You Got an IRS Summons: What It Requires

A revenue officer or revenue agent handed you a document, or left it at your door, titled "Summons." It names a date, a time and an IRS office. It lists records you are supposed to bring. And it says you must appear and testify under oath.

This is not a routine notice. A summons is the IRS using its legal power to compel testimony and documents. It can be enforced by a federal judge. It can also be handled well, if you take it seriously and get the right help before the appearance date. Here is how I would think about it.

What a summons is and where the power comes from

IRC 7602 gives the IRS authority to examine books and records and to summon the person liable for tax, its officers and employees, anyone holding records about that person's business, or any other person the IRS deems proper. The summons can require you to appear at a set time and place, produce books, papers, records or other data, and give testimony under oath that may be relevant or material to the inquiry. The statute allows a summons for figuring out whether a return is correct, preparing a return where none was filed, determining a liability, or collecting one.

The standard form is Form 2039, Summons. The IRS also uses versions built for particular purposes, such as Form 6637 (for collection information), Form 6638 (for preparing a tax return) and Form 6639 (for financial records). Under IRC 7603, the IRS serves a summons by handing you an attested copy or by leaving it at your last and usual place of abode. Under IRC 7605(a), the appearance date generally must be at least 10 days from the date of the summons.

Step one: read the whole summons today

Write down three things:

• Who is summoned. Is it you, your business, or someone else, like your bank or your accountant?
• The appearance date, time and place.
• Exactly what records are requested, and for which years.

A summons issued to you is about your testimony and records. A summons issued to a third party about you is a different situation with a short deadline of its own, covered below.

Step two: do not plan to skip the appearance

If you neglect or refuse to obey a summons, IRC 7604 lets the IRS go to the United States district court where you live or are found to compel attendance, testimony and production. The court can also issue an attachment for contempt under IRC 7604(b). Separately, IRC 7210 makes failing to obey a summons a crime punishable by a fine of up to $1,000, up to one year in prison, or both, plus costs of prosecution.

The IRM tells IRS employees that your representative cannot appear in your place on the date in the summons. If you have a real conflict, such as an illness, the date can be rescheduled to another fixed date by agreement. Get that agreement in writing. Do not simply fail to show up.

Step three: get counsel before you say anything

This is the step that matters most. The IRM confirms that a person who appears in response to a summons must be given the opportunity to be represented by an attorney. Use it.

Why it matters:

• Testimony is under oath. Anything you say can be used. The IRM states plainly that information furnished voluntarily may be used even if it is incriminating.
• The Fifth Amendment is real but technical. You may refuse to answer a question if the answer would tend to incriminate you. The privilege generally does not protect the contents of documents you voluntarily created in the past, though the act of producing them can sometimes be protected. It does not apply to corporations, and an officer holding corporate records in an official capacity generally must produce them. These lines are hard to draw without a lawyer, and asserting the privilege has to be done question by question.
• A summons can signal something bigger. IRC 7602(b) says a summons can be used to inquire into any offense connected with the tax laws. If there is any chance of criminal exposure, you want an attorney involved before the interview, not after.

You can also ask to make an audio recording of the interview. Under the IRM, you must give 10 days advance notice and use your own equipment.

Step four: gather the records, carefully

Pull together what is requested, organized by year. Make copies. Keep a list of everything you hand over. If a request seems overbroad or seeks something you do not have, talk to counsel about raising that before the date rather than just leaving items out. The IRS can ask for a privilege log when a privilege is claimed, and a summons cannot force you to create a new document.

If the summons went to your bank, employer or accountant

A summons served on someone else that asks for records about you is a third-party summons. IRC 7609 adds special protections:

1. Notice. The IRS generally must give you notice within 3 days of serving the third party, and no later than the 23rd day before the date the records are to be examined. The notice comes with a copy of the summons and explains your right to challenge it.
2. Petition to quash. You have the right to begin a proceeding to quash the summons, in federal district court, no later than the 20th day after the notice is given. Within that same 20-day period you must mail a copy of the petition by registered or certified mail to the person summoned and to the IRS office named in the notice.
3. Tolling. If you are the taxpayer and you file a petition to quash, the statutes of limitation on assessment and criminal prosecution are suspended while the proceeding is pending, under IRC 7609(e)(1).

Twenty days is short. Count from the date notice was given, not from the date you finally opened the envelope.

One important exception: IRC 7609(c)(2)(D) says the notice rules do not apply to a summons issued in aid of collecting an assessment made against the person whose liability the summons concerns. In plain English, if a revenue officer is collecting tax already assessed against you, you may never receive notice of a summons to your bank.

The IRS also generally must tell you in advance that it may contact third parties. IRC 7602(c) requires a notice, provided at least 45 days before the contact period begins, with some exceptions.

What not to do

• Do not ignore it. Ignoring a summons leads to a court enforcement case, and possibly contempt.
• Do not go alone and "just explain." A summons interview is sworn testimony. Treat it that way.
• Do not destroy, alter or move records. That can turn a civil problem into a criminal one.
• Do not send a friend or a representative in your place without a written agreement from the IRS to change the arrangement.
• Do not miss the 20-day window if you received notice of a third-party summons and you have grounds to challenge it.

Where this fits in the bigger picture

A summons usually comes from a revenue officer working a collection case or an agent working an examination. If an officer has already been to your home or business, read what to do when a revenue officer is at your door. If the case involves unpaid payroll taxes, the summons may be part of a trust fund investigation, so read Letter 1153 and the trust fund penalty as well. For every date that can cost you rights, keep the IRS deadlines you cannot miss handy.

Get help before the appearance date

A summons has a date on it, and the decisions about what to say, what to produce and whether to challenge it should be made before that date. Our office represents taxpayers in IRS collection and examination matters. You can learn more at GetIRSHelp.com or call (813) 229-7100. Bring the summons and any IRS letters you have received.