posted December 06, 2013 05:41 PM            

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The judicial device for enforcing the administrative summons is provided by IRC §§ 7402(b) and 7604. IRC 7604(a) provides that the jurisdiction to compel compliance with a summons is in the United States District Court for the district in which the person summoned resides or is found. Subsection (b) provides for a body attachment procedure, which "was intended only to cover persons who were summoned and wholly made default or contumaciously refused to comply" and is not to be used where there was a refusal based upon a claim of privilege. Reisman v. Caplin, 375 U.S. 440 (1964).

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This is the closest to a silver bullet as I've seen from you. I had neither read nor processed this before my last post.

My only problem with this is what your previous post from the IRS mentioned:

Constitutional and common law privileges apply only in very limited situations. If and when the summonee declines to testify or produce documents based on a privilege, the examiner should continue with the request for records and/or testimony to establish a record of noncompliance with the summons. The record may be used in a subsequent court proceeding brought to enforce the summons. See IRM
4022.41.

At the conclusion of the examination, the examiner should make a memorandum for the file noting each question to which the privilege was claimed. Later, the Service may use this memorandum in court during a summons enforcement proceeding.

Both from your IRS document: http://www.irs.gov/pub/irs-tege/eotopicg93.pdf

posted December 06, 2013 05:55 PM            

The IRS publication I reproduced is ginormous, so am posting noteworthy portions of it below:

Although expansive, the Service's summons power is not limitless. To get its
summons enforced, the Service must show the court: (1) the investigation has a
legitimate purpose; (2) the examiner only seeks information that may be relevant

After the Service has established these prerequisites to enforcement, the
taxpayer can "challenge the summons on any appropriate grounds." Powell, 379 U.S.
at 58. To quash the summons, the taxpayer must show: (1) there has already been an
examination of his books and records; (2) the tax years under investigation have been
closed by the statute of limitations; (3) enforcing the summons will violate the
taxpayer's constitutional rights or common law privileges; or (4) the summons has
been issued for an improper purpose. An "improper purpose" includes harassing the
taxpayer, pressuring the taxpayer to settle a collateral dispute, or any other purpose
reflecting negatively on the good faith of the particular investigation.

The Supreme Court noted, in United States v. LaSalle National Bank, 437 U.S. 298, 316 n.18 (1978), that the Service does not have the inherent authority to summon the private papers of citizens. It can only exercise the power that Congress has bestowed on it.

Constitutional and Common Law Privileges
Two constitutional provisions, i.e., the fourth and fifth amendments, are
frequently raised by the summonee when appearing pursuant to a summons. The
fourth amendment provides for "the right of the people to be secure in their houses,
papers, and effects, against unreasonable search and seizure ...." It protects U.S.
citizens from unreasonable governmental intrusion into their private lives. The fifth amendment provides, "[n]o person...shall be compelled in any criminal case to be a witness against himself." It bars the government from forcing a person to help in his own criminal prosecution.
The extent of protection derived from these constitutional provisions varies
with the type of summonee. For example, the fourth amendment may protect the
taxpayer from having to disclose personal records, but it may not be relied on by
anyone else connected with the case.

The Fourth Amendment
The fourth amendment governs all searches and seizures by government agents. The privilege prevents the government from conducting unreasonable searches and seizures. It protects a person's right to privacy, that is the sanctity of one's home and other privacies of life.
(1)
Taxpayer and Third-Parties
The fourth amendment privilege may apply to a summons that seeks documents in which the taxpayer has a reasonable expectation of privacy. A third-party summonee may not depend on the privilege, only the taxpayer.
The taxpayer may assert the privilege only as to his or her private papers and effects. Boyd v. United States, 116 U.S. 616 (1886). The protection of the privilege is lost for what the taxpayer has knowingly
shown to others. Katz v. United States, 389 U.S. 347, 351 (1967). The taxpayer takes
the risk, in revealing his affairs to another, that the information may be conveyed by that person to the government. United States v. Miller, 425 U.S. 435, 443 (1976). This is true even if the taxpayer revealed the information in confidence and assumed that it would be used only for a limited purpose. Id. For example, original bank slips, deposit slips, and other transactional documents are not protected by the privilege because the taxpayer voluntarily discloses these instruments to banks and bank employees.

The Fifth Amendment
The fifth amendment prevents the government from forcing an individual to make self-incriminating statements. See Fisher v. United States, 425 U.S. 391, 409 (1976). The privilege applies only when a person's statements or acts: (1) constitute
testimony, (2) are forced from him, and (3) incriminate him. All three elements must
be present for a valid claim of the privilege. The fifth amendment privilege extends not only to criminal proceedings, but to civil proceedings as well. Allen v. Illinois, 478 U.S. 364, 368 (1986). This includes Service examinations and investigations.

Testimony
The examiner cannot force the summonee to make self-incriminating oral statements. This is true regardless of whether the person testifying is the taxpayer or a third-party summonee. However, the privilege is a personal one and cannot be claimed for someone else. The examiner can compel a summonee to incriminate others. The summonee cannot make a "blanket" assertion of the privilege and, thereby, refuse to answer all questions asked. The privilege can be claimed only on a question-by-question basis.

Books and Records
(A)
The Taxpayer
The fifth amendment privilege extends to the taxpayer's personal papers. However, the taxpayer has to be the owner of the papers and also have them in his or her possession in order to assert the privilege. Ownership is required because the
privilege protects only personal papers. Possession is required because if the
documents are surrendered by a third party the taxpayer is not making the
incriminating statements. Someone else is incriminating the taxpayer.

The taxpayer, however, cannot
entirely fail to surrender summoned information. The taxpayer must assert the
privilege item-by-item. Schmidt, 816 F.2d at 1481-82.

posted December 09, 2013 05:34 PM            

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It seemed to me that you presumed that the IRS had virtually unlimited powers. Most people feel that way.

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You tend to assume a lot, especially in GU.

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Substantiating an item or deduction is one thing, but a random fishing expedition through all of my books and records to see if I "might" have done something wrong is not allowed.

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posted December 09, 2013 07:29 PM            

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Your stance seemed to show that you felt this way.

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I don't think it did.
My stance has been that the IRS can enforce the rules in order to collect proper taxes. I think you agree with me now on that point. Moreover, my point was don't mess with the IRS, and that's probably why you thought I felt they had unlimited power. They don't, but not cooperating could very likely have consequences. They're not easily dismissed. At best, they are carefully dismissed (and at worst you're going to court knowing that you tried a shenanigan [if you did indeed falsify your taxes in any way] and it's going to be a nightmare).

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By allowed, I mean that a fishing expedition is barred by the Constitution.

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