Your Rights in an IRS Audit Interview: Recording, Representation and Stopping

An audit interview feels like a conversation where the other side holds all the cards. It is not. Section 7521 of the Internal Revenue Code, Procedures Involving Taxpayer Interviews, gives you concrete rights in every in-person interview about the determination or collection of tax. Most taxpayers never use them because nobody told them they exist.

Right one: an explanation of the process

IRC 7521(b)(1) requires the IRS employee, before or at an initial in-person interview relating to the determination of tax, to explain the audit process and your rights under it. The IRM builds that into the interview checklist: the examiner must verify you received Publication 1 and Notice 609, briefly describe the rights in them, and explain the resolution options if you disagree, including a managerial conference, Fast Track Settlement, a formal appeal and the right to petition the Tax Court (IRM 4.10.3.4.1.1).

If the examiner skips it, ask. Politely. "Before we start, can you walk me through how this process works and what my options are if we disagree?" It sets the tone, and it is your right.

Right two: recording the interview

IRC 7521(a)(1) says that on advance request, the IRS must allow you to make an audio recording of an in-person interview at your own expense and with your own equipment.

The IRM fills in the procedure (IRM 4.10.3.4.7.1, following Notice 89-51):

• The request must be addressed to the employee conducting the interview and received no later than 10 calendar days before the interview. If you miss that, the IRS may proceed as scheduled and allow the recording, or set a new date.
• You supply the equipment. The IRS may make its own recording at the same time.
• The recording ordinarily takes place in an IRS office where equipment is available.
• All participants other than IRS personnel must consent, and everyone identifies themselves and their role.

Limits matter here. The IRM says taxpayers do not have the right to record a telephone interview, and cameras, video and image recording devices are never permitted. Audio, in person, with notice. That is the right.

The IRS can record too. Under IRC 7521(a)(2), it must tell you before the interview, and if you ask and pay the cost, it must give you a transcript or copy. The IRM says IRS-initiated recordings require 10 calendar days' advance notice using Letter 2156 and management approval (IRM 4.10.3.4.7.2).

Should you record? Sometimes. A recording keeps everyone precise and protects against later disputes about what was said. It can also make a conversation stiffer than it needs to be. Decide with your representative based on the case.

Right three: stopping to consult

This is the most important one. IRC 7521(b)(2) says that if you clearly state, at any time during an interview, that you wish to consult with an attorney, certified public accountant, enrolled agent, enrolled actuary or any other person permitted to represent taxpayers before the IRS, the employee "shall suspend such interview regardless of whether the taxpayer may have answered one or more questions."

Three practical points:

• Be clear. The statute uses the word "clearly." Say it plainly: "I want to stop and consult with a representative before answering more questions."
• It is not too late after you started answering. The statute says so expressly.
• You get time. The IRM says the examiner will suspend the interview and allow a minimum of 10 business days to consult and secure representation, with extensions case by case (IRM 4.10.3.4.5.2).

Know the limits. The IRM says examination work that does not involve you, like reviewing records already provided, continues during the suspension, and some actions, like a 30-day letter or third-party contacts, may not be delayed when the statute is short. It also warns that repeated delays or suspensions used to abuse the process can lead to an administrative summons.

Right four: sending a representative instead

Under IRC 7521(c), an attorney, CPA, enrolled agent, enrolled actuary or other person permitted to practice before the IRS, who is not disbarred or suspended and who holds your written power of attorney, may represent you in an interview. And the IRS "may not require a taxpayer to accompany the representative in the absence of an administrative summons issued to the taxpayer."

That is a significant right. In many exams, the taxpayer never sits across the table from the examiner. The representative answers, gets back to the examiner on items needing your input, and keeps the conversation on the issues.

Two cautions come from the IRM. First, an examiner may interview your representative without you if the representative has first-hand knowledge of your business and records, and will test that knowledge (IRM 4.10.3.4.3.1). Second, section 7521(c) itself allows an IRS employee, with the immediate supervisor's consent, to notify you directly if they believe your representative is responsible for unreasonable delay or hindrance, and the IRM provides bypass procedures in that situation. A representative who stalls hurts you.

The power of attorney is Form 2848. Get it filed before the first appointment, covering the right tax years.

Phone calls and video meetings

Section 7521's recording right covers in-person interviews. The IRM is explicit that a taxpayer or representative does not have the right to record a telephone interview, with or without the IRS's knowledge, and that if a taxpayer starts recording a call, the examiner should ask that it stop and end the call if it does not (IRM 4.10.3.4.7).

The IRM also says initial interviews should be face to face whenever possible, and that if an interview is conducted using online meeting tools, IRS procedures must be followed (IRM 4.10.3.4.1.1). If a video meeting is proposed and you want a record of it, raise that in advance and in writing rather than pressing record on your own.

Your other rights do not depend on the format. You can ask to stop and consult a representative on a phone call just as you can in a conference room. And the examiner's notes of any call go into the file, so treat a phone conversation with the same care as a meeting.

The big exception: administrative summonses

Several of these rights change when the IRS issues an administrative summons. The right to suspend an interview to consult does not apply to an interview initiated by an administrative summons (IRC 7521(b)(2)). The IRM adds that an interview also will not be suspended if required by a court order. And the protection against being required to attend with your representative applies only "in the absence of an administrative summons" (IRC 7521(c)).

So if a summons arrives, the interview is a different event. Get advice before the appearance date. See IDR deadlines and the road to a summons.

What section 7521 does not cover

The statute does not apply to criminal investigations or to investigations relating to the integrity of IRS employees (IRC 7521(d)). Those have their own rules and their own very different stakes. This page is about civil audits.

Putting it together

1. File Form 2848 for your representative before the first appointment.
2. Decide, with your representative, whether you will attend.
3. If you want a recording, send a written request at least 10 calendar days ahead.
4. Expect the examiner to explain the process and your rights. Ask if they do not.
5. If the interview goes somewhere you did not expect, say clearly that you want to consult a representative. Then stop talking.

For what the examiner will actually ask, read the initial audit interview. For the overall process, start with office audits or field audits. Rights you know about are rights you can use. Use them.