I am late posting on Harper v. Rettig, 46 F.4th 1 (1st Cir. 2022), 1st Cir. here and GS here. So the principal point of this blog is to point to the excellent writings of others, which I provide below.
The basic holding of the case (as I understand it) is that, based on CIC and Direct Marketing, the Anti-Injunction Act, § 7421(a) (“AIA”)) does not apply to IRS actions to gather information as opposed to actions to assess and collect tax. As a result, under CIC, a taxpayer can have pre-enforcement review challenging the validity of the JDS and the resultant unlawful acquisition and retention of his financial information, on the notions that; (i) the APA § 702 contemplates pre-enforcement review of IRS information gathering activity (as opposed to assessing or collecting activity) and (ii) the ex parte John Doe Summons (“JDS”) is an information gathering function rather than a tax assessing or collecting function.
My only comment is that the underlying issue as to whether a taxpayer can get pre-enforcement review of the validity of a JDS is an important one. The holding seems to portend a wide swath of pre-enforcement challenges in various other IRS information-gathering activities. In a comment posted to a PT Blog, I asked (cleaned up for typos):
