"May the Fourth Be You" - Part 1: The IRS Power of Summons

This is part one of a two-part discussion of the powers of the IRS to conduct searches and seizures in its never-ending quest to shore up our government's hemorrhaging coffers.

The Fourth Amendment -- alive and well today

Anyone who believes that our Constitution with its Bill of Rights is just an outdated remnant of a bygone era, should check into the first half of the Fourth Amendment:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,…

Our Founders recognized that a powerful, coercive government had to be restrained from coming into people's homes and businesses to unreasonably seize personal property. The Fourth Amendment is a classic example of the overall purpose of the Constitution, which is to restrict the power of government.

What the government must do

In the pursuit of its lawful business of preventing crimes and detecting those who perpetrate them, the second half of the Fourth Amendment states that the government must produce a sworn warrant to come into your home:

"…and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

So the government has the power to search your home and seize evidence, but it has to follow the rules as to the people, places and things that are the target of the search.

The IRS has powers

In this era of growing federal deficits, the IRS is under increasing pressure to shore up the negative side of the spending ledger. In an effort to accomplish its mission, the IRS has enforcement powers granted by the Internal Revenue Code. They include discovery enforcement that ranges from summons and subpoenas to search warrants.

IRS Summonses

Receiving a summons from the IRS can be an unsettling experience, but a summons is not always a part of a criminal investigation. The Internal Revenue code permits the IRS power to issue summonses:

  • in order to determine the correctness of any tax return
  • to require a taxpayer to make a substitute return where none has been filed,
  • to determine the tax liability of any person to pay income tax

The Fourth Amendment protections can apply to a summons, especially in cases where the taxpayer could reasonably expect privacy -- e.g., private papers or effects that have never been shown to someone else.

A summons, however, does not carry the force of law. For the IRS to actually enforce a summons, it must get a court order from a Federal District Court. If warranted, the Court will typically order the taxpayer to show up and demonstrate why the court should not order compliance. If the court orders compliance, the taxpayer has the right to appeal to an appropriate Circuit Court of Appeals.

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