## Facts

- Two attorneys at a Boston law firm received four cash payments (each over $10,000) from a single criminal-defense client for legal representation.
- Federal law (26 U.S.C. § 6050I) required the firm to file IRS Forms 8300 reporting the cash transactions and identifying the payor.
- The attorneys filed Forms 8300 reporting the amounts but omitted the client’s name and identifying information, citing attorney-client privilege, ethical duties, and concerns about incrimination in related criminal matters.
- The IRS sought the missing identifying information through correspondence; the attorneys asked whether the IRS was investigating the firm or the client, and the IRS did not provide a clear answer.
- The IRS issued third-party summonses to the attorneys seeking records and testimony identifying the client and describing the fee payments.
- The attorneys refused to comply and argued the IRS was effectively pursuing an investigation of an unidentified taxpayer, requiring compliance with the “John Doe summons” procedures in 26 U.S.C. § 7609(f).
- The government petitioned to enforce the summonses; the district court denied enforcement, finding the IRS’s stated focus on the firm was pretextual and that the demanded information was privileged under the circumstances.
- The government appealed.

## Issues

1. Whether the IRS’s summonses to the attorneys were, in substance, “John Doe” summonses aimed at an unidentified taxpayer, requiring judicial preapproval and statutory showings under 26 U.S.C. § 7609(f).
2. Whether, under the circumstances, attorney-client privilege or constitutional considerations barred compelling disclosure of the client’s identity and fee information sought through the summonses.

## Decision

- The First Circuit affirmed the refusal to enforce the IRS summonses.
- The court held the IRS was effectively seeking information to investigate an unnamed taxpayer and therefore was required to comply with the John Doe summons procedures of 26 U.S.C. § 7609(f).
- Because the IRS did not obtain the required judicial authorization or make the required statutory showings, the summonses were procedurally defective and unenforceable.
- The court affirmed on this narrow statutory ground and did not decide the broader privilege and constitutional questions addressed by the district court.

## Legal Principles

- When the IRS uses summons authority to obtain information concerning “a person whose identity is unknown,” 26 U.S.C. § 7609(f) requires advance judicial approval and specified showings, including that the summons relates to an ascertainable group, there is a reasonable basis to suspect noncompliance, and the information is not readily available from other sources.
- Courts may look past the government’s stated purpose to determine whether a third-party summons is actually aimed at identifying and investigating unnamed taxpayers, triggering § 7609(f).
- An IRS summons issued to a third party as a substitute for a John Doe summons, without complying with § 7609(f), is unenforceable.
- An appellate court may resolve an IRS summons-enforcement dispute on statutory/procedural grounds without reaching asserted attorney-client privilege or constitutional defenses.

## Conclusion

The First Circuit held that the IRS could not enforce summonses compelling defense attorneys to disclose an unnamed client’s identity where the record supported that the agency was effectively pursuing a John Doe investigation and had not complied with the judicial-approval requirements of 26 U.S.C. § 7609(f), leaving privilege and constitutional questions unresolved.


United States v. Gertner, 65 F.3d 963 (1st Cir. 1995)