Recording an IRS Interview: Your Right Under IRC 7521 and the 10-Day Rule

Memory is a poor witness. Two people can leave the same meeting with different versions of what was said. When the meeting is an IRS interview, the version that ends up in the file matters. That is why the Code gives you the right to record.

The statute: IRC 7521(a)

Section 7521(a)(1) says any IRS officer or employee, in connection with any in-person interview with a taxpayer relating to the determination or collection of any tax, shall, upon advance request of the taxpayer, allow the taxpayer to make an audio recording of the interview at the taxpayer's own expense and with the taxpayer's own equipment.

Section 7521(a)(2) works the other direction. An IRS officer or employee may record the interview if the employee informs the taxpayer of the recording before the interview and, on the taxpayer's request, provides a transcript or copy of the recording, but only if the taxpayer reimburses the cost of transcription and reproduction.

Note the key phrases: in-person, advance request, audio, and your own equipment.

The IRS's procedure: IRM 4.10.3.4.7

The Internal Revenue Manual fills in the details for examinations at IRM 4.10.3.4.7, Requests to Audio Record Interviews. The rules that matter most:

Ten calendar days. Under IRM 4.10.3.4.7.1(2), the taxpayer's request to record must be received by the IRS no later than 10 calendar days before the interview to be recorded. Not mailed 10 days before. Received.

Your equipment. The taxpayer or authorized representative supplies the recording equipment.

The IRS may record too. The IRS may produce its own recording of the proceedings using its own equipment.

Location. The recording takes place in a suitable location, ordinarily an IRS office where equipment is available.

Consent of other participants. All participants other than IRS personnel must consent to the recording.

Management approval. The employee conducting the interview must secure management approval before agreeing to the request.

IRS-initiated recordings. Under IRM 4.10.3.4.7.2, the IRS can start a recording if it notifies the taxpayer 10 calendar days in advance of the interview using Letter 2156, Recording Interviews, with the approval of the Field Territory Manager.

What you cannot record

The manual draws two firm lines.

No telephone recordings. Under IRM 4.10.3.4.7.1(5), the taxpayer or representative does not have the right to record a telephone interview, with or without the IRS's knowledge. The statute speaks of in-person interviews, and the manual reads it that way.

No video. Under IRM 4.10.3.4.7.1(6), the taxpayer does not have the right to videotape or film an interview, with or without the IRS's knowledge. A caution in the manual says cameras, videotaping equipment and electronic image recording devices are never permitted.

If your interview is by phone, your record is your notes and your follow-up letter confirming what was said. See how to call the IRS for a call-log approach.

How to make the request

Put it in writing and send it early. A simple letter works:

• your name, taxpayer identification number, tax years and the case or letter reference,
• the date, time and place of the scheduled interview,
• a statement that you request to make an audio recording of the interview under IRC 7521(a)(1), using your own equipment,
• the names of anyone who will attend with you.

Send it so it arrives well more than 10 calendar days before the interview, and keep proof of delivery. Proof of mailing to the IRS covers your options. A fax with a confirmation sheet to the examiner's number is often the cleanest.

Should you record?

Not always. Recording is a tool, and every tool has a cost.

Reasons to record:

• The issues are significant and the facts are disputed.
• You expect the interview to be long or technical.
• You have had a prior misunderstanding with this employee.
• You want an exact record of what you were asked and what you answered.

Reasons to think twice:

• A recording captures your mistakes as precisely as the IRS's. If you misspeak, it is preserved.
• Recording can change the tone of a meeting. Some interviews go better as conversations.
• If the IRS records too, its copy is evidence as well.

The real question is often not whether to record, but whether you should be in the interview at all.

The better alternative: send a representative

Section 7521(c) lets an authorized representative holding a written power of attorney attend an interview for you, and says an IRS employee may not require you to accompany your representative unless you have been served with an administrative summons. And under section 7521(b)(2), if you are in an interview and clearly state that you want to consult with an attorney, CPA, enrolled agent or other authorized representative, the employee must suspend the interview, except in an interview initiated by an administrative summons.

A representative who knows the procedure, answers only what is asked, and says "we will get back to you" when appropriate often does more to protect the record than a recorder does. See the right to retain representation.

Collection interviews, too

The statute is not limited to audits. Section 7521(a)(1) covers any in-person interview relating to the determination or collection of any tax. The manual provisions quoted above come from the examination part of the IRM, so a revenue officer may describe the procedure differently. The practical approach is the same: make your request to record in writing, well more than 10 calendar days ahead, to the employee who scheduled the meeting, and ask the employee to confirm in writing that the recording is approved. If you have a representative under a Form 2848, the representative can make the request and handle the logistics.

During a recorded interview

A recording changes how you should speak. A few habits help.

• Start with the basics on the record. Date, time, place, and everyone present.
• Listen to the whole question. Pause before answering. Silence is not recorded against you.
• Answer only what was asked. Volunteering is the most common way taxpayers hurt themselves in interviews, recorded or not.
• Do not guess. "I do not know" and "I will check my records and get back to you" are complete answers.
• Ask for clarification when a question is vague. The recording will show you tried to understand.
• Stop if you need help. Under IRC 7521(b)(2), clearly stating that you want to consult a representative suspends most interviews, and the recording will show that you said it.

After the interview

Make a copy of the recording the same day and store it with your case file. Listen to it within a few days while the meeting is fresh, and write down anything you promised to provide and the date you promised it. Then send what you promised, on time, with proof of delivery. If the IRS made a recording too, you can ask for a copy or transcript under IRC 7521(a)(2), paying the cost of reproduction.

The criminal exception

Section 7521(d) says the section does not apply to criminal investigations or investigations relating to the integrity of any IRS officer or employee. If you have any reason to think an interview involves a criminal matter, do not attend it, record it or reschedule it on your own. Talk to a tax attorney first.

Your own notes still matter

A recording is not a substitute for notes. Bring a written list of the topics you expect, and jot down every document the employee asks for and every date mentioned. Recordings are hard to search; a list of follow-up items is not. Within a day of the interview, send the employee a short letter confirming what you agreed to provide and when. That letter, plus the recording, is a complete record.

A short checklist

• Is the interview in person? If not, you cannot record it under these rules.
• Will your written request be received at least 10 calendar days before the interview?
• Do you have reliable audio equipment, with backup batteries and storage?
• Has everyone attending with you consented?
• Have you asked yourself whether a representative should attend instead?

The right to record is a right to an accurate record. Use it when accuracy is worth the formality, and ask early enough that the IRS has to say yes.