by Brian Mahany
The IRS Chief Counsel issued an opinion last week saying revenue agents can’t summons (subpoena) emails from a taxpayer’s Internet service provider. The opinions says that attempts to read private taxpayer emails are overreaching and violate federal law.
In today’s modern society, emails are often a common used method of communication. Although we may delete our emails, our Internet provider often has copies. In the case before the chief counsel’s office, a revenue agent served a summons to get 2 years worth of emails. The revenue agent wisely thought the emails might shed some light on where this particular taxpayer had hidden assets or his sources of income.
The Internet provider refused to honor the subpoena leaving the agent to seek permission to take the provider to court. The chief counsel refused.
The federal Stored Communications Act says government officials can obtain emails with a court ordered search warrant in criminal cases. There is no provision requiring providers to turn over records in collection cases.
The case is not a total victory, however. Theoretically, an IRS agent can still seek “non-content” data such as who you correspond with and how you pay your Internet bill. It also does not stop special agents from issuing a search warrant to obtain emails in criminal cases.
The opinion also doesn’t prevent Internet service providers from voluntarily turning over emails when asked by an agent. For many people and businesses, a summons for records from an IRS agent can be pretty intimidating.
While the internal ruling from the IRS makes tax collection a little bit more difficult, resourceful agents still have many, many tools. If anything, it represents more of a victory for privacy rights.
For lawyers interested in the finer details, the opinion (CCA 201141017) contains a lengthy discussion of federal statutes and case law.
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