Petition to Quash IRS Form 2039 Summons-battle tested legal pleading intended to be filed in federal district court against any IRS agent who issues administrative summons against you
2039 Summons Form-older
versions of this form issued by the IRS used to say at the top that it is for
citizens living "Abroad". If you live inside the United
States of America, you aren't required to appear at a summons.
Internal Revenue Manual, Section 5.17.6: Summonses
26 CFR §301.7602-1: Examination of books and witnesses
Authority to Summons:
26 U.S.C. Section 7602(a) discusses the authority to summons. It states that:
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(a) Authority to summon, etc.
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 any internal revenue tax or the liability at law or in equity of any transferee or fiduciary of any person in respect of any internal revenue tax, or collecting any such liability, the Secretary is authorized --
(1) To examine any books, papers, records, or other data which may be relevant or material to such inquiry;
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(2) To summon the person liable for tax or required to perform the act, or any officer or employee of such person, or any person having possession, custody, or care of books of account containing entries relating to the business of the person liable for tax or required to perform the act, or any other person the Secretary may deem proper, to appear before the Secretary at a time and place named in the summons and to produce such books, papers, records, or other data, and to give such testimony, under oath, as may be relevant or material to such inquiry; and (3) To take such testimony of the person concerned, under oath, as may be relevant or material to such inquiry.
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Therefore, the IRS must FIRST establish a liability BEFORE it can summons you. He must be proven liable with evidence BEFORE he can be summoned. If they don't meet the burden of proof in demonstrating a liability, then you aren't required to show up to the summons. Furthermore, there are only three sections of the entire Internal Revenue Code that mention the term "liability", and they are:
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26 U.S.C. Section 1441: Withholding of tax on nonresident aliens
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26 U.S.C. Section 1442: Withholding of tax on foreign corporations
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26 U.S.C. Section 1443: Foreign Tax Exempt Organizations
There are no implementing regulations under Title 26 that authorize the IRS to summons anyone.
“…we think it important to note that the Act's civil and criminal penalties attach only upon violation of regulations promulgated by the Secretary; if the Secretary were to do nothing, the Act itself would impose no penalties on anyone.” California Bankers Assn. v. Shultz, 416 U.S. 21 (1974)
All of the implementing regulations for 26 U.S.C. Section 7602 are associated with Title 27, which is the Bureau of Alcohol, Tobacco, and Firearms. Here is a list of the related parallel authorities for this section, ALL of which are related to Alcohol, Tobacco, and Firearms and NONE of which relate in any way with the individual income tax found in 26 U.S.C. Subtitle A:
Also, 26 U.S.C. §7601 authorizes the summons to be issued only within an internal revenue district.
TITLE 26 > Subtitle F > CHAPTER 78 > Subchapter A > § 7601
§ 7601. Canvass of districts for taxable persons and objects
(a) General rule The Secretary shall, to the extent he deems it practicable, cause officers or employees of the Treasury Department to proceed, from time to time, through each internal revenue district and inquire after and concerning all persons therein who may be liable to pay any internal revenue tax, and all persons owning or having the care and management of any objects with respect to which any tax is imposed.
There are NO internal revenue districts left. Treasury Order 150-02 abolished all of them and disestablished all IRS District Directors as a result of the IRS Restructuring and Reform Act of 1998. Therefore, the IRS agent who is executing the summons must prove that the party summonsed is within a nonexistent internal revenue district before he can further investigate. He won't be able to to this and you don't have to go beyond this. If you help him violate the above requirement by facilitating discover OUTSIDE of an internal revenue district, then you become an accessory after the fact to a violation of Constitutional rights in violation of 18 U.S.C. §3. Tell him you won't help him violate the law until he proves that both the subject of the investigation and you personally are within an internal revenue district.
26 U.S.C. §7621 authorizes the President to establish internal revenue districts, and under Executive Order 10289, he delegated that authority to the Secretary of the Treasury. Neither the President nor the Secretary of the Treasury have established any internal revenue district within any state of the Union. 4 U.S.C. §72 furthermore requires that all public offices shall be exercised ONLY in the District of Columbia and not elsewhere unless "expressly provided by law".
§ 72. Public offices; at seat of Government
All offices attached to the seat of government shall be exercised in the District of Columbia, and not elsewhere, except as otherwise expressly provided by law.
Note that the I.R.C. Subtitle A income tax is a tax upon "public offices" called a "trade or business". See:
Therefore, the hearing officer at the summons must show that you hold a "public office" in the United States government or that you are a nonresident alien with income from "sources within the United States", which means the federal government, before he can establish a liability for tax under 26 U.S.C. §871.
Enforcement of Summons:
26 U.S.C. Section 7604(b) states that there are only FOUR reasons why a person can be compelled to appear at a summons:
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(b) Enforcement
Whenever any person summoned under section 6420(e)(2), 6421(g)(2), 6427(j)(2), or 7602 neglects or refuses to obey such summons, or to produce books, papers, records, or other data, or to give testimony, as required, the Secretary may apply to the judge of the district court or to a United States commissioner for the district within which the person so summoned resides or is found for an attachment against him as for a contempt. It shall be the duty of the judge or commissioner to hear the application, and, if satisfactory proof is made, to issue an attachment, directed to some proper officer, for the arrest of such person, and upon his being brought before him to proceed to a hearing of the case; and upon such hearing the judge or the United States commissioner shall have power to make such order as he shall deem proper, not inconsistent with the law for the punishment of contempts, to enforce obedience to the requirements of the summons and to punish such person for his default or disobedience.
You will note that the three valid reasons for the summons are information related to (the titles of the respective sections are shown):
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Section 6420: Gasoline used on farms
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Section 6421. Gasoline used for certain nonhighway purposes, used by local transit systems, or sold for certain exempt purposes
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Section 6427. Fuels not used for taxable purposes
Click here for a summary of the relationship of laws that regulate summons.
U.S. Atty Manual §6-5.210 to 6-5.260: Summons Litigation-excellent summary of tax summons powers
What to
Do When the IRS Comes Knocking
IRS Restructuring and Reform Act of 1998, 112
Stat 685, Section 3415: Taxpayers Allowed to Quash all Third Party Summons-don't
cite this code section if you intend to file a motion in Federal District
Court because you have to be a "taxpayer"
to claim its benefits!
Federal Rule of Civil Procedure, Rule 45: Subpoenas-an IRS administrative summons is simply a species of administrative subpoena that may only be issued to federal agencies. Everyone else is a "protected person" and under the Fourth Amendment, any federal district court should be able to quash such an illegal summons.
Reisman v. Caplin, 375 U.S. 440 (1964)
This Court has never passed upon the rights of a party summoned to appear before a hearing officer under 7602. However, the Government concedes that a witness or any interested party may attack the summons before the hearing officer. There are cases among the circuits which hold that both parties summoned and those affected by a disclosure may appear or intervene before the District Court and challenge the summons by asserting their constitutional or other claims. In re Albert Lindley Lee Memorial Hospital, 209 F.2d 122 (C. A. 2d Cir.); Falsone v. United States, 205 F.2d 734 (C. A. 5th Cir.); and Corbin Deposit Bank v. United States, 244 F.2d 177 (C. A. 6th Cir.). We agree with that view and see no reason why the same rule would not apply before the hearing officer. Should the challenge to the summons be rejected by the hearing examiner and the witness still refuse to testify or produce, the examiner is given no power to enforce compliance or to impose sanctions for noncompliance.
If the Secretary or his delegate wishes to enforce the summons, he must proceed under 7402 (b), which grants the District Courts of the United States jurisdiction "by [375 U.S. 440, 446] appropriate process to compel such attendance, testimony, or production of books, papers, or other data." 4
Any enforcement action under this section would be an adversary proceeding affording a judicial determination of the challenges to the summons and giving complete protection to the witness. In such a proceeding only a refusal to comply with an order of the district judge subjects the witness to contempt proceedings.
It is urged that the penalties of contempt risked by a refusal to comply with the summonses are so severe that the statutory procedure amounts to a denial of judicial review. The leading cases on this question are Ex parte Young, 209 U.S. 123 (1908), and Oklahoma Operating Co. v. Love, 252 U.S. 331 (1920). However, we do not believe that this point is well taken here. In Young certain railroad rates could be tested only by a failure to comply, which occasioned a risk of both imprisonment and large fines, regardless of the willfulness of the refusal to comply. And in Oklahoma Operating Co. the laundry rate fixed by the Oklahoma Corporation Commission could be tested only by contempt with a penalty of $500 per day, each day being a separate violation. On the other hand, in tax enforcement proceedings the hearing officer has no power of enforcement or right to levy any sanctions. It is true that any person summoned who "neglects to appear or to produce" may be prosecuted under 7210 5 and is subject to a fine not exceeding [375 U.S. 440, 447] $1,000, or imprisonment for not more than a year, or both. However, this statute on its face does not apply where the witness appears and interposes good faith challenges to the summons. It only prescribes punishment where the witness "neglects" either to appear or to produce. We need not pass upon the coverage of this provision in light of the facts here. It is sufficient to say that noncompliance is not subject to prosecution thereunder when the summons is attacked in good faith. 6
Petitioners also point to 7604 (b) 7 as posing the risk of arrest should the Commissioner proceed under that section for an "attachment . . . as for a contempt." Arguably, [375 U.S. 440, 448] such a sanction, even though temporary, might be a penalty severe enough to bring the section within the rationale of Young, supra, but we do not so read 7604 (b). This section provides that where "any person summoned . . . neglects or refuses to obey such summons" the Commissioner may proceed before the United States Commissioner or the judge of the District Court "for an attachment against him as for a contempt." Upon a showing of "satisfactory proof," an attachment for the person so refusing is issued and he is brought before the United States Commissioner or the district judge who proceeds "to a hearing of the case." Upon the hearing the United States Commissioner or the district judge may "make such order as he shall deem proper, not inconsistent with the law for the punishment of contempts . . . ." The predecessor of 7604 (b) was adopted by the Congress in 1864 (13 Stat. 226) at a time when Congress was greatly concerned with tax collection delay. Cong. Globe, 38th Cong., 1st Sess. 2440-2441 (1864). The proponents of the bill emphasized that after arrest the witness could assert his objections to the summons. Cong. Globe, 38th Cong., 1st Sess. 2997 (1864). It appears to us that the provision was intended only to cover persons who were summoned and wholly made default or contumaciously refused to comply. Section 7402 (b) came into the statute in 1913 (38 Stat. 179) and has been uniformly used since that time. 8 As we read the legislative history, 7604 (b) remains in this [375 U.S. 440, 449] comprehensive procedure provided by Congress to cover only a default or contumacious refusal to honor a summons before a hearing officer. But even in such cases, just as in a criminal prosecution under 7210, the witness may assert his objections at the hearing before the court which is authorized to make such order as it "shall deem proper." 7604 (b).
Furthermore, we hold that in any of these procedures before either the district judge or United States Commissioner, the witness may challenge the summons on any appropriate ground. This would include, as the circuits have held, the defenses that the material is sought for the improper purpose of obtaining evidence for use in a criminal prosecution, Boren v. Tucker, 239 F.2d 767, 772-773, as well as that it is protected by the attorney-client privilege, Sale v. United States, 228 F.2d 682. In addition, third parties might intervene to protect their interests, or in the event the taxpayer is not a party to the summons before the hearing officer, he too, may intervene. See In re Albert Lindley Lee Memorial Hospital, supra, and Corbin Deposit Bank v. United States, supra. And this would be true whether the contempt be of a civil or criminal nature. Cf. McCrone v. United States, 307 U.S. 61 (1939); Brody v. United States, 243 F.2d 378. Finally, we hold that such orders are appealable. See O'Connor v. O'Connell, 253 F.2d 365 (C. A. 1st Cir.); In re Albert Lindley Lee Memorial Hospital, supra; Falsone v. United States, supra; Bouschor v. United States, 316 F.2d 451 (C. A. 8th Cir.); Martin v. Chandis Securities Co., 128 F.2d 731 (C. A. 9th Cir.); D. I. Operating Co. v. United States, 321 F.2d 586 (C. A. 9th Cir.). Contra, Application of Davis, 303 F.2d 601 (C. A. 7th Cir.). It follows that with a stay order a witness would suffer no injury while testing the summons.
Nor would there be a difference should the witness indicate - as has Peat, Marwick, Mitchell & Co. - that he [375 U.S. 440, 450] would voluntarily turn the papers over to the Commissioner. If this be true, either the taxpayer or any affected party might restrain compliance, as the Commissioner suggests, until compliance is ordered by a court of competent jurisdiction. This relief was not sought here. Had it been, the Commissioner would have had to proceed for compliance, in which event the petitioners or the Bromleys might have intervened and asserted their claims.
Finding that the remedy specified by Congress works no injustice and suffers no constitutional invalidity, we remit the parties to the comprehensive procedure of the Code, which provides full opportunity for judicial review before any coercive sanctions may be imposed. Cf. United States v. Babcock, 250 U.S. 328, 331 (1919).
United States v. Powell, 379 U.S. 57 (1964)
"We do not equate necessity as contemplated by this provision with probable cause or any like notion. If a taxpayer has filed fraudulent returns, a tax liability exists without regard to any period of limitations. Section 7602 authorizes the Commissioner to investigate any such liability. 12 If, in order to determine the existence or nonexistence of fraud in the taxpayer's returns, information in the taxpayer's records is needed which is not already in the Commissioner's possession, we think the examination is not "unnecessary" within the meaning of 7605 (b). Although a more stringent interpretation is possible, one which would require some showing of cause for suspecting fraud, we reject such an interpretation [379 U.S. 48, 54] because it might seriously hamper the Commissioner in carrying out investigations he thinks warranted, forcing him to litigate and prosecute appeals on the very subject which he desires to investigate, and because the legislative history of 7605 (b) indicates that no severe restriction was intended......"
"We are asked to read 7605 (b) together with the limitations sections in such a way as to impose a probable cause standard upon the Commissioner from the expiration date of the ordinary limitations period forward. Without some solid indication in the legislative history that such a gloss was intended, we find it unacceptable. 15 Our reading of the statute is said to render the first clause of 7605 (b) surplusage to a large extent, for, as interpreted, the clause adds little beyond the relevance and materiality requirements of 7602. That clause does appear to require that the information sought is not already within the Commissioner's possession, but we think its primary purpose was no more than to emphasize the responsibility of agents to exercise prudent judgment in wielding the extensive powers granted to them by the Internal Revenue Code. 16 [379 U.S. 48, 57] "
"This view of the statute is reinforced by the general rejection of probable cause requirements in like circumstances involving other agencies. In Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 216 , in reference to the Administrator's subpoena power under the Fair Labor Standards Act, the Court said "his investigative function, in searching out violations with a view to securing enforcement of the Act, is essentially the same as the grand jury's, or the court's in issuing other pretrial orders for the discovery of evidence, and is governed by the same limitations," and accordingly applied the view that inquiry must not be "`limited . . . by forecasts of the probable result of the investigation.'" In United States v. Morton Salt Co., 338 U.S. 632, 642 -643, the Court said of the Federal Trade Commission, "It has a power of inquisition, if one chooses to call it that, which is not derived from the judicial function. It is more analogous to the Grand Jury, which does not depend on a case or controversy for power to get evidence but can investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not." While the power of the Commissioner of Internal Revenue derives from a different body of statutes, we do not think the analogies to other agency situations are without force when the scope of the Commissioner's power is called in question. 17 "
"Reading the statutes as we do, the Commissioner need not meet any standard of probable cause to obtain enforcement of his summons, either before or after the three-year statute of limitations on ordinary tax liabilities has expired. He must show that the investigation will be conducted pursuant to a legitimate purpose, that the inquiry may be relevant to the purpose, that the [379 U.S. 48, 58] information sought is not already within the Commissioner's possession, and that the administrative steps required by the Code have been followed - in particular, that the "Secretary or his delegate," after investigation, has determined the further examination to be necessary and has notified the taxpayer in writing to that effect. This does not make meaningless the adversary hearing to which the taxpayer is entitled before enforcement is ordered. 18 At the hearing he "may challenge the summons on any appropriate ground," Reisman v. Caplin, 375 U.S. 440 , at 449. 19 Nor does our reading of the statutes mean that under no circumstances may the court inquire into the underlying reasons for the examination. It is the court's process which is invoked to enforce the administrative summons and a court may not permit its process to be abused. 20 Such an abuse would take place if the summons had been issued for an improper purpose, such as to harass the taxpayer or to put pressure on him to settle a collateral dispute, or for any other purpose reflecting on the good faith of the particular investigation. The burden of showing an abuse of the court's process is on the taxpayer, and it is not met by a mere showing, as was made in this case, that the statute of limitations for ordinary deficiencies has run or that the records in question have already been once examined. [379 U.S. 48, 59] "