IRS Can Summons “Non-Content” Information From Emails

A chief counsel advice (CCA 201141017) issued last year placed restrictions on the ability of a revenue officer to issue an administrative summons to an internet service provider (ISP) for the content of a business taxpayer’s “alter ego’s” emails involving a period of more than two years. That is, the CCA placed restrictions on the revenue officer’s ability to review the actual messages sent and received by the taxpayer. The collections case allegedly involved a shell entity that improperly received large tax refunds.

Upon receipt of the administrative summons, the ISP sent a letter to the IRS stating that it would not comply with the summons based on the (federal) Stored Communications Act, Title II of P.L. 99-508, and Warshak, 631 F.3d 266 (6th Cir. 2010). Since this collections case involved a civil matter (as opposed to being a criminal case), the CCA was drafted to show deference to any privacy concerns or rights that the taxpayer might be entitled to. The CCA advised the revenue officer to issue a modified summons requesting the “non-content” information of the alter-ego’s emails, such as the email addresses with which the alter-ego was communicating.

The critical take-away for tax professionals from the CCA is that while the IRS may continue to move cautiously in its attempts to obtain the content of a taxpayer’s emails in civil tax proceedings, the IRS will likely continue to take the position that it has the right to full access to the email addresses of persons sending emails to and receiving emails from taxpayers during such civil matters, especially when the tax agency has issued an administrative summons.

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