- 25.5.2.1 Overview
- 25.5.2.2 Preparation and Use
- 25.5.2.3 Description of Summoned Party
- 25.5.2.4 Description of Information Requested
- 25.5.2.5 Chief Counsel Participation In Summoned Interviews
- 25.5.2.6 Designating More Than One Person to Interview a Summoned Witness
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This section contains the following topics:
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Preparation and Use
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Description of Summoned Party
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Description of Information Requested
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Prepare the face of the summons, Form 2039, by providing all information required on the form. The Service employee who will serve the summons must complete the copy to be given to the summoned party, Form 2039 Part A, by signing and dating the face of Form 2039 Part A in the space provided below the attestation clause.
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Prepare all summonses to be enforceable. To be enforceable, a summons must be prepared in sufficient detail to meet legal requirements. The first line of a summons begins with the words "In the matter of" . This line is the statement of liability which is designed to identify the taxpayer being examined or investigated.
If the liability is: Then the statement of liability should read: Corporate The Corporation's name must appear in the statement of liability on the summons. Note: The individual name of the stockholder or corporate officer should not appear even though the individual may be the summoned party. Individual The individual's name must appear in the statement of liability on the summons. Note: The corporate name or other individual's name should not appear even though the individual liability may stem from the corporation. (However, the instructions for Trust Fund Recovery Penalty investigation summonses are an exception to this rule. See IRM 25.5.6.4.1(3).) Husband and Wife who signed a joint return In the statement of liability, both the husband’s and wife’s names must appear. Refer to IRM 25.5.6.3.1.2 and IRM 25.5.3.2.(10) for instructions about giving notice and summoning one spouse or both. Husband and Wife who failed to file a return or who filed separately Prepare two separate summonses. In one, the statement of liability will read: "In the Matter of the Taxpayer-Husband. " In the second, the statement of liability will read: " In the matter of the Taxpayer-Wife." Partnership or a business operating under a trade name The Partnership or Business Name must appear in the statement of liability. Consolidated group of Corporations The consolidated group name should appear in the statement of liability, rather than the separate names of the group members, and add a parenthetical phrase indicating consolidated group status. Example: Middle American Holdings, Inc. and Subsidiaries (a consolidated group). Limited Liability Company The name of the limited liability company only should appear in the statement of liability. Do not include the names of individual members. Example: Gulf Recovery Fund, LLC. -
Do not use abbreviations on the summons for the entry under – "Periods" . State the specific calendar years, fiscal years, quarterly or monthly periods involved.
Note:
Use " quarterly period ended June 30, 1996" . Do not use"9606 " or "6/30/96" .
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If the summons is used to secure the names, addresses, and social security numbers of customers and clients from a return preparer’s records, the statement should read: In the matter of the tax liability of " the clients and customers for whom you prepared federal income tax returns for the taxable periods indicated below." This is a John Doe summons subject to the requirements and restrictions of IRC 7609(f). See IRM 25.5.7, Special Procedures for John Doe Summonses. (However, the Service is entitled to this information upon request under IRC 6107(b)(2). The Service is not required to serve a John Doe summons to obtain it).
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Collection personnel may use the following specialized summons forms for specific purposes. (Form 2039 may be used by all personnel, including Collection, for all purposes.)
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Form 6637, Collection Information Statement (serve only on the taxpayer to collect an assessed tax).
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Form 6638, Income Tax Return (serve only on the taxpayer to prepare an unfiled return).
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Form 6639, Financial Records (may be served on third parties, give notice as required by IRC 7609).
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State the full name and address of the taxpayer in the statement of liability. If the summons is issued pursuant to a delinquent return investigation of a married couple, issue two separate summonses. One should be captioned "In the Matter of the Taxpayer-Husband." The other should be captioned "In the Matter of the Taxpayer-Wife."
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State in full the name and address of the summoned party. Include this information even if it duplicates the name and address in the statement of liability.
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Add the title or official status (trustee, custodian, corporate or public official) to the name of a summoned party to show that the person is required to give testimony or produce records in that capacity.
Note:
Example:
John Smith, the president of the X Corporation, should be summoned as "John Smith, as President of X Corporation." Do not use "John Smith, President," or "John Smith." If the name of the custodian of records is not known and the Service does not need the testimony of that person, direct the summons to the corporation by listing the complete business name of the corporation as the summoned party, (e.g., The XYZ Corporation or XYZ Industries, Inc.). However, if the Service needs the testimony of the custodian of records and the name of that person is unknown, identify the summoned party as: Custodian of Records, XYZ Corporation.
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Use the home or business address of the summoned party.
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The wording used on Form 2039 should describe the desired documents with attention to detail as to the nature, ownership, and years involved.
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The description of the information requested must meet legal requirements. Refer questions about the wording of a summons to the Associate Area Counsel and in the instance of Collection, to Technical Support.
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If only testimony is sought, strike out the instructions in Form 2039 about the production of books, records, papers, and other data.
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Attach a blank copy of the form to be completed when a summons is issued to secure information to complete another document. For example, for the completion of a Collection Information Statement, attach a blank Form 433.
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The following subsections provide examples of descriptions of summoned records for summonses directed to an individual taxpayer or to an officer of a corporate taxpayer for corporate information.
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All payroll records of salaries or wages, advances, or drawings of the employees of the (individual, company, or corporation) which may now be in the control or possession of (witness name) for the years ending (date), or for the quarters ending (list each quarter). Also, any and all payroll records of wages, advances or drawings paid to the officers, partners, or employees of the (business entity) for the years ending (date(s)).
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The following described books, records, papers, and other data of the (business entity) which are in the possession, custody or control of (witness name) for the years ending (date(s)). To include:
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Any and all payroll records of salaries or wages paid to officers or employees, including cancelled checks and bank statements for the above-described periods.
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Any and all records, including, but not limited to, cancelled checks and bank statements relative to travel, entertainment, and advertising expenses for the above-described periods.
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All books and records, invoices, statements, and other documents pertaining to the operation of XYZ business for the period beginning (date(s)) and ending (date(s)), including but not limited to: (list).
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All books and records and other documents pertaining to the travel expense incurred and claimed on Schedule C of your tax return for XYZ business for the years (date(s)), including but not limited to (list).
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Bank Statements-All bank statements (and cancelled checks, if applicable) of the above-named taxpayer in your possession, custody, or control which reflect transaction in the (checking, savings, loan, etc.) account with the (name of bank) Bank, located at (address, branch) for the calendar years (list year).
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Insurance Policies-All (life, health, etc.) insurance policies currently in force in your possession, custody, or control, which are owned by the above-named taxpayer, or in regard to which the taxpayer pays the premium, or otherwise possesses an interest.
Note:
List a complete description of any known insurance policy, including name of insurance company and policy number.
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Vehicle Registration-All current registration certificates for motor vehicles owned by or registered in the name of the above taxpayer, or in which the taxpayer has a security, lien, or other interest.
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Deeds-Deeds to all real property in which the above-named taxpayer has, or may have, a beneficial interest or which the taxpayer may own either individually or jointly, or in which this taxpayer is named as a grantor or grantee.
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Investment Data-All stock broker’s statements and other records of the above-named taxpayer in your possession, custody, or control indicating purchase and sale of securities, dividends earned, and charges during the year(s) (list year(s)).
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Accountant’s Workpapers (not Audit or Tax Accrual Workpapers) - prepared in connection with the preparation of tax returns of the above-named taxpayer for the year(s) (list year(s)) in your possession, custody, or control. See IRM 25.5.4.4.7 and IRM 4.10.20.
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Collection Information Statement-All documents or records in your possession, custody and control reflecting the assets and liabilities of the above-named taxpayer(s) including, but not limited to, the following: all bank statements, checkbooks, cancelled checks, savings account passbooks and records of certificates of deposit for (specify current year and the preceding year) regarding accounts or assets held in the name of the taxpayer(s) or held for the benefit of the taxpayer(s); all records regarding stocks and bonds; deeds or contracts regarding real property, current registration certificates for motor vehicles, and life or health insurance policies currently in force, any of which items are owned, wholly or partially, by the taxpayer(s), or in which the taxpayer(s) have a security interest, or held for the benefit of (either or both of) the taxpayer(s), so that a current Collection Information Statement may be prepared. A blank copy of such Collection Information Statement is attached hereto to guide you in the production of the necessary documents and records.
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Individual Income Tax Returns-All books, papers, records, and other data in your possession, custody or control reflecting the receipt of income by you for the years (list year) through (list year), including but not limited to: Wage Tax statements (Forms W-2); Forms 1099 regarding interest and/or dividend income; employee earnings statements; records of deposits to bank accounts, cancelled checks, and check registers for the year(s) (list year) through (list year); and any and all other books, records, documents, and receipts regarding wages, salaries, tips, fees, commissions, and any other compensation for services (including the receipt of property other than money), income derived from business, gains from dealings in property, interest, rental, royalty, and dividend income, alimony, annuities, income from insurance policies and endowment contracts, pensions, income from the discharge of indebtedness, distributive shares of partnership gross income, and income from an estate or trust.
Note:
If the taxpayer has filed a return for the year(s) under investigation, do not summon documents that should be in the Service’s possession (e.g., Forms W-2 and Forms 1099) unless the Service can establish that the documents are lost or cannot otherwise be retrieved.
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Employment Tax Returns-All payroll records, cancelled checks, and check registers, records of wages paid in cash, employees’ social security account numbers, employees’ withholding exemption certificates for all employees, and all other books, records and papers containing information relative to wages paid during the above calendar periods by the above-named taxpayer.
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Financial Statement-All books, papers, records and other data in your possession, custody or control reflecting the assets and liabilities of the above-named taxpayer(s), including, but not limited to, the following: all bank statements, checkbooks, cancelled checks, savings account passbooks, and records of certificates of deposit, for the periods listed regarding accounts or assets held in the name of the taxpayer(s) or held for the benefit of that taxpayer(s); all records or documents regarding stocks and bonds, deeds or contracts regarding real property, current registration certificates for motor vehicles, and life and health insurance policies currently in force, any of which items are owned, wholly or partially, by the taxpayer(s), or in which the taxpayer(s) has a security interest, or held for the benefit of the taxpayer(s), so that a current financial statement may be prepared. A blank copy of such financial statement is attached hereto to guide you in the production of the necessary documents and records.
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Corporate Income Tax Returns-All books, records, papers, and other data in the possession, custody or control of the XYZ Corporation for its (calendar or fiscal) year ended (list year) and reflecting the receipt or accrual of all income and expenses of the operation of XYZ Corporation, including but not limited to: all corporate bank account records, including deposit tickets, cancelled checks, debit and credit memos, statements of account, check registers, saving account passbooks, and records of certificates of deposit; all financial statements including balance sheets and income statements; all stock books and records, minutes of board of directors and shareholders meetings, and articles of incorporation and amendments thereto; all records of loans made and dividends paid to shareholders and shareholders' loans to the XYZ Corporation; any and all books, records, documents, receipts, invoices, bills, canceled checks, ledgers, and journals regarding expenses or expenditures of the XYZ Corporation; and, any and all other books, records, documents, and receipts regarding income from the operation of the XYZ Corporation; compensation for goods and services, including fees and commissions, gains derived from dealing in property, interest, rentals, royalty, and dividend income, and income from the discharge of indebtedness.
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Chief Counsel attorneys may question summoned witnesses under oath and receive summoned books, papers, records, or other data in appropriate cases, such as investigations involving large deficiencies or liabilities, high profile taxpayers, and cases having unusually complex issues of fact or law. See Treas. Reg. §301.7602-1(b); Delegation Order No. 4, paragraph 13, (IRM 1.2.2). Counsel attorneys may directly question summoned witnesses and fully participate in a summoned interview along with an IRS officer or employee. The authority to directly question summoned witnesses is in addition to the other types of assistance given by Counsel attorneys to Service personnel in summoned interviews.
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Even when Chief Counsel attorneys participate in summoned interviews, Examination, Collection, and Criminal Investigation personnel are responsible for developing and conducting the examination or investigation. Chief Counsel attorneys may not issue, serve, or approve the issuance of any summons.
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More than one person may be designated to receive summoned information or to take testimony under oath at a summoned interview. Treas. Reg. § 301.7602-1(b).
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The summons form does not need to show the identity of the person or persons designated to take summoned testimony or to receive the summoned information. For the convenience of the summoned person, the Service identifies in the summons document at least one officer or employee who is designated as a person before whom the summoned person shall appear. When necessary, however, a summoned interview may be conducted by an officer or employee other than the one who may be identified in the summons document.
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When two or more persons have been designated to interview a summoned witness, the interview should primarily be conducted by one. When necessary for two or more persons to question a witness, they shall conduct the interview in seriatim order (i.e., one employee should conclude his or her questioning before the other begins). The Service and Counsel may determine that it is appropriate for Counsel to question a witness depending on the particular case or the developments arising during the interview.







