Use a summons after noncompliance with a section 6333 demand

Plain-English summary

Chief Counsel compared an IRC § 6333 demand for books and records with the IRS summons process. Unlike the summons provisions, § 6333 does not expressly provide a judicial enforcement mechanism. Although IRC § 7402(a) might be read to permit enforcement, Counsel advised issuing a summons to a recipient who failed to comply with the § 6333 demand. That approach matched the Internal Revenue Manual and would obtain compliance before litigating any separate § 6333 issue.

Ruling snapshot

• Question: Should the IRS seek judicial enforcement when a recipient does not comply with an IRC § 6333 demand for records?
• Outcome: Advice given to issue a summons instead
• Key authorities: IRC §§ 6333 and 7402(a); IRM 5.11.4.11

Full text (IRS public release)

ID: CCA_2014103008553546 Third Party Communication: None

UILC: 6333.00-00 Date of Communication: Not Applicable

Number: 201447029
Release Date: 11/21/2014
From:
Sent: Thursday, October 30, 2014 8:55:35 AM To: Cc: Bcc: Subject: Section 6333 Question

Hi ------------,

The Service’s authority to demand the exhibition of books or records under section 6333 of the Code is similar to, but distinct from, its authority to examine books and witnesses under the Code’s summons procedures. One notable difference between the two is that section 6333 does not expressly provide for judicial enforcement of a demand for books or records while the summons procedures do. You passed along to us the question of whether the Service should seek judicial enforcement of a section 6333 demand if the recipient treats the demand like a summons.

Although section 7402(a) may be read to allow judicial enforcement of a section 6333 demand, the Service should issue a summons to a non- complying recipient of such a demand rather than seek judicial enforcement of the demand. The Internal Revenue Manual already encourages this approach. Paragraph 2 of IRM 5.11.4.11 says that if a bank does not comply with a section 6333 demand the revenue officer should “consider following up the levy with the summons.” That approach should be followed since a summons would have to be complied with before a section 6333 case could even begin, let alone be decided.

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