The IRS Scandal and Other Stories

 

As an attorney who concentrated in the area of tax law for fair number of years after spending another two years at a CPA office, which specialized in tax work, the entire Lois Lerner centered IRS scandal is enough to make a call for some sort of revolution sound like reasoned judgment. The whole thing reeks of corruption, beginning with the mishandling of the initial exemption applications by Tea Party groups, up through the recent assertion that the data, central to the investigation, was “irretrievably lost.” This last must be an utter fabrication. The IRS does not lose information of this sort. If it did then it would not be able to do what it does on a daily basis, whether processing tax paperwork, auditing, or arguing with taxpaying entities over whether they have followed the rules. The IRS takes great care of the information it wants to keep track of, and the only reason why this particular information could get “lost” is because the IRS wants to lose it. This, of course, assumes that it is actually lost, which is certainly untrue.

The story began with all the various filings made to the Tax Exempt Organizations Section of the IRS by the various patriot groups, who were seeking the same status as the vast number of other entities, which serve the opposite side of the political spectrum.   The key point in time is 2009, when the Tea Party groups began to impact political events. It was at about this time that the tax exempt organization filings began. They were met with illegal delaying tactics, which were obviously motivated by a desire to keep them from being an effective force in the upcoming elections.

When it became obvious that something wasn’t going according to Hoyle, complaints and then lawsuits and investigations followed. All of this began well before the current Congressional investigation began, making it imperative for the IRS to archive all materials that might have evidentiary value to the case. This is standard operating procedure at all levels of criminal and civil law in US jurisdictions. Failure to do can result in sanctions for evidence tampering, obstruction of justice and what is known as spoliation of evidence. One of these sanctions, pointed out by Congressman Trey Goudy is allowing a jury to make a negative inference against the defendant; effectively placing that defendant in a position of guilty until proven innocent by virtue of his failing to preserve and disclose the evidence.

The people in charge, and especially Lois Lerner knew or should have known that the email files were important evidence in the proceedings at whatever level, and should have immediately stored them in a non-volatile format so that they would be available when needed. Instead, we are expected to assume that they went on with business as usual until wonder of wonders, the key disk drive (and a few others which also probably contained important information) supposedly crashed, leaving all the key information lost. If this were a criminal case against a private citizen they would now be facing charges for obstruction of justice. Lerner should know this as a former federal prosecutor. But because the defendant is a government entity, we are expected to take the matter at face value, and that they acted in good faith. This, in the face of six years of lies emanating primarily from the White House and the Department of Justice.

To begin with, the IRS Manual, the document that is supposed to govern IRS practice and procedure requires that the Service maintain its records for future reference, not for a few months, but for years. Second, the Service is not operating on low quality equipment that can be expected to fail at the drop of a hat. Third, it has a nearly $2 billion per year information technology budget, so blaming the situation on budget cuts is rank foolishness to someone who knows the facts.

 

Among those facts, is that the government generally has state of the art technology long before the rest of us. And the government constantly complains about a lack of funds that it supposedly has to deal with, although while the rest of us have to budget finite resources, the government acts as if there is an infinite amount of money available at all times for all purposes, regardless of what they are.

Another fact is that the IRS, by failing to preserve the emails, has violated its own rules, and the rules governing civil and criminal litigation, not to mention its additional failure to report the supposed disk failures to the national archives, which is charged with maintaining such records after the agencies no longer need them. As a result, the officials involved should be subject to the severest sanctions including, in this case, the equivalent of a guilty verdict on all counts for violation of the constitutional rights of the exempt organization filers. Another fact that should not be ignored is that if the missing emails had proven that Lerner and the White House functionaries were blameless, they would certainly not be missing. There cannot be any serious doubt that the easily accessed records were deliberately erased, with the people giving the orders secure in the knowledge that corrupt Attorney General Eric Holder would do nothing to enforce the law, and that the backups held by other custodians such as Sonatech, the company that had the data backup contract would be safe from investigation.

Another important fact is that Lois Lerner should probably not have ever been appointed to head the Exempt Organization Section, because she had no prior experience with exempt organizations or the IRS. Her past work was as a prosecutor with the Department of Justice.

The same can be said for current IRS commissioner John Koskinen. Koskenin, like Lerner has excellent academic credentials, but had no experience with the IRS before being appointed Commissioner in 2013. Neither had Dan Werfel who acted as commissioner previously.

Because of the specialized nature of these positions, they should have been filled with individuals having significant prior experience with the tax system, and especially in exempt organization. Perhaps they could have been promoted from within, or appointed from prominent positions as lawyers or CPAs. Of course, finding such people who would also cooperate with government malfeasance and subsequent cover-ups might have been difficult.

Lerner. Koskinen, and anyone else who may be implicated in the illegal activities of the Tea Party targeting scandal should be facing severe prison terms, disbarment if they are qualified as attorneys, and a permanent ban on future government employment. Forfeiture of government pensions and other such benefits would also be reasonable.

What is most important is that the impetus behind the IRS’s gross misconduct was purely political and had to originate with the White House and almost certainly with the Oval Office. The emails on Lerner’s computer would almost certainly show an electronic paper trail leading back to the highest levels of responsibility, and that would be the ultimate embarrassment to people who claim to be running the most ethical and most transparent government in history. Their corruption would finally be laid bare in a way that no one, not even MSNBC, would be able to ignore. This is precisely why the evidence had to be destroyed, if at all possible.

But what anyone well versed in the world of electronic communications will tell you, nothing that goes over the internet is ever really lost. It may, at best, be hiding somewhere. The question is, whether or not it can be found. Unfortunately, by the time the smoking guns in this case are unearthed, it will be well past too late and the damage may be irreparable.

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