2017] PROTECTING THE FAMILY JEWELLS 1301
powers granted to the IRS is the administrative summons. Simply put, the
administrative summons grants the IRS the ability to issue summons to
taxpayers or third parties in order to investigate taxpayer returns or tax fraud,
often without the need to show probable cause.2 In order to protect taxpayers
from potential abuse of this power, Congress enacted section 7609 of the
Internal Revenue Code (“I.R.C.”), which requires the IRS to notify a taxpayer
after the IRS has issued an administrative summons to a third party about
taxpayer records. This notice must be given at least 23 days before the IRS
schedules the records examination.3 This allows the taxpayer to file a motion
to quash and seek judicial review if the summons is being issued for an
However, circuit courts have been highly reluctant to actually require the
IRS to comply fully with the 23-day notice requirement.4 When the IRS has
given taxpayers less than 23-days’ notice, the courts have used a variety of legal
justifications to enforce the summons and forgive the IRS’S error.5 Until
2014, no circuit court was willing to hold the IRS accountable with strict
compliance of the 23-day notice. As a result, the IRS has been given wide
latitude to circumvent one of the very few procedural safeguards put in place
by Congress to protect the American public from potential abuse of an already
This changed in 2014, when the Tenth Circuit held that the IRS had to
strictly comply with the 23-day notice, and that failure to comply would allow
the taxpayer under investigation to successfully quash the summons.7 The
Jewell decision represented a substantial departure from 23-day notice
jurisprudence, and created a circuit split, opening the door for the Supreme
Court to potentially rule on the issue.
This Note argues that the Tenth Circuit’s strict enforcement of the 23-
day notice requirement in Jewell is a better legal standard—for public policy
reasons not explored in the Jewell decision—than decisions of other circuits,
which fail to force the IRS to strictly comply with the 23-day notice
requirement. Part II explores the history of the creation of the 23-day notice,
the circuit court decisions leading up to Jewell, and explores the Tenth
2. See infra Part III.
3. See 26 U.S.C. § 7609(a)(1) (2012). Hereinafter, title 26 of the United States Code is
referred to as the Internal Revenue Code (“I.R.C.”).
4. See infra Part II.B.
5. See infra Part II.B.
6. To be fair, more often than not it does appear that failure to comply with the strict
requirements set forth in I.R.C. § 7609 are the result of mistakes. A good example of this is Azis
v. IRS. In Azis, the IRS agent failed to send the entire notice to the taxpayer and was then out of
town for training for nearly a week, resulting in the full notice being sent four days later than
required. Azis v. IRS, 522 F. App’x. 770, 776–77 (11th Cir. 2013). As this Note will argue,
however, that the failure to comply with the 23-day notice is often due to mistakes and not malice
does not change the harm to plaintiffs or the potential for abuse.
7. Jewell v. United States, 749 F.3d 1295, 1301 (10th Cir. 2014).