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U.S. Code as of:
01/19/04
Section 7609. Special procedures for third-party summonses
(a) Notice
(1) In general
If any summons to which this section applies requires the
giving of testimony on or relating to, the production of any
portion of records made or kept on or relating to, or the
production of any computer software source code (as defined in
7612(d)(2)) with respect to, any person (other than the person
summoned) who is identified in the summons, then notice of the
summons shall be given to any person so identified within 3 days
of the day on which such service is made, but no later than the
23rd day before the day fixed in the summons as the day upon
which such records are to be examined. Such notice shall be
accompanied by a copy of the summons which has been served and
shall contain an explanation of the right under subsection (b)(2)
to bring a proceeding to quash the summons.
(2) Sufficiency of notice
Such notice shall be sufficient if, on or before such third
day, such notice is served in the manner provided in section 7603
(relating to service of summons) upon the person entitled to
notice, or is mailed by certified or registered mail to the last
known address of such person, or, in the absence of a last known
address, is left with the person summoned. If such notice is
mailed, it shall be sufficient if mailed to the last known
address of the person entitled to notice or, in the case of
notice to the Secretary under section 6903 of the existence of a
fiduciary relationship, to the last known address of the
fiduciary of such person, even if such person or fiduciary is
then deceased, under a legal disability, or no longer in
existence.
(3) Nature of summons
Any summons to which this subsection applies (and any summons
in aid of collection described in subsection (c)(2)(D)) shall
identify the taxpayer to whom the summons relates or the other
person to whom the records pertain and shall provide such other
information as will enable the person summoned to locate the
records required under the summons.
(b) Right to intervene; right to proceeding to quash
(1) Intervention
Notwithstanding any other law or rule of law, any person who is
entitled to notice of a summons under subsection (a) shall have
the right to intervene in any proceeding with respect to the
enforcement of such summons under section 7604.
(2) Proceeding to quash
(A) In general
Notwithstanding any other law or rule of law, any person who
is entitled to notice of a summons under subsection (a) shall
have the right to begin a proceeding to quash such summons not
later than the 20th day after the day such notice is given in
the manner provided in subsection (a)(2). In any such
proceeding, the Secretary may seek to compel compliance with
the summons.
(B) Requirement of notice to person summoned and to Secretary
If any person begins a proceeding under subparagraph (A) with
respect to any summons, not later than the close of the 20-day
period referred to in subparagraph (A) such person shall mail
by registered or certified mail a copy of the petition to the
person summoned and to such office as the Secretary may direct
in the notice referred to in subsection (a)(1).
(C) Intervention; etc.
Notwithstanding any other law or rule of law, the person
summoned shall have the right to intervene in any proceeding
under subparagraph (A). Such person shall be bound by the
decision in such proceeding (whether or not the person
intervenes in such proceeding).
(c) Summons to which section applies
(1) In general
Except as provided in paragraph (2), this section shall apply
to any summons issued under paragraph (2) of section 7602(a) or
under section 6420(e)(2), 6421(g)(2), 6427(j)(2), or 7612.
(2) Exceptions
This section shall not apply to any summons -
(A) served on the person with respect to whose liability the
summons is issued, or any officer or employee of such person;
(B) issued to determine whether or not records of the
business transactions or affairs of an identified person have
been made or kept;
(C) issued solely to determine the identity of any person
having a numbered account (or similar arrangement) with a bank
or other institution described in section 7603(b)(2)(A);
(D) issued in aid of the collection of -
(i) an assessment made or judgment rendered against the
person with respect to whose liability the summons is issued;
or
(ii) the liability at law or in equity of any transferee or
fiduciary of any person referred to in clause (i);
(E)(i) issued by a criminal investigator of the Internal
Revenue Service in connection with the investigation of an
offense connected with the administration or enforcement of the
internal revenue laws; and
(ii) served on any person who is not a third-party
recordkeeper (as defined in section 7603(b)); or
(F) described in subsection (f) or (g).
(3) Records
For purposes of this section, the term "records" includes
books, papers, and other data.
(d) Restriction on examination of records
No examination of any records required to be produced under a
summons as to which notice is required under subsection (a) may be
made -
(1) before the close of the 23rd day after the day notice with
respect to the summons is given in the manner provided in
subsection (a)(2), or
(2) where a proceeding under subsection (b)(2)(A) was begun
within the 20-day period referred to in such subsection and the
requirements of subsection (b)(2)(B) have been met, except in
accordance with an order of the court having jurisdiction of such
proceeding or with the consent of the person beginning the
proceeding to quash.
(e) Suspension of statute of limitations
(1) Subsection (b) action
If any person takes any action as provided in subsection (b)
and such person is the person with respect to whose liability the
summons is issued (or is the agent, nominee, or other person
acting under the direction or control of such person), then the
running of any period of limitations under section 6501 (relating
to the assessment and collection of tax) or under section 6531
(relating to criminal prosecutions) with respect to such person
shall be suspended for the period during which a proceeding, and
appeals therein, with respect to the enforcement of such summons
is pending.
(2) Suspension after 6 months of service of summons
In the absence of the resolution of the summoned party's
response to the summons, the running of any period of limitations
under section 6501 or under section 6531 with respect to any
person with respect to whose liability the summons is issued
(other than a person taking action as provided in subsection (b))
shall be suspended for the period -
(A) beginning on the date which is 6 months after the service
of such summons, and
(B) ending with the final resolution of such response.
(f) Additional requirement in the case of a John Doe summons
Any summons described in subsection (c)(1) which does not
identify the person with respect to whose liability the summons is
issued may be served only after a court proceeding in which the
Secretary establishes that -
(1) the summons relates to the investigation of a particular
person or ascertainable group or class of persons,
(2) there is a reasonable basis for believing that such person
or group or class of persons may fail or may have failed to
comply with any provision of any internal revenue law, and
(3) the information sought to be obtained from the examination
of the records or testimony (and the identity of the person or
persons with respect to whose liability the summons is issued) is
not readily available from other sources.
(g) Special exception for certain summonses
A summons is described in this subsection if, upon petition by
the Secretary, the court determines, on the basis of the facts and
circumstances alleged, that there is reasonable cause to believe
the giving of notice may lead to attempts to conceal, destroy, or
alter records relevant to the examination, to prevent the
communication of information from other persons through
intimidation, bribery, or collusion, or to flee to avoid
prosecution, testifying, or production of records.
(h) Jurisdiction of district court; etc.
(1) Jurisdiction
The United States district court for the district within which
the person to be summoned resides or is found shall have
jurisdiction to hear and determine any proceeding brought under
subsection (b)(2), (f), or (g). An order denying the petition
shall be deemed a final order which may be appealed.
(2) Special rule for proceedings under subsections (f) and (g)
The determinations required to be made under subsections (f)
and (g) shall be made ex parte and shall be made solely on the
petition and supporting affidavits.
(i) Duty of summoned party
(1) Recordkeeper must assemble records and be prepared to produce
records
On receipt of a summons to which this section applies for the
production of records, the summoned party shall proceed to
assemble the records requested, or such portion thereof as the
Secretary may prescribe, and shall be prepared to produce the
records pursuant to the summons on the day on which the records
are to be examined.
(2) Secretary may give summoned party certificate
The Secretary may issue a certificate to the summoned party
that the period prescribed for beginning a proceeding to quash a
summons has expired and that no such proceeding began within such
period, or that the taxpayer consents to the examination.
(3) Protection for summoned party who discloses
Any summoned party, or agent or employee thereof, making a
disclosure of records or testimony pursuant to this section in
good faith reliance on the certificate of the Secretary or an
order of a court requiring production of records or the giving of
such testimony shall not be liable to any customer or other
person for such disclosure.
(4) Notice of suspension of statute of limitations in the case of
a John Doe summons
In the case of a summons described in subsection (f) with
respect to which any period of limitations has been suspended
under subsection (e)(2), the summoned party shall provide notice
of such suspension to any person described in subsection (f).
(j) Use of summons not required
Nothing in this section shall be construed to limit the
Secretary's ability to obtain information, other than by summons,
through formal or informal procedures authorized by sections 7601
and 7602.
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