IRS’s Crypto John Doe Summons Expanded While Harper Fights Back | Cadwalader, Wickersham & Taft LLP

Since at the very least 2016 the IRS has been ferreting out taxpayers who did not report their taxable positive aspects from cryptocurrency transactions by issuing John Doe summonses to crypto exchanges and sellers. (See prior articles here and here). A John Doe summons allows the IRS to acquire info, comparable to an inventory of unrelated prospects from a enterprise or service supplier that isn’t itself a goal of the investigation. John Doe summonses are sometimes used when the IRS has an affordable foundation to imagine the focused prospects did not adjust to a number of provisions of the tax legislation, however the IRS can’t decide the taxpayer’s identification. Thus, a John Doe summons serves as an information-gathering software for the IRS.  In August the IRS issued a John Doe summons looking for buyer info from SFOX, a cryptocurrency prime vendor and buying and selling platform with greater than 175,000 registered customers. The summons explicitly said that SFOX itself was not alleged of any wrongdoing (see here).   

The IRS additionally sought to situation a associated John Doe summons to a banking establishment (M.Y. Safra Bank) that had partnered with SFOX to supply SFOX’s customers entry to money deposit financial institution accounts on the financial institution, and thereby facilitate the crypto buying and selling exercise of such SFOX prospects. On September 21, 2022 the U.S. District Court for the Southern District of New York permitted this John Doe summons to M.Y. Safra Bank. Interestingly, by issuing these summonses to each the crypto sellers and banks concerned within the focused prospects’ crypto, the IRS has successfully elevated the investigatory energy of a single summons standing alone and sure gained a extra complete understanding of any recognized taxpayer’s crypto exercise. It is unclear if such concurrent summonses will now change into the norm for the IRS each time a financial institution has shut relationships with explicit crypto exchanges and sellers. 

At least one taxpayer, James Harper, is difficult the validity of utilizing John Doe summonses for crypto. The IRS’s use of John Doe summonses in these concurrent conditions may additionally be topic to future problem.

In 2020 James Harper, who was recognized to the IRS in response to a John Doe summons served on the cryptocurrency trade platform Coinbase Inc. (as beforehand reported here), challenged the validity of the Coinbase summons for failing to fulfill the statutory issuance necessities and on grounds that it violated Mr. Harper’s Fourth and Fifth Amendment rights. (Harper v. Rettig, No. 20-cv-771-JD (D.N.H 2022)). Without addressing the deserves, the IRS moved to dismiss the case as prohibited by the Anti-Injunction Act (the “AIA”) (which bars fits whose function is restraining the “assortment or evaluation” of tax), and the district courtroom agreed. However, the First Circuit Court of Appeals just lately reversed that ruling and allowed the case to proceed to a willpower on the deserves (Harper v. Rettig, No. 21-1316 (1st Cir. 2022)). The First Circuit narrowly learn the AIA to solely prohibit actions straight involving “assortment or evaluation.” Since a John Doe summons solely implicates the IRS’s information-gathering efforts, the courtroom discovered that such summonses fall exterior the attain of the AIA. While the taxpayer’s Constitutional and procedural claims in Harper could not in the end succeed (comparable claims in different contexts have been rejected), the taxpayer has at the very least gained his proper to claims adjudicated on the deserves, and if Mr. Harper does in the end succeed, the implications for the IRS’s use of John Doe summonses might be wide-ranging.  

The Harper case signifies that at the very least as a preliminary matter, future challenges to the validity of the John Doe summonses issued concurrently to crypto sellers and partnering banking establishments could also be adjudicated, and taxpayers in addition to the crypto trade could have one other alternative to problem the John Doe summons.