If you've been holding your tongue (fingers?) when you send any email that's related to your tax situation, you can relax.
The Internal Revenue Service has made it official that it will not go snooping into your electronic communications without first obtaining a warrant.
Here's the full announcement, posted on the IRS website:
Policy Statement 4-120
Approved: May 3, 2013
(1) Policy Regarding Requests for the Content of Email Communications under the Electronic Communications Privacy Act and the Stored Communications Act.
(2) The IRS will follow the holding of United States v. Warshak, 631 F.3d 266 (6th Cir. 2010), and obtain a search warrant in all cases when seeking from an Internet service provider (ISP) the content of email communications stored by the ISP. Accordingly, such information will not be sought from an ISP in any civil administrative proceeding.
(3) Any existing IRS guidance that is not in accord with the foregoing policy statement will be updated.
(4) Signed: Steven T. Miller, Deputy Commissioner for Services and Enforcement
Court ruling on criminal tax warrants
In the Warshak case cited by the IRS, the U.S. Court of Appeals for the Sixth Circuit found that government agents violated the defendant's Fourth Amendment right against unreasonable search and seizure by forcing his Internet service provider, or ISP, to turn over his emails without first obtaining a search warrant. The government argued that it had probable cause to obtain the stored emails.
The appeals panel, however, said that individuals have a reasonable expectation of privacy with regard to emails stored on third-party servers and that the content of these emails is constitutionally protected.
Now the IRS has officially announced it will follow the warrant requirement not only in criminal cases such as Warshak, but also in its civil tax investigations.
The agency was prompted to clarify its limited right to look at your electronic communications after reports that it was surfing the Internet for information on possible tax cheats.
That led to questions from members of Congress about additional snooping, specifically possible peeks into taxpayers' emails.
Same treatment for civil tax investigations
Of particular concern was an IRS chief counsel advice memo from 2011, obtained by the American Civil Liberties Union, that seemed to indicate that the agency's need for electronic communications warrants was limited to cases within the jurisdiction of the appellate court's Sixth District; that's Kentucky, Michigan, Ohio and Tennessee. In cases in other parts of the country, according to the memo, IRS agents may use an administrative summons, not warrants, to request taxpayer information from the ISP.
Not so, said Treasury Secretary Jacob Lew. Testifying on April 25 before the House Appropriations Subcommittee on Financial Services and General Government, Lew said that in criminal tax matters, the IRS definitely will follow the law and obtain search warrants to search email.
The same goes for civil matters. "It is not policy to go into private email in civil or criminal matters, and going forward I will work with our team to make sure that remains the case," Lew told lawmakers.
And that policy was made official this week. So feel free to talk via email with your tax adviser or whoever about your tax issues.
But remember, if you are trying to pull a fast one on the tax collector and the IRS does investigate, it still can get those exchanges as long as it can first get a warrant to do so.
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Veteran contributing editor Kay Bell is the author of the book "The Truth About Paying Fewer Taxes" and a co-author of the e-book "Future Millionaires' Guidebook."