In general, the Internal Revenue Service (“IRS”) should only issue a Summons when the desired documentation or other information cannot be obtained voluntarily. When the desired documentation or other information can be obtained voluntarily, then a Summons is likely not appropriate.
Before issuing a Summons, the IRS should consider: (i) the possibility that judicial enforcement will be necessary; and (ii) the adverse effect on future voluntary compliance if enforcement is abandoned. The IRS should only issue a Summons when it is prepared to seek judicial enforcement in the event of non-compliance with the Summons.
A Summons should not require anything other than the provision of live testimony, the production of existing documentation, or both. A Summons cannot require the preparation or creation of documentation, including tax returns, that do not currently exist. However, the taxpayer may be required, by a Summons, to appear and give testimony that would allow the IRS to complete a tax return for the taxpayer.
Internal Revenue Code (“IRC”) §7602 provides the IRS with Summons authority. Federal case law provides standards that the IRS must meet in order to have the Summons enforced.
The appropriate purposes for which a Summons may be issued are to: (i) ascertain the correctness of a tax return; (ii) prepare a tax return where none has been prepared; (iii) determine the tax liability of the taxpayer; (iv) determine the tax liability of the taxpayer’s transferee or fiduciary; (v) collect any tax liability; or (vi) inquire into any offense in regard to the administration or enforcement of the Federal tax laws.
The IRS’s right to examine records, pursuant to IRC §7602, includes the right to photocopy the records.