The Internal Revenue Code (IRC) provides the IRS with summons authority and a mechanism to enforce compliance with summonses.

This IRM provides an introduction to the summons process by discussing:

Delegation Order 25-1 provides the levels of authority delegated to various IRS employees to approve and perform activities concerning summonses. See IRM 1.2.2.14.1, Delegation Order 25-1, Summonses, Oaths, Certifications and Related Functions.

The provisions of law applicable to IRS summons issuance and enforcement are contained in the following sections of the Internal Revenue Code:

Paragraph (9) in Delegation Order 25-1 lists the employees authorized to issue, serve and enforce summonses except "John Doe" summonses. See IRM 1.2.2.14.1, Delegation Order 25-1, Summonses, Oaths, Certifications and Related Functions.

The approval of the issuing officer’s manager, or any supervisory official above that level is required on a summons to a third-party witness, except that such approval is not required for a third-party summons issued by a special agent. See paragraph (8) of Delegation Order 25-1 in IRM 1.2.2.14.1 and IRM 25.5.1.2.3, Authority to Issue Summonses Requiring Approval (Except "John Doe" Summonses).

In general, the IRS should issue summonses only when the information is not already in the IRS’s possession and the taxpayer (or other witness) will not produce the desired records or other information voluntarily. A summons is specific to each case.

The IRS employee who issued the summons keeps a copy of the original summons in the administrative case file; (Page 1 of the summons labeled “Original”). The original summons is needed when referring a summons for enforcement. See IRM 25.5.10, Enforcement of Summons.

Counsel (and in some areas, Advisory) reviews requests to enforce summonses.

Certain summonses require approval. When approval is required, it is incumbent upon the IRS employee who issued the summons to maintain the proper approval records associated with each summons. All approved summonses, approval memoranda and counsel review documents where applicable, should be maintained with the summons in the administrative case file.

The table below lists commonly used acronyms and their definitions.

Definitions pertaining to summonses served upon third-party witnesses are in IRM 25.5.6.3, Definitions.

IRM 25.5, Summons, provides guidelines for all IRS functions in one multifunctional handbook. The sections are:

The basic legal concepts governing the use and enforcement of administrative summonses can be found in IRM 5.17.6, Legal Reference Guide for Revenue Officers, Summonses.

The Taxpayer Bill of Rights (TBOR) lists rights that already exist in the tax code, putting them in simple language and grouping them into 10 broad categories. Employees are responsible for being familiar with and acting in accordance with taxpayer rights. See IRC 7803(a)(3), Execution of Duties in Accord with Taxpayer Rights. For additional information about the TBOR, see https://www.irs.gov/taxpayer-bill-of-rights and Policy Statement 1-236 in IRM 1.2.1.2.36.

Additional summons guidance can be found on the Summons Knowledge Base.

A John Doe summons is issued to obtain the identity of a taxpayer or group of taxpayers being investigated. They are used when the name of a taxpayer, or group of taxpayers, is unknown and not readily available from other sources. IRC 7609(f) authorizes the IRS to issue a John Doe summons pursuant to an investigation of a specific, unidentified person or an ascertainable group or class of persons.

John Doe summonses can only be issued by high ranking individuals who are specifically authorized to do so in Delegation Order 25-1, (see IRM 1.2.2.14.1). Special agents, revenue agents and revenue officers are not authorized to issue these summonses. When considering a John Doe summons, refer to IRM 25.5.7, Special Procedures for John Doe Summonses.

The high ranking individuals authorized to issue a John Doe summons include the following:

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

These IRS employees also have the authority to:

The following IRS employees have the authority to issue summonses to the taxpayers under investigation. They also have the authority to issue summonses to third-party witnesses when their manager, or any supervisory official above that level, has given prior approval.

Generally, the supervisor provides approval for the issuance of a third-party summons by signing the summons as the approving officer. Official electronic signatures are permitted. Alternatively, the issuing employee may write and sign a statement on the summons indicating:

The IRS employees listed above in (1), a through l, are also authorized to:

The following IRS employees have the authority to serve summonses:

The following IRS employees are authorized to designate certain other IRS employees as the individuals who will set the time and place of examination, receive and examine summoned information and take the summoned person's testimony under oath. The persons authorized to designate are:

The following IRS employees may be designated to set the time and place of examination, to receive and examine summoned information, and to take the summoned person’s testimony under oath:

The following IRS employees are authorized to administer oaths and affirmations and to certify to those papers when necessary except that the authority to certify shall not apply to papers or documents whose certification is authorized by separate order or directive:

As discussed in IRM 25.5.1.3(1), Factors to Consider Before Issuing a Summons, IRS employees should attempt to obtain information informally from third-party sources. If the third party voluntarily provides the information a summons is not required. This approach also applies when seeking financial records from financial institutions, except in cases governed by the Tenth Circuit’s interpretation of the Right to Financial Privacy Act (RFPA). The RFPA requires that account owners be given notice of, and an opportunity to challenge, a government agency’s intent to obtain records of their finances from a financial institution. However, the RFPA also provides an exception to these requirements as they apply to the IRS. Specifically, 12 USC 3413(c) states: "Nothing in [the RFPA] prohibits the disclosure of financial records in accordance with procedures authorized by the [IRC]." In all circuits other than the Tenth, the IRS takes the position that an informal request for records is a procedure authorized under IRC 7602. The Tenth Circuit reached the opposite conclusion in Neece v. Internal Revenue Service, 922 F.2d 572 (10th Cir. 1990) and ruled that a bank’s voluntary disclosure of a customer’s financial records to the IRS, without prior notice to the customer, violated the RFPA. The Tenth Circuit reasoned that IRC 7609, not IRC 7602, contained the procedures for obtaining records concerning a taxpayer from a financial institution.

The Tenth Circuit states are Kansas, Oklahoma, Wyoming, Utah, Colorado, and New Mexico.

When issuing a summons, follow the procedures of IRC 7609 when applicable and refrain from seeking financial information from financial institutions by using only credentials or circular forms and letters; such as, Form 12470, Letter 1040 and ACS LP Letter 62 or any other non-summons method if the following conditions exist:

Seek the advice of Associate Area Counsel if there is any doubt as to whether Neece applies.

Do not attempt to obtain financial information voluntarily from financial institutions if the above conditions exist. To do otherwise could result in actual and punitive damages awarded in suits against the IRS, and the expenditure of valuable resources in defending such damage suits.

In RRA 1998, Congress enacted IRC 7609(j), which provides that nothing in IRC 7609 shall be construed to limit the IRS’s ability to obtain information, other than by summons, through formal or informal procedures authorized by IRC 7601 and IRC 7602. This section indicates that the IRS’s ability to informally seek the voluntary exchange of records (i.e., without a summons) constitutes a procedure authorized by the Code. Nevertheless, the IRS will follow the Neece ruling in cases described in IRM 25.5.1.3.1(3).

The IRS does not follow the Neece rationale in other circuits; therefore, information may continue to be obtained voluntarily from financial institutions in other circuits using credentials or voluntary methods.

Use credentials or circular forms and letters; such as, Form 12470, Letter 1040 and ACS LP Letter 62 to obtain information when possible.

Obtain clearance from CI and/or Area Counsel before issuing a summons in connection with a pending criminal case intended to do the following:

As required by IRC 7602(d), do not issue a summons to investigate a taxable year (or period) where the IRS has referred the same taxpayer’s case for the same type of tax and the same taxable year (or period) to the Department of Justice for criminal prosecution. IRC 7602(d) generally does not prohibit a summons issued regarding a different type of tax (e.g. income, employment, or excise tax) or a different year or taxable period. However, coordination with Counsel may be necessary. See IRM 5.1.5.11, Administrative Summons and IRM 5.1.5.12, Cases Under Jurisdiction of the Department of Justice.

Do not issue a summons to request proof of filing, copies of returns, or proof of payment if the desired documents are available from IRS records.

Employment and excise tax returns can be processed under IRC 6020(b).

IRC 6331(g) forbids the levy or seizure of property of the taxpayer on the day that the taxpayer, or officer or employee of the taxpayer, appears in response to a summons issued for the purpose of collecting any under-payment of tax.

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

Consult Associate Area Counsel with any questions concerning these statutes and the IRS’s summons authority.