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Florida Bar Journal

The IRS and Their Pesky Summonses: A Primer on Enforcement and Common Defenses


With recent attacks on the IRS’s use of summons, a noteworthy opinion by the 11th Circuit Court of Appeals (later reversed by the Supreme Court), and newsworthy summons enforcement proceedings against Microsoft Corporation (when the IRS for the first time hired private civil litigators in a U.S. income tax audit1) and Facebook, Inc.,2 it seems time to present a quick primer on the nature of IRS summonses, their enforcement, defenses to them, and their impact on the statute of limitations.

To perform its investigative and tax collection functions, the IRS needs information from taxpayers and third parties. The most common reasons are when the IRS is auditing a tax return, attempting to collect tax due, and performing a criminal investigation.3 How does an IRS employee obtain this information? The IRS employee can ask for it, make an informal written request together with the answer due date,4 or issue a summons demanding the taxpayer or third party give testimony or produce the information by a specific date and time.

All a summons does is gather information. A summons does not establish tax liability, guilt or innocence, or enforcement action taken by the IRS. That is why summons enforcement proceedings are brief and summary in nature.5

The IRS is charged with administering and enforcing the Internal Revenue Code (I.R.C.). To do so, I.R.C. §6201 authorizes the IRS to make inquiries, and I.R.C. §7602 authorizes the IRS to summon, undertake examinations, and take testimony as a part of those responsibilities.

Types of Summonses
The IRS can issue a summons directly to a taxpayer, to witnesses, and to third-party recordkeepers.6 With regard to criminal investigations, the IRS is permitted to issue summonses as a part of such an investigation.7 This was not always the case. Due to uncertainty on when the IRS could issue a summons for a criminal investigation Congress amended the code to clarify that summonses could be issued by the IRS Criminal Investigation Division but, to give a bright-line test, Congress developed the “no Justice Department referral” requirement.8 That is, once the IRS refers a case to the Department of Justice for criminal prosecution, the IRS can no longer issue a summons.

There are other kinds of summonses as well. For example, the IRS can issue a summons to determine if books and records are being kept, to determine the identity of a numbered bank account, and to obtain information where the name of the taxpayer is unknown (John Doe summons).9

The IRS must undertake special steps when it issues a summons to a cable company seeking personally identifiable information from the cable company,10 when seeking health information protected by the Health Insurance Portability and Accountability Act (HIPAA), and when seeking any tax-related computer software code.11

Relevancy of Information Sought
The information sought in an IRS summons is not judged by the relevance standards used in deciding whether to admit evidence in federal court. Instead, the IRS may issue a summons for items of even potential relevance to an ongoing investigation, without regard to its admissibility.12 The IRS may investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not.13 The Fifth Circuit defined the test of relevancy in a summons enforcement proceeding as “whether the summons seeks information which ‘might throw light upon the correctness of the taxpayer’s return.’”14 This definition was later narrowed to require a realistic expectation rather than an idle hope that something might be discovered.15

Administrative Steps to Issue Summons
A summons must be issued by a government official with authority. The Secretary of the Treasury delegated authority to the commissioner of the IRS and to redelegate this authority to IRS employees.16 The Secretary of the Treasury also authorized the commissioner to redelegate this authority to IRS employees.17

In 1964, the U.S. Supreme Court issued its landmark decision in United States v. Powell, 379 U.S. 48 (1964). That case established the four requirements in order for an IRS summons to be valid: 1) The investigation must be pursuant to a legitimate purpose; 2) the inquiry must be relevant to that purpose; 3) the information sought must not already be in possession of the IRS,18 and all administrative steps must be followed.

The IRS must properly serve the summons. Service of a summons directed to the taxpayer is to be served by an attested copy delivered in hand to the person to whom it is directed or left at his last and usual place of abode.19 An “attested copy” of a document is one that has been examined and compared with the original, with a certificate or memorandum of its correctness, signed by the persons who have examined it.20 Although the bulk of authority provides that “attested” copies of a summons need not be provided,21 the Eighth Circuit requires attestation.22 In addition, summonses issued to third-party recordkeepers may be served by certified or registered mail to the last known address of the third-party recordkeeper.23

Proper service of a summons does not require that the summons be left with a person of suitable age and discretion. Service is sufficient if it is left at summoned party’s last and usual place of abode.24 The IRS employee who issued the summons may also serve the summons.25

For summonses issued to third-party recordkeepers, the IRS must serve a copy of the third-party recordkeeper summons on the taxpayer by hand delivery, left at usual place of abode, or sent by certified or registered mail26 within three days of the date the summons is served on the recordkeeper, but not later than 23 days before the day fixed in the summons as the day upon which such records are to be examined.27 There is a split of authority on whether the 23-day period is mandatory.28

There are some notable exceptions to the requirement that the taxpayer receive advance notice of a summons issued to a third-party recordkeeper. Included in the list of “no notice” third-party recordkeeper summonses are those that seek only to determine whether records of the business transactions or affairs of a person identified in the summons have been made or kept,29 the identity of a person owning a numbered bank account,30 that are issued in aid of collection,31 those issued by an IRS criminal investigator to a person who is not a defined third-party recordkeeper,32 John Doe summons,33 and when a court determines that there is a reasonable cause that there will be a spoliation of evidence.34

Summons Enforcement
For anyone who has seen an IRS summons,35 they look intimidating. The summons form has the seal of the Treasury Department and the word “SUMMONS” in large letters, and uses the words “you are hereby summoned and required to appear” along with a precise place, date, and time in which the summoned party is required to appear. But, what happens if a summoned party refuses to appear or otherwise comply with a summons? The IRS must seek enforcement of the summons through a proceeding in U.S. district court and obtain a court order to compel a taxpayer, witness, or third-party recordkeeper to appear and to produce information.36

Until the IRS seeks to enforce a previously issued summons, the issuance of a summons in and of itself does not present an art. III case or controversy, and the taxpayer or the person to whom the summons is directed cannot maintain an action to quash it.37 It is only after the IRS seeks enforcement of the summons that the taxpayer or the person to whom the summons is directed has an opportunity to attack the merits of the summons.38 Absent an effort by the IRS to seek enforcement through a U.S. district court, an IRS summons to appear, testify, or produce information “has no force on the summoned party and no punitive consequences can befall a summoned party who refuses, ignores, or otherwise does not comply with an IRS summons until that summons is backed by a [f]ederal court order.”39 The summoned party cannot be punished for disobedience of an IRS summons without providing an intervening opportunity to comply with a court order of enforcement.40

Prior to seeking enforcement, often the IRS will issue a “last chance letter” to the taxpayer to encourage compliance before a summons enforcement proceeding is initiated.41

To enforce a summons, the IRS files a petition in U.S. district court through an ex parte proceeding. Attached to such a petition is an affidavit by the agent who issued the summons which includes the necessary facts to establish that the agent’s efforts have met the four Powell factors. This affidavit demonstrates that the summons was issued in good faith.42 In response, the district court typically enters an order requiring the summoned party to show cause why the summons should not be enforced.43 That order must be served by a U.S. marshal or another designated person (which can include an IRS employee).44 The order to show cause includes a hearing date. A hearing is then held where the summoned party can challenge the enforcement of the summons. If the summoned party loses and the district court orders the summons enforced, the summoned party may appeal the enforcement order. If the court of appeals affirms the district court order or there is no appeal, the summoned party must comply or the district court will enter a second show cause order, this time requiring the taxpayer to show cause why he or she failed to comply with the enforcement order. A failure to show such cause justifies the entry of a civil contempt order. If the district court enters a civil contempt order and imposes a sanction, that post-judgment contempt order may be appealed.45

Proceedings to Quash and Intervene
A taxpayer who objects to a third-party recordkeeper producing records sought in a summons (such as, for example, if the information is privileged, if the summons was issued in bad faith, the summons was not issued under the proper procedures, or for any other legitimate reason), the taxpayer can seek to quash the summons.46 However, the taxpayer can only seek to quash if the taxpayer was entitled to notice of the third-party recordkeeper summons.47 Two common examples in which a taxpayer is not entitled to notice of summons and, therefore, not entitled to initiate a proceeding to quash the summons are those issued by the IRS in aid of collection48 and issued by the IRS’s Criminal Investigation Division, which are directed to someone who is not a defined third-party recordkeeper.49 These two types of summons are common, yet the inability of a taxpayer to challenge them is often misunderstood.

Likewise, the taxpayer may also intervene in an existing proceeding to quash initiated by a third-party recordkeeper provided the taxpayer was entitled to advance notice of the summons.50

A proceeding to quash a third-party recordkeeper summons must be “commenced” not later than the 20th day after the day notice is “given” by the IRS to the taxpayer.51 The date a notice is “given” is the date the notice was either hand-delivered or placed in the mail by the IRS. It is not the date of receipt.52 The date of commencement is the date the petition to quash is filed with the court, not the date the petition is mailed to the court for filing.53

A copy of the petition to quash summons must be sent by the taxpayer to the third-party recordkeeper and the IRS agent who issued the summons by the close of such 20-day period by certified or registered mail.54 A taxpayer’s failure to give timely notice to both the IRS and the third-party recordkeeper by registered or certified mail55 is deemed to have failed to institute a proceeding to quash, and the district court lacks jurisdiction to hear the proceeding.56 It is presumed that the notice was not timely mailed if the IRS does not receive the notice within 23 days after the summons was served, and the IRS is permitted to undertake the taking of testimony or receiving records.57

Nature of Proceedings
Summons enforcement proceedings are intended to be summary in nature.58 Once the IRS makes a minimal showing for enforcement of its summons, usually through an affidavit by the investigating IRS agent establishing that the Powell factors are satisfied, a heavy burden then falls on the taxpayer to disprove one or more of the Powell requirements or to show that enforcement would be an abuse of the court process, such as if the summons was issued in bad faith or for an improper purpose.59 This burden is satisfied only if specific facts are alleged and evidence to support the allegations is produced.

A summons opponent is entitled to a reasonable opportunity, including, if appropriate, an in-person adversary hearing to present legal argument as to why a summons should be quashed. But a summons opponent is not entitled in every case to cross examine IRS officials about their reasons for issuing a summons. Indeed, there is no requirement that a taxpayer have a full discovery opportunity in a summons proceeding.60 Doing so would contravene the summary nature of summons enforcement proceedings. The use of discovery devices in summons enforcement proceedings are limited to those cases in which the taxpayer makes a preliminary and substantial demonstration of abuse.61 A showing that enforcement of a summons might infringe on a taxpayer’s privileges is sufficient to stop enforcement of a summons.62

The decision whether to conduct an evidentiary hearing in a summons enforcement proceeding is within the district court’s discretion.63 In order to proceed to an evidentiary hearing, a taxpayer must make a sufficient threshold showing that there was an improper purpose behind an IRS summons.64 To make this showing, the taxpayer must do more than allege an improper purpose, he must introduce evidence to support his allegations.65

But to what degree must a taxpayer make allegations and present evidence to get an adversary hearing? Every federal circuit court except the 11th Circuit has held that mere bare allegations alone are not sufficient to justify an adversary hearing. The 11th Circuit’s view, however, was that a taxpayer’s allegations of improper purpose are sufficient to trigger a limited adversary hearing. The 11th Circuit reasoned that requiring the taxpayer to provide factual support for an allegation of improper purpose, without giving the taxpayer a meaningful opportunity to obtain such facts, saddles the taxpayer with an unreasonable circular burden, creating an impermissible “Catch 22.”66 The 11th Circuit’s reasoning makes sense. After all, evidence of bad faith is almost always exclusively in the possession of the IRS who issued the summons.67 Under the 11th Circuit’s approach, the taxpayer is given an opportunity to examine the IRS officials who issued the summons to see if there was any improper purpose when the IRS issued the summons.

Because there was a conflict between the 11th Circuit and every other federal circuit court, the Supreme Court granted certiorari and ultimately reversed the 11th Circuit.68 In doing so, the Supreme Court changed 50 years’ worth of precedent on the standard to obtain an adversary hearing. The Supreme Court outlined the new standard as follows:

“As part of the adversarial process concerning a summons’s validity, the taxpayer is entitled to examine an IRS agent when he can point to specific facts or circumstances plausibly raising an inference of bad faith. Naked allegations of improper purpose are not enough: The taxpayer must offer some credible evidence supporting his charge. But circumstantial evidence can suffice to meet that burden; after all, direct evidence of another person’s bad faith, at this threshold stage, will rarely if ever be available. And although bare assertion or conjecture is not enough, neither is a fleshed out case demanded: The taxpayer need only make a showing of facts that give rise to a plausible inference of improper motive. That standard will ensure inquiry where the facts and circumstances make inquiry appropriate, without turning every summons dispute into a fishing expedition for official wrongdoing.”

As one commentator put it, the IRS really lost in U.S. v. Clarke, 573 U.S. ___, 134 S. Ct. 2361 (2014) (Clarke II), because the Supreme Court reinterpreted the four Powell factors that have controlled summons enforcement actions since 1964 in a way that can make it easier for some taxpayers to delay summons enforcement.69

Defenses to Summonses
In addition to the lack of good faith defense in the IRS’s issuance of a summons, discussed above, other defenses are also available. Perhaps the most common is when a summons seeks privileged information, such as information that is protected by the attorney-client privilege and the work-product doctrine. These privileges may extend to tax accrual workpapers prepared as a part of a company’s audited financial statements. Those workpapers include a tax reserve for current, deferred, and potential tax liabilities. In addition, they include determinations of estimates of potential or contingent tax liabilities related to tax positions taken by the taxpayer on its tax returns. These determinations can offer a wealth of information to the IRS when auditing a tax return, including whether a position taken by a taxpayer is accurate. As a result, the IRS likes to see these workpapers when auditing a company. There has been recent resistance to summonses that seek tax accrual workpapers on the basis of the work-product doctrine. The First Circuit concluded in the U.S. v. Textron, Inc., 577 F.3d 21 (1st Cir. 2009), cert. den., 130 S. Ct. 3320 (2010), case that a taxpayer’s tax accrual workpapers were not prepared in anticipation of litigation and, therefore, were discoverable by the IRS. The Textron case has been criticized by other circuit courts.70 The IRS has announced a policy of restraint in seeking these workpapers.71

Another common defense is the assertion of the Fifth Amendment. The Fifth Amendment may be asserted in any proceeding, including a civil proceeding,72 but it must be invoked in the proper manner. Specificity is required in order to invoke its protection.73 The Fifth Amendment must be invoked on a document-by-document and question-by-question basis.74 A taxpayer’s “generalized fear of criminal prosecution for a violation of the tax laws is an insufficient basis for asserting a blanket claim of the Fifth Amendment privilege….”75 To validly raise the Fifth Amendment privilege, a taxpayer must comply with the summons and at the appropriate time the taxpayer may interpose the privilege pertaining to specific documents and response to individual questions upon reasonable belief that such testimony will pose a substantial and real hazard of subjecting them to criminal liability.76

The Fifth Amendment can be invoked to protect an individual from being compelled to personally produce documents, even if the contents of those documents were not privileged, if the “act of production” would have testimonial aspects that could be self-incriminating.77 An exception to the act-of-production Fifth Amendment privilege is for “required records.” That is, if a record is legally required for a regulatory purpose, customarily kept, and has public aspects, a Fifth Amendment privilege is not available.78 Examples are tax forms, including Forms W-2, 1099, tax returns, and employee earnings statements.79

The act of production can establish the existence of documents, authenticity of those documents, and the taxpayer’s possession and control of those documents and, as such, the act of production can be a testimonial act in and of itself which can be protected by the Fifth Amendment. However, if the IRS can establish that the taxpayer’s possession is a foregone conclusion, then there is no Fifth Amendment privilege to the act of production.80

Even if a summons seeks “relevant” information under the broad standards in summons enforcement proceedings, a summons can still be overbroad and burdensome. A summons is overbroad if it seeks information that is too indefinite,81 and it has been defined as “out of proportion to the ends sought.”82 Thus, an overbreadth summons is simply a summons that does not advise the summoned party what is required of him or her with sufficient specificity to permit the summoned party to respond adequately to the summons.83 There are situations where information sought by a summons can be relevant, yet so burdensome to produce that enforcement should be denied.84

Finally, on occasion a taxpayer will claim that a summons was not issued in good faith because the agent used threatening language (e.g., “I’ll put you in jail” or “I’ll have your tax returns audited”). Such language does not necessarily rise to the level of bad faith. Instead, the purpose of the good faith inquiry is to determine whether the IRS, as an agency, is honestly pursuing the goals of I.R.C. §7602 by issuing the summons.85 Bad faith is not simply an agent acting unreasonably or unsatisfactorily. Even if the motivation of an individual IRS agent is suspect, the summons may nevertheless be enforced absent a showing that the improper motivation somehow “infected the institutional posture of the IRS.”86

Certainly there are times when a taxpayer absolutely refuses to comply with a district court order compelling him to comply with the summons. In those cases, the district court has the power to find the taxpayer in contempt. Pursuant to 28 U.S.C. §1826, recalcitrant witnesses who refuse to comply with a court order without “just cause” may order confinement at a suitable place until the witness is willing to comply.87 Such incarceration cannot exceed 18 months,88 but there is authority authorizing incarceration for longer than 18 months.89 Another sanction is a per diem fine imposed for each day a contemnor fails to comply with an affirmative court order.90

Tolling of Statute of Limitations
The issuance of the summons itself does not toll the statute of limitations. However, if there is incomplete compliance with a summons or there is a challenge to the summons, the statute of limitations on assessment, collection, and criminal prosecutions is suspended. So, if a taxpayer is summoned and there is no resolution of the summons, then the statute of limitations is suspended beginning six months after the summons is served and ending with final resolution of such response.91 But who is the arbiter of “final resolution”? According to Treas. Reg. §301.76095(e)(3), the IRS is the final arbiter. This regulation explains that final resolution occurs when the summons or any order enforcing any part of the summons is fully complied with and all appeals or requests for further review are disposed of and the period of an appeal may be taken has expired. The regulation further indicates that determination of whether there has been full compliance “will be made within a reasonable time, given the volume and complexity of the records produced, after the later of the giving of all testimony or the production of all records requested by the summons.”

In cases when the taxpayer is entitled to notice of a summons issued to a third-party recordkeeper and initiates an intervention in a pending challenge to the summons or files an independent petition to quash such summons, then the statute of limitations is tolled during that summons enforcement proceeding.92

In evaluating a summons, remember that it is simply a tool by the IRS to gather information. It is certainly appropriate to determine whether the summons seeks any privileged information and, if so, it is worthwhile to discuss this with the agent who issued the summons. The agent may be persuaded not to seek enforcement of the summons. Otherwise, enforcement proceedings could have the unwanted effect of extending the statute of limitations. As the Supreme Court’s Clarke decision teaches, although it is possible to challenge a summons on the basis that it was not issued in good faith, that challenge is an uphill battle, even with the revised test announced in the Clarke decision.

1 The IRS hired the law firm of Quinn Emanuel Urquhart & Sullivan, LLP, a private law firm, in May 2014 and a month later it issued temporary Treas. Reg. §301.76021T(b)(3), without notice and comment, providing for third-party contractors like Quinn Emanuel to participate in the summons process and that the third-party contractor may receive data obtained through a summons and take testimony of a summoned person. Since that dispute, a new dispute has arisen over whether 174 documents Microsoft withheld under either the federally authorized tax practitioner privilege of I.R.C. §7525, work-product doctrine, and attorney-client privilege.

2 Facebook, Inc., was served with six summonses relating to issues of transfer pricing to which it ignored. The IRS filed a petition to enforce its summons and, on August 10, 2016, the U.S. District Court for the Northern District of California issued its Notice of Hearing and Order to Show Cause. The hearing is set for November 17, 2016. Case No. 3:16-cv-03777-LB.

3 Those employees are most frequently revenue agents, revenue officers, and special agents, respectively.

4 A revenue agent typically issues a Form 4564, Information Document Request, and a revenue officer typically uses a Form 9297, Summary of Taxpayer Contact.

5 U.S. v. Stuart, 489 U.S. 353 (1989).

6 Third-party recordkeepers are banks, consumer reporting agencies, lenders (including credit card companies), brokers, attorneys, accountants, barter exchange, regulated investment company, enrolled agents, owners and developers of computer software source code. I.R.C. §7603(b)(2).

7 I.R.C. §7602(b).

8 See Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA), Pub. L. No. 97-248, 96 Stat. 324 and I.R.C. §7602(d)(1).

9 I.R.C. §7609(c)(2).

10 Section 631 of the Cable Communications Policy Act of 1984, 47 U.S.C. §551.

11 I.R.C. §7612.

12 U.S. v. Arthur Young, 465 U.S. 805 (1984).

13 United States v. Powell, 379 U.S. 48 (1964).

14 U.S. v. Wyatt, 637 F.2d 293 (5th Cir. 1981) (citing Foster v. U.S., 265 F.2d 183 (2d Cir. 1959), cert. den., 360 U.S. 912 (1960)).

15 U.S. v. Harrington, 388 F.2d 520 (2d Cir. 1968).

16 Treas. Reg. §301.76021(b).

17 Treas. Reg. §301.7701-9(c).

18 The IRS is entitled to obtain relevant records from third parties to compare for accuracy any records obtained from the taxpayer. Sugarloaf Funding, LLC v. U.S.,  2009 TNT 193-11 (1st Cir. 2009).

19 I.R.C. §7603(a).

20 Mimick v. U.S., 952 F.2d 230 (8th Cir. 1991).

21 Kondik v. U.S., 81 F.3d 655 (6th Cir. 1996)

22 Mimick v. U.S., 952 F.2d 230 (8th Cir. 1991).

23 I.R.C. §7603(b).

24 I.R.C. §7603(a) and U.S. v. Bichara, 826 F.2d 1037 (11th Cir. 1987).

25 U.S. v. Crum, 288 F.3d 332 (7th Cir. 2002).

26 I.R.C. §7609(a)(2); but see Holt v. IRS, 2007 U.S. Dist. LEXIS 24995 at *7 (D. Ariz. Mar. 2, 2007), in which the court held a failure to comply with the administrative requirements of service does not necessarily bar enforcement of the summons when the taxpayer received a copy of the summons and timely filed a petition to quash despite the fact that it was mailed to the taxpayer by first class U.S. mail instead of registered or certified mail.

27 I.R.C. §7609(a)(1).

28 Azis v. U.S., 522 Fed. Appx. 770 (11th Cir. 2013) (court has equitable power to excuse the 23-day notice defect if taxpayer not prejudiced); Jewell v. U.S., 749 F.3d 1295 (10th Cir. 2014) (23-day notice is mandatory and an administrative requirement and summons can be quashed if notice period not given).

29 I.R.C. §7609(c)(2)(B).

30 I.R.C. §7609(c)(2)(C).

31 I.R.C. §7609(c)(2)(D).

32 I.R.C. §7609(c)(2)(E).

33 I.R.C. §7609(c)(3).

34 I.R.C. §7609(c)(3).

35 IRS Form 2039.

36 I.R.C. §§7402(b) and 7604(a).

37 Schulz v. IRS, 413 F.3d 297 (2d Cir. 2005).

38 Id.

39 Id. The Department of Justice, Tax Division (DOJ) contends that prior to a court order enforcing a summons, DOJ can prosecute a noncompliant party pursuant to either a) I.R.C. §7210(b), which is a misdemeanor with a maximum fine of $1,000, imprisonment for up to a year, or both, or b) it can also seek an order of contempt pursuant to I.R.C. § 7604(b). See Dep’t of Justice, Tax Division Summons Enforcement Manual (May 2006), Section II.B at 3 and IRM, para. 3. The Second Circuit Court of Appeals specifically rejected that position as a violation of due process. See Schulz, 413 F.3d at 303.

40 The Schulz court acknowledged in a footnote that §7604(b) permits a federal court to issue an attachment order to arrest a taxpayer who 1) refuses to comply with an IRS summons, and 2) the IRS fears he may flee the jurisdiction. However, such attachment orders are in the nature of a contempt order. A summoned party cannot be punished for not complying with an IRS summons without being provided with an intervening opportunity to comply with a court order of enforcement. Schulz v. IRS, 413 F.3d 297, 299 n. 1 (2d Cir. 2005).

41 IRM

42 U.S. v. LaSalle Nat’l Bank, 437 U.S. 298 (1978).

43 U.S. v. Riewe, 676 F.2d 418 (10th Cir. 1982).

44 Fed. R. Civ. P. 4.1.

45 U.S. v. Riewe, 676 F.2d 418 (10th Cir. 1982).

46 I.R.C. §7609(b)(2).

47 I.R.C. §7609(b)(2)(A).

48 I.R.C. §7609(c)(2)(D).

49 I.R.C. §7609(c)(2)(E).

50 I.R.C. §7609(b)(1).

51 I.R.C. §7609(b)(2)(A) and Mollison v. U.S., 568 F.3d 1073 (9th Cir. 2009).

52 Berman v. U.S., 264 F.3d 16 (1st Cir. 2001).

53 Stringer v. U.S., 776 F.2d 274 (11th Cir. 1985).

54 I.R.C. §7609(b)(2)(B) and Treas. Reg. §301.76094(b)(2)(iii).

55 Evenhand delivery is insufficient.

56 Treas. Reg. §301.7609-4(b)(3).

57 Treas. Reg. §301.7609-4(c).

58 U.S. v. Stuart, 489 U.S. 353 (1989).

59 U.S. v. LaSalle National Bank, 437 U.S. 298 (1978).

60 U.S. v. Stuart, 489 U.S. 353 (1989).

61 Robert v. U.S., 364 F.3d 988 (8th Cir. 2004).

62 Upjohn Co. v. U.S., 449 U.S. 383 (1981).

63 U.S. v. Tiffany Fine Arts, 469 U.S. 310 (1985).

64 Copp v U.S., 968 F.2d 1435 (1st Cir. 1992).

65 Id.

66 U.S. v. Clarke, 517 Fed. Appx. 689 (11th Cir. 2013) (Clarke I).

67 See Brief for Respondents, Clarke, No. 13-301 at 2 (U.S. March 17, 2014).

68 U.S. v. Clarke, 573 U.S. ___, 134 S. Ct. 2361 (2014) (Clarke II).

69 Jasper L. Cummings, Jr., Summons Enforcement and the Supreme Court, Tax Notes, August 18, 2014.

70 See U.S. v. Deloitte LLP, 610 F.3d 129 (D.C. Cir. 2010); Smith v. Life Investors Ins. Co. of America, 2009 U.S. Dist. LEXIS 96310 (W.D. Pa. 2009).

71 IRS Announcement 200263.

72 Maness v. Meyers, 419 U.S. 449 (1975).

73 U.S. v. Clark, 847 F.2d 1467 (10th Cir. 1988).

74 U.S. v. Davis, 636 F.2d 1028 (5th Cir. 1981).

75 U.S. v. Schmidt, 816 F.2d 1477 (10th Cir. 1987).

76 Id.

77 Fisher v. U.S., 425 U.S. 391 (1976).

78 In re Two Grand Jury Subpoena Duces Tecum Dated August 21, 1985, 793 F.2d 69 (2d Cir. 1986).

79 U.S. v. Clark, 574 F. Supp. 2d 262 (D. Conn. 2008).

80 U.S. v. Norwood, 420 F.3d 888 (8th Cir. 2005).

81 Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186 (1946).

82 U.S. v. Harrington, 388 F.2d 520 (2d Cir. 1968).

83 U.S. v. Malnik, 489 F.2d 682 (5th Cir. 1974).

84 U.S. v. Humble Oil and Refining Co., 488 F.2d 953 (5th Cir. 1974), aff’d on rehearing, 518 F.2d 747 (5th Cir. 1975).

85 U.S. v. LaSalle Nat’l Bank, 437 U.S. 298 (1978).

86 2121 Arlington Heights Corp. v. IRS, 109 F.3d 1221 (7th Cir. 1997).

87 In re Grand Jury Subpoena Duces Tecum, 955 F.2d 670 (11th Cir. 1992).

88 28 U.S.C. §1826(a).

89 U.S. v. Lippitt, 180 F.3d 873 (7th Cir. 1999) (two years); In re Lawrence, 279 F.3d 1294 (11th Cir. 2002) (over two years).

90 U.S. v. Ayres, 166 F.3d 991 (9th Cir. 1999).

91 I.R.C. §7609(e)(2).

92 I.R.C. §7609(e)(1).

Harris L. Bonnette, Jr., is a shareholder in Fisher, Tousey, Leas & Ball in Jacksonville. He received his J.D. from the University of Miami and an LL.M. in taxation from Washington University in St. Louis. He specializes in all federal tax controversies, and is board certified in taxation.

This column is submitted on behalf of the Tax Law Section, William Roy Lane, Jr., chair, and Christine Concepcion, Michael Miller, and Benjamin Jablow, editors.