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Ex-Parte Petition for Leave to Serve John Doe Summons

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Ex-Parte Petition for Leave to Serve John Doe Summons Case 3:17-mc-00094 Document 1 Filed 03/28/17 Page 1 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS EL PASO DIVISION IN THE MATTER OF THE TAX and ) LIABILITIES OF:, ) Case No. 3:17-mc-00094 ) ) JOHN DOES, Dutch taxpayers, who at any ) time during the period January 1, 2009, through ) December 31, 2016, held an American Express ) payment card linked to a bank account located ) outside the Netherlands. ) ) _______________________________________) EX PARTE PETITION FOR LEAVE TO SERVE “JOHN DOE” SUMMONS The United States of America avers as follows: 1. This ex parte proceeding is commenced pursuant to sections 7402(a), 7609(f) and 7609(h) of the Internal Revenue Code (26 U.S.C.), for leave to serve an Internal Revenue Service “John Doe” summons on American Express Company. 2. American Express Company’s Subpoena Compliance Department is found at 43 Butterfield Circle, El Paso, Texas 79906-5202, within the jurisdiction of this Court. 3. The Internal Revenue Service is in receipt of a request from the Kingdom of the Netherlands for information pursuant to Article 30 of the Convention Between the Government of the United States of America and the Kingdom of the Netherlands for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion With Respect to Taxes on Income (“the Convention”). (See Declarations of Deputy Commissioner Douglas W. O’Donnell and Revenue Agent Godwin O. Ndukwe, attached to this Petition as Exhibits 1 and 2, respectively.) The Case 3:17-mc-00094 Document 1 Filed 03/28/17 Page 2 of 3 request states that the information is to be used to determine the correct income tax liabilities of certain as-yet-unidentified taxpayers under the laws of the Netherlands. 4. In furtherance of that request, the Internal Revenue Service, once service of the summons is authorized by the Court, will issue under the authority of section 7602 of the Internal Revenue Code an administrative “John Doe” summons to American Express Travel Related Services Company. A copy of the summons is attached as Exhibit A to the Declaration of Revenue Agent Ndukwe. 5. The “John Doe” summons relates to the investigation of a particular person or ascertainable group or class of persons, that is, Dutch taxpayers, who at any time during the period January 1, 2009 through December 31, 2016, held an American Express payment card linked to a bank account located outside the Netherlands. There is a reasonable basis for believing that such person or group or class of persons may fail, or may have failed, to comply with one or more provisions of the internal revenue laws of the Netherlands. The information sought to be obtained from the examination of the records or testimony (and the identity of the person with respect to whose tax liability the summons has been issued) is not readily available from other sources. 6. In support of this Petition, the United States submits the Declarations of Deputy Commissioner Douglas W. O’Donnell and Revenue Agent Godwin O. Ndukwe, the exhibits attached thereto, and a supporting memorandum. 2 Case 3:17-mc-00094 Document 1 Filed 03/28/17 Page 3 of 3 WHEREFORE, the petitioner respectfully prays: A. That this Court enter an order permitting service of the Internal Revenue Service “John Doe” summons issued to American Express Company in a form substantially similar to Exhibit A to the Declaration of Revenue Agent Godwin O. Ndukwe; and B. That this Court grant such other and further relief as the Court deems proper or justice may require. Respectfully submitted, DAVID A. HUBBERT Acting Assistant Attorney General U.S. Department of Justice, Tax Division /s/ Joshua D. Smeltzer JOSHUA D. SMELTZER CURTIS C. SMITH Trial Attorneys, Tax Division U.S. Department of Justice 717 N. Harwood Street, Suite 400 Dallas, Texas 75201 Telephone: (214) 880-9735/9734 Facsimile: (214) 880-9741 E-mail: [email protected] [email protected] Of Counsel: Richard Durbin United States Attorney Western District of Texas 3 Case 3:17-mc-00094 Document 1-1 Filed 03/28/17 Page 1 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS EL PASO DIVISION IN THE MATTER OF THE TAX ) LIABILITIES OF: ) Case No. 3:17-mc-00094 ) ) JOHN DOES, Dutch taxpayers, who at any ) time during the period January 1, 2009, through ) December 31, 2016, held an American Express ) payment card linked to a bank account located ) outside the Netherlands. ) ) _______________________________________) NOTICE OF FILING EX PARTE PETITION FOR LEAVE TO SERVE “JOHN DOE” SUMMONS The United States of America notifies the Court that it has commenced this ex parte proceeding pursuant to section 7609(f) of the Internal Revenue Code (26 U.S.C.) for leave to serve an Internal Revenue Service “John Doe” summons upon American Express Company. The Court’s determination “shall be made ex parte and shall be made solely on the petition and supporting affidavits.” 26 U.S.C. § 7609(h). Thus, the pleadings filed in this proceeding will not be served upon any person or entity, and no other filings are permitted from other persons or entities. This matter, therefore, is ripe for the Court’s consideration. The United States requests that the Court review the Petition and supporting documents and enter the proposed Order at the Court’s earliest opportunity. / / Case 3:17-mc-00094 Document 1-1 Filed 03/28/17 Page 2 of 2 DAVID A. HUBBERT Acting Assistant Attorney General U.S. Department of Justice, Tax Division /s/ Joshua D. Smeltzer JOSHUA D. SMELTZER CURTIS C. SMITH Trial Attorneys, Tax Division U.S. Department of Justice 717 N. Harwood Street, Suite 400 Dallas, Texas 75201 Telephone: (214) 880-9735/9734 Facsimile: (214) 880-9741 E-mail: [email protected] [email protected] Of Counsel: Richard Durbin United States Attorney Western District of Texas 2 Case 3:17-mc-00094 Document 1-2 Filed 03/28/17 Page 1 of 14 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS EL PASO DIVISION IN THE MATTER OF THE TAX and ) LIABILITIES OF:, ) Case No. 3:17-mc-00094 ) ) JOHN DOES, Dutch taxpayers, who at any ) time during the period January 1, 2009, through ) December 31, 2016, held an American Express ) payment card linked to a bank account located ) outside the Netherlands. ) ) _______________________________________) MEMORANDUM IN SUPPORT OF EX PARTE PETITION FOR LEAVE TO SERVE "JOHN DOE" SUMMONS Introduction This is an ex parte proceeding brought by the United States of America, pursuant to 26 U.S.C. §7609(f) and (h) of the Internal Revenue Code, for leave to serve an Internal Revenue Service “John Doe” summons upon American Express Company. “John Doe” summonses are used to further investigations where a tax authority has reason to believe taxpayers may not be complying with the law, but does not know their identity. Courts may grant leave to serve a “John Doe” summons that does not identify the person with respect to whose liability it is issued if the United States establishes three factors: the summons relates to a particular person or group of individuals; there is a reasonable basis to believe that person or group may have not complied with the internal revenue laws; and the information sought is not readily available from some other source. See 26 U.S.C. §7609(f). This Court has jurisdiction to determine this action because American Express Company is found in this judicial district, as it has its Subpoena Compliance Department in El Paso, Texas. See 26 U.S.C. § 7609(h)(1) (providing that the Case 3:17-mc-00094 Document 1-2 Filed 03/28/17 Page 2 of 14 district court in which the person to be summoned resides or is found shall have jurisdiction to hear and determine any proceeding brought under section 7609(f)). This suit is out of the ordinary because the proposed “John Doe” summons will gather information on behalf of the Kingdom of the Netherlands.1 The United States has entered into tax treaties with other nations that provide, among other things, for gathering and exchanging information to assist each other in administering the tax laws. The tax treaty between the United States and the Netherlands is the law of the United States, and it provides that, if the Netherlands makes a proper request for information, the United States will use its internal revenue laws to collect the requested information. The Netherlands has made such a request. It is investigating whether individuals may owe tax in the Netherlands, and part of that investigation involves identifying individuals who are consistently using payment cards in the Netherlands that are linked to banks outside of the Netherlands. Netherlands taxpayers can use a foreign payment card as part of a scheme to avoid reporting income and paying Netherlands income tax. Individuals can divert income to a foreign country, deposit the proceeds in a bank there, and then use the income to make purchases in their “home” country through payment cards issued by foreign banks. The United States Internal Revenue Service has investigated this scheme with respect to U.S. taxpayers. See David R. Tillinghast, Issues of International Tax Enforcement, in THE CRISIS IN TAX ADMINISTRATION 38, 52 (Henry J. Aaron and Joel Slemrod, eds. 2004) (describing the “striking initiative” begun by the IRS in 2000 to issue summonses to American credit card 1 A similar request on behalf of the Kingdom of Norway was previously granted by this Court. See In the Matter of the Tax Liabilities of: John Doe, Norwegian taxpayer holding American Express Company payment card XXXXXXXXXXX2029, Civil Action No.
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