The IRS Summons
The Service of the IRS Summons
1.
IRS will serve an attested copy of a summons in accordance with IRC 7603. The face of the summons given to the summoned person should bear a signed attestation statement. The federal summons should be:
1.
handed to the person to whom it is directed, or
2.
left at his or her last and usual place of abode by leaving it with a person who is of suitable age and discretion, with instructions that the summons be given to the summoned individual, or by affixing the summons to the front door of the last and usual place of abode by a means that will not mar the finish.
2.
The Service of a Summons issued to a third-party record keeper by registered or certified mail, or personally deliver it to the person to whom it is directed. However, service by registered or certified mail is the preferred method of service for third-party recordkeepers. IRS will mail the summons to the last known address of the recordkeeper and document the case file by recording the method of service.
3.
After completing the certificate of service, place Form 2039 in the administrative file in the office of the issuing division for use in enforcement litigation, if necessary.
4.
If a witness requests that he or she be served with a summons as evidence of his or her legal duty to produce records, testify, or provide handwriting analysis, and indicates he or she will voluntarily comply, issue the summons for that purpose. This is commonly referred to as a “friendly summons.”
5.
If information requested by a summons is later determined to be unnecessary, compliance with the summons may be waived by the issuing official, provided the summons is not the subject of litigation.
6.
Witness fees and payments for mileage may be made to all summoned witnesses, whether a third-party witness, the taxpayer, or the taxpayers representative.
7.
Under IRC 7610(b)(2), if the summoned party is the taxpayer or the taxpayers officer, employee, agent, accountant, or attorney who was acting in that capacity when the summons was served, then that person is not entitled to the reimbursement of costs incurred in searching for, reproducing, or transporting summoned records. Under IRC 7610(b)(1), only certain summoned third-party witnesses are eligible for reimbursement of those costs. Excluded from eligibility are third parties summoned to produce records in which the taxpayer has a proprietary interest.
8.
If the summons is served on a third party and the taxpayer is entitled to notice of its issuance, provide Part C of Form 2039 to the noticees along with Part D of Form 2039, which explains the right to contest the administrative summons. If more than one person is entitled to notice of the summons, Parts C and D may be reproduced to provide such notification. This would occur, for example, in a situation where a bank account is listed in two names even if the two persons reside at the same address.
The copy of the summons provided to the noticees, Form 2039 Part C, is not required to bear an original signature. However, the copy served on the summoned party, Form 2039 Part A, must bear an original signature of the official serving the summons.
9.
These summonses are considered third-party summonses to which the notice requirement of section 7609(a) applies. If only one spouse is summoned, the other spouse is entitled to notice under section 7609(a) as a person identified in the summons. Even when both spouses are summoned (by issuing and serving separate summonses), each spouse is entitled to notice of the other spouse’s summons. This procedure preserves each spouse’s opportunity to move to quash the summons served on his or her spouse. See IRM 25.5.6.3.1.2
10.
A summons may be issued to a corporation for the production of corporate records. If the summons is directed to the custodian of records, it must be served personally on the custodian. If the summons is directed solely to the corporation, it must be personally served on a corporate officer or a person authorized to accept service of the summons on behalf of the corporation. Although IRC 7603 provides that a summons may be served by leaving it at the summoned person’s “last and usual place of abode,” this rule does not apply when a corporation is the summoned person because a corporation has no abode. Consequently, do not serve a summons on a corporation by leaving it at the custodian?s or the authorized person’s place of abode.
11.
If the summoned party fails to comply with the requirements of the summons, see IRM 25.5.10, Enforcement of Summons, for enforcement procedures.
Time and Place of Examination Set by Summons
1.
Generally, the following guidelines apply:
1.
The time and place of examination must be reasonable.
2.
The date for appearance should not be on a Saturday, Sunday, or a legal holiday.
3.
If a prospective witness is cooperative, the summons should be made returnable, if feasible, at the place that suits the witness? convenience.
4.
If the witness is uncooperative or attempts to hamper the investigation, it may be best to have him or her appear and produce his or her records at the agent?s office.
5.
In computing the time period for appearance or production of records, do not include the date of service or the date of appearance within the 10 or 23 day waiting periods.
2.
If the summons is directed to a third party and is subject to the notice and waiting period requirements of IRC 7609:
1.
Set the date for appearance at least 24 days after the date notice of the summons is given.
2.
Do not accept records from the summoned third party prior to the date of appearance because noticees have the right during this time period to initiate proceedings to quash the summons.
3.
If a proceeding to quash has properly been instituted, do not examine records unless the court so orders, unless the noticees who has instituted the proceeding consents.
3.
If the summons is not subject to IRC 7609 requirements, the date for appearance must be not less than 10 full days after the date of service, but the summoned person may voluntarily comply at an earlier time.
4.
A third-party witness may request service of a summons as evidence of a legal duty to testify or produce records. If the summons is not subject to IRC 7609 notice and waiting period requirements, the date for appearance is 10 or more days after service of the summons even if the person expects to respond on an earlier date. (See IRC 7609(c)(2) and IRM 25.5.6 for a discussion of third-party summonses not subject to the 23 day waiting period of IRC 7609.)
Do not use this procedure when the taxpayer or other person is entitled to a notice. Do not use this procedure for a John Doe summons, which may only be served after approval by a federal district court judge.
5.
If a summoned witness for a valid reason (such as illness) cannot appear on the date fixed in the summons, the date may be continued by mutual agreement. To formally extend the compliance date of the summons:
If you have received a Federal summons from the IRS and have questions, please feel free to call your professional team at Fresh Start Tax 1-866-700-1040