Unless certain exceptions apply, the IRS must give notice to the taxpayer and other persons to whom the records relate (“noticee”) when it issues a summons to a third party. 26 U.S.C. § 7609. See 26 U.S.C. § 7609(c)(2) (setting out exceptions, including summonses “issued in aid of the collection of” the tax liability). The noticee then may petition to quash a third party's compliance with the summons by commencing a proceeding in the appropriate district court. The petition must be filed within 20 days of the date on which notice is given, by mailing a copy of the petition to the third party and to the IRS office designated in the notice. The procedural rules pertaining to a petition to quash are jurisdictional. When a petitioner fails to follow these provisions meticulously, the United States Attorney’s Office should file a motion to dismiss. See Summons Enforcement Manual, https://www.justice.gov/tax/foia-library.

A proceeding to quash is a civil action that is subject to the normal filing fee and to the provisions of Federal Rule of Civil Procedure 4 relating to service of a summons and complaint. Pursuant to Federal Rule of Civil Procedure 12(a)(3), the United States has 60 days to respond to the initial pleading. Since the filing of a petition to quash under 26 U.S.C. § 7609 stays compliance with the summons, the United States Attorney’s Office best serves the Government’s interest by filing a response expeditiously.

After receiving a petition to quash, the United States Attorney’s Office should send a copy to the IRS counsel, who will determine whether the Government should seek to enforce the summons in federal court. If it is determined that the summons is defective, IRS counsel may direct the IRS to withdraw the summons and, in turn, request that the United States Attorney’s Office ask the petitioner to withdraw the petition or ask the court to dismiss it as moot. If the petition appears to raise sensitive or novel issues, the United States Attorney’s Office should also send a copy to the Chief of the appropriate Civil Trial Section. See JM 6-5.210.

[updated February 2018] [cited in JM 9-105.750]