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Victory For Taxpayer Confidentiality

A court ruling on Friday was a victory for those seeking information requests to the White House. A group called “Cause of Action” sued the IRS in 2013 trying to ascertain if the White House ever requested private taxpayer information, especially in light of the IRS scandal.

The requests, however, were declined by the IRS, who cited section 6103 of the tax code, which is the section governing taxpayer confidentiality laws. They argued that “the existence of those requests would be protected by confidentiality laws and couldn’t be released, so there was no reason to make the search.”

The judge however, Amy Berman Jackson, disagreed with their response, noting that “the agency couldn’t use the privacy protection ‘to shield the very misconduct it was enacted to prohibit.’” The IRS was subsequently ordered to turn over any and all recorded requests from the White House seeking taxpayer information. In December 2014, TIGTA acknowledged the existence of about 2500 documents that fit the FOIA request, from “Cause of Action”, asking for communication between the IRS and the White House. It will be interesting to see what these documents reveal.

There’s already been some hints at confidentiality impropriety. Remember that in August 2010, Austan Goolsbee spoke about the Koch Brothers’ tax structure in an anecdote to attack businesses and openly discussed tax information about their business structure that was not publicly available. Additionally, in October 2010, the agency sent a database on 501(c)(4) social-welfare groups containing confidential taxpayer information to the Federal Bureau of Investigation, according to documents obtained by a House panel.

It wouldn’t be a stretch, therefore, to imagine that the White House, the “most transparent administration ever”, also requested or received confidential taxpayer information in collusion with the IRS.

More Calls For Koskinen’s Dismissal

Ron DeSantis (R., Fla.) chairman of the House Oversight and Government Reform Subcommittee on National Security and Jim Jordan (R., Ohio), chairman of the Subcommittee on Health Care, Benefits, and Administrative Rules, also recently called on President Obama to remove John Koskinen from the head of the IRS. Alternatively, they propose Congressional impeachment if Obama does not due his due diligence and remove Koskinen himself.

DeSantis and Jordan made their case in the pages of the Wall Street Journal and is reprinted below in its entirety, as it provided a thorough summation of Koskinen’s incompetence:

“Internal Revenue Service Commissioner John Koskinen needs to go.

When it was revealed in 2013 that the IRS had targeted conservative groups for exercising their First Amendment rights, President Obama correctly called the policy “inexcusable” and pledged accountability. He even fired the then-acting IRS commissioner because he said it was necessary to have “new leadership that can help restore confidence going forward.”

Unfortunately, Commissioner Koskinen, who took over in the wake of the IRS targeting scandal, has failed the American people by frustrating Congress’s attempts to ascertain the truth. A taxpayer would never get away with treating an IRS audit the way that IRS officials have treated the congressional investigation. Civil officers like Mr. Koskinen have historically been held to a higher standard than private citizens because they have fiduciary obligations to the public. The IRS and Mr. Koskinen have breached these basic fiduciary duties:

• Destruction of evidence. Lois Lerner, at the time the director of the IRS’s exempt-organizations unit, invoked the Fifth Amendment on May 22, 2013, when appearing before Congress; her refusal to testify put a premium on obtaining and reviewing her email communications. On the same day the IRS’s chief technology officer issued a preservation order that instructed IRS employees “not to destroy/wipe/reuse any of the existing backup tapes for email, or archiving of other information from IRS personal computers.”

Several weeks later, on Aug. 2, the House Oversight Committee issued its first subpoena for IRS documents, including all of Ms. Lerner’s emails. On Feb. 2, 2014, Kate Duval, the IRS commissioner’s counsel, identified a gap in the Lerner emails that were being collected. Days later, Ms. Duval learned that the gap had been caused in 2011 when the hard drive of Ms. Lerner’s computer crashed.

Despite all this—an internal IRS preservation order, a congressional subpoena, and knowledge about Ms. Lerner’s hard-drive and email problems—the Treasury inspector general for tax administration discovered that the agency on March 4, 2014, erased 422 backup tapes containing as many as 24,000 emails. (Congress learned of the discovery only last month.)

Ms. Duval has since left the IRS and now works at the State Department, where she is responsible for vetting Hillary Clinton’s emails sought by congressional investigations of the Benghazi attacks.

• Failure to inform Congress. Mr. Koskinen was made aware of the problems associated with Ms. Lerner’s emails the same month Ms. Duval discovered the gap. Yet the IRS withheld the information from Congress for four months, until June 13, 2014, when the agency used a Friday news dump to admit—on page seven of the third attachment to a letter sent to the Senate Finance Committee—that it had lost many of Ms. Lerner’s emails.

During that four-month delay, Mr. Koskinen testified before Congress under oath four times. On March 26, 2014, he appeared before the Oversight Committee and pledged that the IRS would produce all of Ms. Lerner’s emails, not mentioning that the IRS already knew of the problems with her emails and hard drive. Mr. Koskinen deliberately kept Congress in the dark. Based on testimony received by the committee, we now know that the IRS appears to have spent the four months working with the Obama administration to fine-tune talking points to mitigate the fallout.

• False testimony before Congress. Mr. Koskinen made statements to Congress that were categorically false. Of the more than 1,000 computer backup tapes discovered by the IRS inspector general, approximately 700 hadn’t been erased and contained relevant information. But Mr. Koskinen testified he had “confirmed” that all of the tapes were unrecoverable.

He also said: “We’ve gone to great lengths, spent a significant amount of money trying to make sure that there is no email that is required that has not been produced.” In reality, the inspector general found that Mr. Koskinen’s team failed to search several potential sources for Ms. Lerner’s emails, including the email server, her BlackBerry and the Martinsburg, W.Va., storage facility that housed the backup tapes.

The 700 intact backup tapes the inspector general recovered were found within 15 days of the IRS’s informing Congress that they were not recoverable. Employees from the inspector general’s office simply drove to Martinsburg and asked for the tapes. It turns out that the IRS had never even asked whether the tapes existed.

Three weeks after the 422 other backup tapes were destroyed by the IRS, Mr. Koskinen told the committee that he would produce “all” Lerner documents. This statement was clearly false—you can’t give Congress “all” of the material if you know that you have already destroyed some of it.

• Failure to correct the record. After his false statements to Congress under oath, Mr. Koskinen refused to amend them when given the opportunity at a public hearing earlier this year. If a lawyer makes a false statement to a court, he has a duty to correct it. Civil officers like Commissioner Koskinen have a duty to the American people to revise their testimony when it contains inaccuracies.

• Failure to reform the IRS to protect First Amendment rights. Mr. Koskinen hasn’t acted on the president’s May 2013 promise to “put in place new safeguards to make sure this kind of behavior cannot happen again.” A Government Accountability Office report released last week found that the IRS continues to lack the controls necessary to prevent unfair treatment of nonprofit groups on the basis of an “organization’s religious, educational, political, or other views.” In other words, the targeting of conservative groups may very well continue.

If the president doesn’t remove Mr. Koskinen from his post, then Congress should remove him through impeachment. The impeachment power is a political check that, as Alexander Hamilton wrote in Federalist No. 65 in 1788, protects the public against “the abuse or violation of some public trust.”

Supreme Court Justice Joseph Story echoed Hamilton in 1833 when he distinguished impeachable offenses from criminal offenses, noting that they “are aptly termed political offenses, growing out of personal misconduct or gross neglect, or usurpation, or habitual disregard for the public interests . . . They must be examined upon very broad and comprehensive principles of public policy and duty.”

John Koskinen has violated the public trust, breached his fiduciary obligations and demonstrated his unfitness to serve. Mr. President, it’s time for Commissioner Koskinen to go. If you don’t act, we will.”

Koskinen Should be Fired

Last month, Rep. Jason Chaffetz (R. Utah) wrote a letter regarding John Koskinen, the commissioner of the IRS, asking President Obama to remove him from his post. As the IRS is a part of the Department of the Treasury, it falls under the authority of Executive Branch.

Chaffetz rightly calls out Koskinen for “obstruction” with regard to the various congressional investigations, which have revealed bungled IRS responses to repeated inquiries. At the time of his letter in late July, it had recently been revealed that IRS workers destroyed Lerner’s backup tapes from 2010-2011, losing 24,000 emails in the processes.

Chaffetz has it right. Even now, a month after calling on Obama to dismiss Koskinen, there have been even more revelations of IRS misconduct. This include that fact that 10 groups have still yet to be approved for tax-exempt status — with some waiting as long as 5 years — due to a “backlog of cases”. Even more egregiously, the IRS only revealed last week during court proceedings that Lois Lerner used a second, private email account with the alias “Toby Miles” to conduct IRS business (on top of her IRS email and another private email account). The fact that after years into the investigations, only last week this information was disclosed to the public shows an unrepentant IRS.

If Obama is unwilling to actually dismiss Koskinen from his deplorable actions, it shows he lacks the fortitude to fix the critical problems at the IRS. In fact, it proves that he really is the root of the problem.

More Lois Lerner Deceit: An Alias Email Address

The Washington Times has the story on this new information being admitted to by the IRS — Lois Lerner used another separate personal email account with an alias, “Toby Miles”, to conduct professional business. This now makes three email accounts used by Lerner, the other two being her work email and another personal email that was previously known.

After all this time, to only now come clean about a third email account is egregious. The IRS lawyer, Geoffrey Klimas, tried to deflect the situation by arguing “that the IRS had previously hinted there may be other personal email accounts, pointing back to a footnote in a letter attached to a June 27, 2014, brief that mentioned “documents located on her personal home computer and email on her personal email account.”

However, that wording was also altered on Monday — evidencing backtracking and cover-up — referring now to her ‘personal home computer and email on her personal email’ account(s).” So the IRS deliberately retained the information the Lerner had a second personal email account, by which she used an alias. The alias, by the way, is her dog’s name.

The Times also reports that “Curiously, the Ways and Means Committee criminal referral mentioned the Toby Miles email address, identified as tobomatic@msn.com. The address came to light because it was included on an email that also hadMs. Lerner’s official account on the chain of recipients….at the time of the referral in April 2014, the committee linked the Toby Miles address to Ms. Lerner’s husband, Michael R. Miles, but said, “The source of the name ‘Toby‘ is not known.”

At no time did Lerner, or anyone else at the IRS, admit that the “Toby Miles” email account belonged instead to Lois Lerner. Nor has that email address been searched.

Lerner, of course is not the first, or second, or third administration member to use extra or secret email accounts, with or without aliases. Former Secretary of State Hillary Rodham Clinton and her top aides, the White House’s top science adviser, top Environmental Protection Agency officials and now the IRS, have all done this. All part of the “most transparent administration ever.”

IRS-White House Doc Link, Part II: Feds Site Privacy Laws Prohibiting Release


Last week, TIGTA revealed the existence of around 2500 documents “relating to investigations of the improper disclosure of confidential taxpayer information by the IRS to the White House.” December 1st was the deadline for the Department of Justice’s tax department to turn over those documents, as ordered by a judge. You can read more of that background story here.

The group involved in the FOIA request for documents is called “Cause of Action”, and they consider themselves a government watchdog of sorts. In an email last week from TIGTA on the matter, the department asked for more time (from Dec 1 to Dec 15) to go through the remaining 500 of the 2500 documents to determine if they were pertinent. This acknowledgment of the documents seemed promising that TIGTA would be forthcoming on the matter, as they have been pretty above board during the IRS Scandal in general.

However, yesterday TIGTA appeared to retreat from its openness by withholding the bulk of the documents. A letter from TIGTA counsel to the group noted that there were 2,509 pages of documents “potentially responsive to your request”, and of those, 2,043 were in fact responsive. However, TIGTA cited tax code and privacy as the reason not to disclose those documents, saying “All of the 2,043 pages of documents we have determined to be responsive were collected by the Secretary of the Treasury with respect to the determination of possible liability under Title 26 of the United States Code. These pages consist of return information protected by 26 U.S.C. § 6103 and may not be disclosed absent an express statutory exception.”

The group will receive 466 documents on December 15 that apparently aren’t protected information. However, the sheer number of documents being withheld, which are acknowledged to a) be correspondence between the White House and IRS, and b) to contain protected “return information” reveal a stunning breach of propriety. The letter also contained a fairly lame notation that “Treasury Secretary Jack Lew is now looking into ‘potential liability’ that his tax aides broke laws in sharing taxpayer information with the White House.”

Forbes raised some interesting points on the matter: “A key question is whether any officials at the White House have ever asked anyone over at the IRS to transmit private taxpayer information to the White House in violation of law. Another question, regardless of whether the White House asked for any taxpayer information, is whether the IRS ever transmitted any.”

So is there a pattern of targeting from the White House? And will the hard drive containing the withheld documents suddenly crash?

Forbes sullenly concluded that “the data may seem unimportant, and hopefully it will turn out to be. Still, the privacy protections for taxpayer data held by the IRS are among the most sensitive parts of the tax law. That makes any alleged transgressions of these rules serious. It makes this topic arguably the worst part of the IRS scandal so far.”

Indeed. 2000+ documents linking the IRS and the White House, yet unavailable for review. Is there still “no smidgen of corruption”?