewell and his businesses.  In his petitions, Mr. Jewell claimed that he received the required notices less than 23 days before the records were to be examined. Mr. Jewell claimed that the IRS had failed to follow the “administrative steps required by the Internal Revenue Code” and therefore the IRS could not meet one of the requirements of Powell.  The IRS admitted that Mr. Jewell had not received the statutory notices within the time required by the Internal Revenue Code, but argued that because Mr. Jewell had received the notices in time to file his petitions, the court should dismiss his petitions.   The IRS also argued that the language in the statute that states the taxpayer “shall” be given notice not less than 23 days before the compliance date does not signify a mandatory intent.  In holding for Mr. Jewell and quashing the summonses, the 10^th Circuit Court Appeals found that “shall” means “shall”, ie mandatory.  

If the summons is properly prepared, executed and served, and the taxpayer does not file a petition to quash the summons, the third-party record keeper cannot ignore it.  Instead, the recipient must appear before the IRS agent who issued the summons at the time and place specified.  In most cases where the taxpayer has not filed a motion to quash the summons, the recipient appears and provides the records and testimony covered by the summons.  However, although the summoned person must appear, he or she is not required to comply with the summons if there is a good faith basis for objection, including procedural defects or privileges.

An IRS administrative summons is a very serious matter and failure to properly respond or object can have significant consequences.  A person su=mmoned has the right to have an attorney present or other authorized representative. A summonsed witness may also request to have a non-attorney witness present at the production of documents and records, but he or she must first sign a non-disclosure waiver. Moreover, anyone permitted to appear as an observer must remain silent and cannot interrupt the proceedings in any way.

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