Frequently, subpoenas are served upon IRS employees in cases not involving federal taxes and in which the United States is not a party. The subpoenas purport to require these persons to appear in court to produce official IRS documents and records or to testify with respect to matters that have come to their attention in their official capacity.

Title 26 C.F.R. § 301.9000-1 et seq. (the IRS’s Touhy regulations) provides that, in such cases, unless certain strict requirements are met, the IRS employee should appear in court and respectfully decline to testify or produce records on the ground that the Treasury regulations prohibit the employee from doing so. In most cases, the IRS will issue the employee specific written instructions that the employee can furnish to the United States Attorney’s Office.

When a subpoenaed IRS employee contacts the United States Attorney’s Office, the United States Attorney’s Office should take steps to protect the employee’s and the Government’s interests. The United States Attorney’s Office should first contact the Chief of the Civil Trial Section, Eastern Region, and then contact the opposing counsel. In the Tax Division’s experience, if the United States Attorney’s Office explains the prohibition, the attorney who issued the subpoena often will agree to release the employee from complying, obviating any need to seek court assistance to secure that release. Third, if necessary, the United States Attorney’s Office should appear with the individual employee before the court issuing the subpoena. See also https://dojnet.doj.gov/usao/eousa/ole/tables/subject/touhy.htm .

[updated February 2018]