NC Gen Stat 105-258 Interpretation
N.C. Gen. Stat. 105-258 is subject to the rules of civil procedure is supported by analogy to federal law. In State v. Davis, 96 N.C. App. 545, 386 S.E.2d 743 (1989), the Court noted that N.C. Gen. Stat. 105-258 is "modeled after 26 U.S.C. 7602, which enables the Internal Revenue Service to issue an administrative summons in aid of either civil or criminal tax investigations." Id., 96 N.C. App. at 551, 386 S.E.2d at 746.
Federal statute 26 U.S.C. 7604 governs enforcement of a summons issued under 26 U.S.C. 7602.
In United States v. Powell, 379 U.S. 48, 58, n. 18, 85 S. Ct. 248, 13 L. Ed. 2d 112 (1964), the United States Supreme Court noted that because 26 U.S.C. 7604(a) "contains no provision specifying the procedure to be followed in invoking the court's jurisdiction, the Federal Rules of Civil Procedure apply."
Federal courts rely on the Powell test to apply the Federal Rules of Civil Procedure to the issuance of a summons under 26 U.S.C. 7602 and enforcement under 26 U.S.C. 7604, but where the statute sets forth a specific procedure, the Federal Rules of Civil Procedure do not apply. See United States v. Salter, 432 F.2d 697 (1st Cir. 1970) (applying the Federal Rules of Civil Procedure to attorney's request for discovery order filed in response to enforcement proceeding against the attorney);
See also United States v. Dick, 694 F.2d 1117 (8th Cir. 1982) (concluding that although the Federal Rules of Civil Procedure require filing a complaint in order to invoke jurisdiction, because federal statute authorizes federal courts to enforce a summons, any process defect is not jurisdictional).