If “You’ve Got Mail” from Government Agencies, “You’ve Been Served”
Can I Be Sued Through E-Mail?
Federal agencies with civil enforcement authority, like the Securities Exchange Commission, Internal Revenue Service, and others, can bring civil lawsuits against individuals and entities who may have violated the laws those agencies are charged with enforcing. Like any civil action, the government must serve the suit upon the named defendants. If a defendant is subject to the court’s jurisdiction but resides outside the United States, the Federal Rules of Civil Procedure permit the government to serve the defendant using electronic mail (e-mail).
We have previously discussed the IRS using John Doe warrants to investigate those overseas with tax liabilities. The IRS has also recently announced “Relief Procedures for Certain Former Citizens” for individuals residing overseas who have not filed U.S. tax returns and have net assets of less than $2 million. However, only taxpayers whose past compliance failures were non-willful can take advantage of this new policy. Many in this group have likely lived outside the United States for most of their lives, and never realized that they had U.S. tax obligations. We expect the IRS to start aggressively using its civil enforcement authorities like the SEC, CFTC, and FTC have in the past.
Pursuant to Federal Rules of Civil Procedure 4(f)(3), an individual may be served outside the United States “by any . . . means not prohibited by international agreement, as the court orders.” One international agreement concerning service is the Hague Convention, and applies in all cases to the governments agreeing to it. Signatories to the Hague Convention “shall designate a Central Authority which will undertake to receive requests for service coming from other Contracting States,” and the Hague Convention sets forth the procedure for effecting service through the Central Authority. Additionally, any authorized alternative means must satisfy due process; in other words, the method of service must be reasonably calculated, under all the circumstances, to advise the defendant of the proceeding.
What Steps Should I Take?
After being served via e-mail, the defendant has 21 days to file an answer or responsive pleading, like a motion to quash service or dismiss the case. Courts across the country have found requests for e-mail service were improper because the government could not prove that it was reasonably likely that the defendant could actually receive the email. The government must show that the defendant does business online and has recently communicated via the email address in question, or, at a minimum, that the defendant “regularly” used that specific e-mail address. Finally, a motion to quash service or dismiss might be appropriate if international law prohibits service via e-mail.
Have You Received an E-Mail?
Investigating these matters and filing the appropriate responsive pleadings can be complicated when the client is overseas. If you receive an e-mail from an agency (SEC, IRS, etc.), you need to retain experienced legal counsel as soon as possible. If you believe you are under federal investigation, or if you are an attorney with a client under federal investigation, contact the Law Offices of Horwitz & Citro, P.A. immediately.