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The pertinent legislative history states that the purpose of
section 7602(c) is to require “the IRS to notify the taxpayer
before contacting third parties regarding examination or
collection activities (including summonses) with respect to the
taxpayer.” S. Rept. 105-174, at 77 (1998), 1998-3 C.B. 537, 613
(emphasis added). Accordingly, we conclude that Congress did not
intend section 7602(c) to apply to third-party contacts made by
the IRS in the course of trial preparation activities, where
those contacts are not with respect to examination or collection
activities.5
This interpretation is consistent with the general statutory
scheme, which distinguishes between the litigation of tax
liabilities, see chapter 76 (captioned “Judicial Proceedings”),
5 We are mindful that under sec. 6212(c), the Internal
Revenue Service (IRS), may, in certain circumstances, determine
an additional deficiency after the taxpayer files a timely
petition with the Tax Court, and that in the course of making
such further determination, the IRS is not barred from exercising
its examination authority under sec. 7602(a). See United States
v. Gimbel, 782 F.2d 89, 93 (7th Cir. 1986) (pending Tax Court
proceedings did not bar IRS from invoking summons authority,
rather than using Tax Court discovery procedures, in seeking the
taxpayers’ financial records, where the taxpayers’ liability was
still subject to redetermination pursuant to sec. 6212(c));
Bolich v. Rubel, 67 F.2d 894, 895 (2d Cir. 1933 )(“Since the
Commissioner may apply to the Board [of Tax Appeals] to increase
the assessment [in the notice of deficiency], he may need to
prepare his case in advance by a further examination, which is
quite another matter from producing evidence in support of it.”).
The instant case does not present, and we do not reach, the issue
of the extent to which the restrictions of sec. 7602(c) might
apply with respect to examinations conducted by the IRS to
determine an additional deficiency pursuant to sec. 6212(c)
during the pendency of a Tax Court proceeding.
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