Your Rights in an IRS Criminal Interview

A civil audit and a criminal interview can look alike from across the table. Same agency. Same forms. Sometimes even the same conference room.

The rules are not the same. Statutory protections built for civil audits stop at the door of a criminal investigation, and the constitutional protections that remain only help you if you understand them and use them.

This is general information about those rights, drawn from the Internal Revenue Code, the Internal Revenue Manual, and the Justice Manual. If you are facing an interview, have a lawyer apply it to your facts first.

The civil interview statute does not apply

Most people who have been through an audit have heard of IRC 7521. In civil examinations it lets you make an audio recording of an in-person interview with advance notice, requires an explanation of the audit or collection process, lets a qualified representative appear for you, and requires the employee to suspend the interview if you clearly say you want to consult a representative, other than in an interview initiated by summons.

Then comes subsection (d): "This section shall not apply to criminal investigations or investigations relating to the integrity of any officer or employee of the Internal Revenue Service."

That one sentence is why the criminal interview is different. Your protections now come from the Constitution and from the IRS's own procedures for criminal investigators, found in IRM 9.4.5.

The Fifth Amendment

The Fifth Amendment provides, in part, that no person "shall be compelled in any criminal case to be a witness against himself." IRM 9.4.5 quotes it directly and instructs special agents on how to respect it.

In practical terms:

• You cannot be compelled to answer questions that might tend to incriminate you.
• You cannot be compelled to produce personal information that might tend to incriminate you.
• The right is personal. The manual tells agents that a custodian of corporate records must produce those records, because Fifth Amendment rights do not apply to a corporation and its records.

The manual also warns agents, and you should hear the warning too, that the privilege "must be specifically claimed, or it will be considered to have been waived." It adds that spontaneous or volunteered statements are not barred by the Fifth Amendment. A right you do not invoke does not protect you.

The good news is that no magic words are required. The CI manual itself acknowledges that a claim of privilege does not require any special combination of words. "I am not going to answer questions without my lawyer" is clear enough.

The non-custodial rights statement

Most CI interviews are not arrests. They happen at your home or office, and you are free to end them. In that setting, IRM 9.4.5 directs special agents to advise the subject of an investigation of constitutional rights. The manual's language, in substance:

• In connection with the investigation, the agent would like to ask you questions.
• Under the Fifth Amendment, the agent cannot compel you to answer any questions or submit any information if it might tend to incriminate you.
• Anything you say and any documents you submit may be used against you in any criminal proceeding.
• You may, if you wish, seek the assistance of an attorney before responding.

The manual directs agents to give the same advice when interviewing a corporate officer or employee who appears implicated in alleged wrongdoing by a corporation under investigation, and to advise a witness if the witness's statements would incriminate the witness. It also tells agents to repeat the advice in later contacts with the subject before questioning.

If an agent reads you that statement, you are the subject of a criminal investigation. Treat it that way.

Custodial interviews and Miranda

If you are in custody, the rules tighten. IRM 9.4.5 says that before questioning a person in custody, the special agent will warn the person of the right to remain silent, that statements can and will be used as evidence, and of the right to the presence of an attorney, retained or appointed. The manual calls these Miranda rights. Agents use Document 5661 for the warning and Form 5228, a waiver form, if the person agrees to talk.

Do not sign a waiver because it seems like a formality. It is a waiver.

Recording, stenographers, and the record of the interview

In a civil audit, IRC 7521 gives you a statutory right to record. In a criminal investigation, the CI manual controls. IRM 9.4.5.5, revised April 1, 2026, says:

• A stenographer used to record an interrogation generally must be an IRS employee, though a supervisory special agent may authorize certain outside reporters.
• Agents may use recording devices after advising the witness in advance, and if the witness objects, the interrogator will refrain from recording. If the witness elects to record, the IRS will make its own recording.
• A witness or subject may hire a qualified reporter at their own expense, provided the IRS can secure a copy or make its own record, though the IRS retains the right to refuse verbatim recording by a non-IRS reporter on certain grounds.

Every interview produces a record. IRM 9.4.5.4 requires a permanent record of every interview and contact, including how the agents identified themselves and whether the subject was advised of constitutional rights. Often that record is a memorandum of interview written by the agent afterward.

Here is the part people do not expect. Under IRM 9.4.5.7.3, a witness, including the subject, can request a copy of an affidavit or a question-and-answer transcript, though release can be delayed if it would interfere with the investigation. But "a memorandum of interview does not have to be provided to the witness." The agent's summary of what you said can exist without your ever seeing it.

The role of your lawyer in the room

The CI manual describes the attorney's role plainly in IRM 9.4.5.3.4.6: the attorney has a duty to furnish legal advice to the client relating to any matter discussed, and that is the attorney's principal function at an interview.

The manual describes the accountant's role differently, in IRM 9.4.5.3.4.5: assisting the client in bookkeeping and accounting matters. That difference matters for privilege. See Kovel arrangements and accountant privilege.

Grand jury investigations are different again

If a federal grand jury is investigating, IRS procedures for non-custodial advice of rights do not apply. IRM 9.5.2.5.2 says the attorney for the government will provide instructions for advising subjects of their rights.

The Justice Manual covers that advice in JM 9-11.151. It is Department policy to advise a grand jury witness who is a target or subject of their rights, using an advice of rights form appended to the subpoena. The form says you may refuse to answer any question if a truthful answer would tend to incriminate you, that anything you say may be used against you, and that if you have retained counsel you will be given a reasonable opportunity to step outside the grand jury room to consult. Read grand jury subpoenas in tax investigations.

Truthfulness is not optional

The Fifth Amendment protects silence. It does not protect lies. Knowingly and willfully making a materially false statement in a matter within the jurisdiction of the executive branch is a separate crime under 18 U.S.C. 1001. Section 7206(1) separately punishes willfully signing a document under penalties of perjury that you do not believe is true and correct as to every material matter. See false returns under section 7206(1).

The safe, lawful path is the one the rights statement describes: decline to answer and consult a lawyer.

What a sensible approach looks like

Everything here points the same direction:

1. Recognize the rights statement for what it is.
2. Invoke your rights clearly and politely.
3. Do not sign waivers or statements without counsel.
4. Do not lie, and do not destroy anything.
5. Let a lawyer decide, with you, whether any statement or document production is in your interest.

That decision belongs in a privileged conversation. It is not one to make with two agents standing in your kitchen. For what the first visit usually looks like, read special agents at your door.

General information only, not legal advice. Reading this page does not create an attorney-client relationship. Laws and IRS procedures change; the sources cited were reviewed on the date shown above.