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38.1.2.3
(08-11-2004)
Procedures Regarding Administrative Immunity
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An agency proceeding, as defined in 18 U.S.C. § 6001, is a proceeding before an agency with respect to which it is authorized
to issue subpoenas and to take testimony or receive other information from witness under oath.
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For our purposes, the issuance of a summons starts our agency proceeding.
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With the approval of the Attorney General or his/her delegate, the Secretary of the Treasury is authorized to issue orders
compelling testimony in agency proceedings pursuant to 18 U.S.C. §§ 6002 and 6004. By Treasury Department Order No. 150-88,
dated November 29, 1977, the Secretary of the Treasury delegated this authority to the Commissioner of Internal Revenue who
in turn delegated the authority to the Deputy Commissioner and the Chief, Criminal Investigation (See Delegation Order No. 169, as revised). Under this statute, only the Attorney General (or delegate) is authorized to issue
compulsion orders.
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A request should consist of a Form 6186, Request for Authorization to Issue a Compulsion Order (Witness Identification Sheet),
http://publish.no.irs.gov/getpdf.cgi?catnum=43159, and a memorandum containing the following:
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A brief summary of the background of the investigation, the relevant criminal violations, and years under investigation, including
attempts to obtain evidence from other sources that the witness is expected to provide and the reasons that this information
cannot be obtained from those other sources
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A statement as to whether the witness is related, either by blood or marriage, to the subject of the investigation
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A summary of the witness’s role
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A description of the circumstances surrounding the witness’s invocation of the Fifth Amendment privilege and in what capacity
he/she claimed the privilege
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A summary of the witness’s expected testimony
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Any indication as to whether the witness can exculpate the subject
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A summary of known criminal activity; and the name and address of the witness’s attorney
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The basis for the special agent’s conclusion that the witness will cooperate and testify truthfully if compelled to
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A statement as to whether assurances or agreements have been made to the witness by any Government representative that may
have an effect on this matter
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A list of any electronic surveillance involved in the investigation with a summary attached
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Should the Chief, Criminal Investigation agree that a request for authorization to compel testimony is appropriate, the original
and two copies of the request will be forwarded to the Associate Chief Counsel (CT), for review of the propriety and legal
sufficiency of the request and for preparation of a compulsion order to accompany the request.
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The Associate Chief Counsel (CT) will review and evaluate the propriety and legal sufficiency of the request.
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If the request is determined to be proper and legally sufficient, the Associate Chief Counsel (CT) shall prepare a proposed
compulsion order for each witness and transmit them, along with an original and one copy of the request, to the Chief, Criminal
Investigation. See Exhibit 38.3.1-2, Compulsion Order, http://publish.no.irs.gov/getpdf.cgi?catnum=39139.
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The original request with all supporting exhibits and copies of all proposed compulsion orders will then be transmitted to
the Assistant Attorney General, Tax Division, Department of Justice, Attention: Chief, [REGION] Criminal Enforcement Section.
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If the request is determined not to be proper and/or not legally sufficient, the Associate Chief Counsel (Criminal Tax) will
advise the Chief, Criminal Investigation.
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