Most IRS requests are voluntary in form. An information document request in an audit or a request for a financial statement from a collector asks for cooperation. A summons demands it. When the IRS serves you with Form 2039, Summons, it is using the authority in IRC 7602 to compel testimony and records, and IRC 7604 gives federal district courts the power to enforce it.

That does not mean panic. It means a process, with steps and rights, that rewards people who prepare.

What the IRS can summon, and why

IRC 7602(a) authorizes a summons for the purpose of ascertaining the correctness of any return, making a return where none has been made, determining the liability of any person for tax, or collecting any such liability. The IRS can examine books and records that may be relevant or material, summon the person liable for tax or that person's officers or employees, summon anyone with custody of the person's books, or summon any other person it deems proper, and take testimony under oath.

IRC 7602(b) adds that those purposes include inquiring into any offense connected with the tax laws. But IRC 7602(d) bars the IRS from issuing or enforcing a summons against a person while a Justice Department referral for that person is in effect. Limits like that one are covered in limits on IRS summons power.

In practice, summonses come from three places: examiners in audits, revenue officers in collection cases, and special agents in criminal investigations. Who signed the summons tells you a lot about what kind of case you are in.

How a summons is served and when you must appear

IRC 7603(a) says a summons is served by an attested copy delivered in hand to the person, or left at the person's last and usual place of abode. Third-party recordkeepers such as banks, brokers, accountants and attorneys may also be served by certified or registered mail under IRC 7603(b). The IRS's form has several parts. According to IRM 25.5.2, Part A is the attested copy served on the summoned person, and Parts B through D are used for third-party summons notices.

IRC 7605(a) says the appearance date must be at least 10 days from the date of the summons, at a time and place that is reasonable. Records must be described with reasonable certainty under IRC 7603(a).

Your rights at the appearance

IRM 25.5.5.4 lists the rights and privileges a summoned person may assert. The main ones:

  • The right to be represented. A witness who appears must be allowed counsel, although the IRM says counsel may not control, interfere with or delay the interview.
  • The Fifth Amendment privilege against self-incrimination, discussed below.
  • Privileges for attorney-client communications, the federally authorized tax practitioner privilege in IRC 7525 in noncriminal matters, and spousal, clergy and psychotherapist privileges.
  • The right to make an audio recording, with 10 days' advance notice, at your own expense and with your own equipment, under IRC 7521 as described in IRM 25.5.5.4.4. The IRS will record too.
  • Witness fees and travel expenses on request, and reimbursement of certain compliance costs for third parties under IRC 7610.

One limit surprises people. Normally you can suspend an IRS interview to consult a representative. IRM 25.5.5.4.2 says that is not so when the interview is required by an administrative summons. And IRM 25.5.10.2 says your representative cannot appear instead of you on the appearance date.

The Fifth Amendment, carefully

IRM 25.5.5.4.1 explains the IRS's view. If answering a question would tend to incriminate you, you may assert the privilege and decline to answer. You generally have no privilege in the contents of voluntarily created, pre-existing documents, but the act of producing them can be testimonial because it admits they exist, that you have them, and that they are what the summons describes. Whether that act is incriminating depends on the facts. The IRM notes this situation can arise when a taxpayer is summoned to produce the records of a sole proprietorship.

Corporations and other collective entities have no Fifth Amendment privilege, and IRM 25.5.5.4.1.2 says a corporate officer cannot refuse to produce corporate records held in an official capacity, though the officer can still decline to give personally incriminating testimony.

The privilege must be asserted question by question. IRM 25.5.10.2 tells IRS employees to ask every question and record the privilege asserted for each. A blanket refusal to appear is not an assertion of the privilege. If there is any criminal exposure, this is a decision to make with a lawyer before the appearance date, not at the table.

Producing records the right way

Bring what the summons describes, organized so you can show what you produced. If you are withholding anything on the basis of a privilege, say so specifically. IRM 25.5.5.4.3 says that when a privilege is claimed, the IRS should ask for a privilege log to support it, but that a log can only be requested, because a summons cannot require a person to create a new document. A clear, voluntary log often prevents a dispute from becoming a referral.

If records do not exist or are not in your possession, say that under oath at the appearance. IRM 25.5.10.3 lists an appearance in which the summoned party denies under oath having the documents as a situation the IRS should generally not refer for enforcement, unless there is good reason to believe otherwise.

What happens if you do not comply

IRM 25.5.10.3 says a summoned party who fails to comply may face civil enforcement under IRC 7604 or criminal prosecution under IRC 7210. IRM 5.17.6.21 summarizes IRC 7210: a fine of not more than $1,000, imprisonment of not more than one year, or both, plus the costs of prosecution.

In civil enforcement, the IRS refers the summons to counsel, which usually sends a "last chance" letter setting a new appointment at least 15 days after the referral, according to IRM 25.5.10.4.1.3. If that fails, the government asks the district court to order compliance. A court order that is disobeyed can lead to civil contempt, which coerces compliance, or criminal contempt, which punishes defiance. The standards a court applies are in summons enforcement and the Powell standards.

What to do before the appearance date

Use the days you have:

  • Identify who issued it and why: examiner, revenue officer or special agent; audit, collection or criminal.
  • Read the description of records carefully. Is it reasonably certain? Does it cover years or entities that make sense?
  • Decide on representation now. A power of attorney lets your representative communicate with the IRS before the date, even though you still have to appear.
  • If you need more time for a valid reason, ask for a written extension. IRM 25.5.10.2 says the date may be continued by mutual agreement and formalized by letter.
  • If criminal exposure is possible, get legal advice about the Fifth Amendment before producing anything or answering anything.

Also note a small protection for collection cases. Under IRC 6331(g), the IRS cannot levy on your property on the day you are required to appear in response to a collection summons, unless collection is in jeopardy. If the summons came from a revenue officer, the specifics are in collection summonses.

A summons is a signal

The IRS usually issues a summons after informal requests did not work. It is an escalation, but it is also information. It tells you what the IRS wants, what it does not already have, and which kind of case you are in. Answer it with the same seriousness it was issued with. The firm's main site covers IRS audits in general, which is where many summonses start. A prepared appearance, with counsel and a clear plan for each document, is almost always better than either blind compliance or silence.