Data Stream of Binary CodeUnder Internal Revenue Code section 7609(f), the IRS may issue a “John Doe” administrative summons to discover the identities of unknown taxpayers. A “John Doe” summons can be a powerful enforcement tool because it allows the government to force third parties, such as banks and credit card companies, to provide numerous records regarding suspected tax code violations by persons whose precise identities are unknown to the IRS but who, as a group, are suspected of tax evasion. The IRS may serve a “John Doe” summons on a third party only with federal court approval.

On November 30, 2016, a federal judge in the Northern District of California granted an IRS application to serve a “John Doe” summons on Coinbase, Inc., which operates a virtual currency wallet and exchange business headquartered in San Francisco. The court found that the summons “relates to the investigation of an ascertainable group or class of persons, that there is a reasonable basis for believing that such group or class of persons has failed or may have failed to comply with any provision of any internal revenue laws, and that the information sought to be obtained from the examination of the records or testimony (and the identities of the persons with respect to whose liability the summons is issued) are not readily available from other sources.” The government has not alleged that Coinbase has violated any law.

In the memorandum and declaration supporting the petition to serve the summons, the government asserted that virtual currency represents not only a potential vehicle for tax evasion, but also a possible conduit for money laundering. The government’s memorandum in part quoted a 2014 Government Accountability Office report, which found that because of “the higher degree of anonymity” offered by virtual currencies, they “may be attractive to parties seeking to . . . move or conceal money obtained by illegal means.” The government is seeking records of Coinbase users who transferred virtual currency between December 31, 2013, and December 31, 2015, including their U.S. addresses, telephone numbers, email domains, and bank account information.

Coinbase is likely not the only virtual currency business that will receive a “John Doe” summons. In the ongoing enforcement campaign against more traditional undisclosed foreign bank accounts held by U.S. taxpayers, the U.S. Department of Justice and the IRS have used this powerful weapon against several Swiss banks, with long-term and substantial results. Having tasted success, the U.S. government presumably will use this same playbook against multiple virtual currency exchanges to root out alleged tax evasion and other crime. Federal courts generally can be expected to approve the summonses.

Nonetheless, such enforcement tools should not curb significantly the use of virtual currency, which continues to expand. Virtual currency is not merely the tool of would-be tax cheats or money launderers; it typically is used for perfectly legal activities, as the government itself has stated. The current action directed against the users of Coinbase is merely a reminder that virtual currency is not truly anonymous, and that those who use it to hide income or illicit activity should not assume impunity.

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Marjorie J. Peerce

peercem@ballardspahr.com | 646.346.8039 | view full bio

Margie is a litigator who, in her more than 30 years of practice, has handled matters across the criminal and regulatory spectrum including white collar criminal defense, regulatory matters, and complex civil litigation. Her work includes…

peercem@ballardspahr.com | 646.346.8039 | view full bio

Margie is a litigator who, in her more than 30 years of practice, has handled matters across the criminal and regulatory spectrum including white collar criminal defense, regulatory matters, and complex civil litigation. Her work includes cases arising from alleged violations of the Internal Revenue Code, the FCPA, the BSA, and a broad range of fraud investigations.

She represents numerous individuals in several AML/BSA investigations by the U.S. Department of Justice and has represented a financial institution in a matter implicating BSA issues. She has handled matters involving Suspicious Activity Reports and Currency Transaction Reports and structuring-related offenses and she has represented individuals accused of money laundering offenses. Margie has also handled a significant number of matters with the SEC, FINRA, and the CFTC.

Brad Gershel

gershelb@ballardspahr.com | 646.346.8034 | view full bio

Brad focuses his practice on representing individuals and companies in white-collar criminal and civil matters, including government inquiries and internal investigations. Brad has significant experience in a wide range of enforcement, criminal and regulatory matters, including…

gershelb@ballardspahr.com | 646.346.8034 | view full bio

Brad focuses his practice on representing individuals and companies in white-collar criminal and civil matters, including government inquiries and internal investigations. Brad has significant experience in a wide range of enforcement, criminal and regulatory matters, including those relating to fraud, foreign bribery, and public corruption. His experience spans multiple state and federal law enforcement agencies, including the DOJ, FINRA, SEC, and New York County District Attorney’s Office. Additionally, he has represented clients in criminal and regulatory investigations for alleged violations of the False Claims Act and the Foreign Corrupt Practices Act.

Peter D. Hardy

hardyp@ballardspahr.com | 215.864.8838 | view full bio

Peter is a national thought leader on money laundering, tax fraud, and other financial crime. He is the author of Criminal Tax, Money Laundering, and Bank Secrecy Act Litigation, a comprehensive legal treatise published by Bloomberg…

hardyp@ballardspahr.com | 215.864.8838 | view full bio

Peter is a national thought leader on money laundering, tax fraud, and other financial crime. He is the author of Criminal Tax, Money Laundering, and Bank Secrecy Act Litigation, a comprehensive legal treatise published by Bloomberg BNA.  Peter co-chairs the Practising Law Institute’s Anti-Money Laundering program, and serves on the Steering Committee for the Cambridge Forum on Sanctions & AML Compliance

He advises corporations and individuals from many industries against allegations of misconduct ranging from money laundering, tax fraud, mortgage fraud and lending law violations, securities fraud, and public corruption.  He also advises on compliance with the Bank Secrecy Act and Anti-Money Laundering requirements.  Peter handles complex litigation involving allegations of fraud or other misconduct.

Peter spent more than a decade as a federal prosecutor before entering private practice, serving as an Assistant U.S. Attorney in Philadelphia working on financial crime cases. He was a trial attorney for the Criminal Section of the Department of Justice’s Tax Division in Washington, D.C.