TaxProf Blog

Editor: Paul L. Caron
Pepperdine University School of Law

Wednesday, January 20, 2016

The IRS Scandal, Day 986

IRS Logo 2Legal Insurrection, Tea Party Class Action Against IRS Abuse May Proceed:

Tea Party groups won a major victory last week, when Judge Susan J. Dlott of the United States District Court for the Southern District of Ohio certified a class of Tea Party organizations that allege the IRS intentionally delayed their applications for preferential tax treatment based on their political viewpoints. ...

Having survived the hazardous class certification step, the Plaintiffs will now get substantive discovery from the IRS and from third parties. ...

Ms. Lerner’s deposition, assuming Plaintiffs are able to take it, will be a blockbuster.  Ms. Lerner, of course, was the senior-most identified IRS official with knowledge and apparent participation in slow-rolling IRS applications.  She would be entitled to assert her 5th Amendment right against self-incrimination, but only for questions that could lead to criminal penalties against her.

A subpoena to appear for deposition can also include a request for documents.  This is called a subpoena duces tecum.  In a very limited set of circumstances, production of documents can raise Fifth Amendment issues, but it is rare and not obviously applicable here.  This means that any email correspondence to or from Ms. Lerner regarding Tea Party groups should be discoverable.

In addition, a jury is entitled to make a negative inference against a party asserting his or her Fifth Amendment rights in a civil suit.  That is, Ms. Lerner or anyone else appearing on behalf of the IRS could assert his or her Fifth Amendment rights, but the jury would be entitled to assume he or she is doing so because the answer would be incriminating.  If the IRS refused to answer the question “did you delay Tea Party applications?” the jury would be entitled to infer that the deponent or witness is refusing to answer the question because the IRS did in fact delay Tea Party applications.

In a criminal case, the jury is forbidden from drawing any negative inference from a witness’s assertion of his or her Fifth Amendment rights.

In short, Ms. Lerner can repeat her despicable performance before Congress, and continue to stonewall the search for what exactly happened at the IRS, why, and on who’s orders, but she may well suffer personal repercussions now that she was able to evade in Congress’s hearings (with the assistance of a complacent and complicit Department of Justice).

http://taxprof.typepad.com/taxprof_blog/2016/01/the-irs-scandal-day-986.html

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Comments

In other news, the IRS is in hot water for destroying evidence in another case today. Microsoft filed a FOIA and the IRS destroyed a hard drive after they were ordered to preserve it, just like the Tea Party cases. The entire agency is corrupt.

Posted by: wodun | Jan 20, 2016 2:23:20 PM

Where's Publius Nauseous?

Posted by: Teapartydoc | Jan 20, 2016 4:59:03 PM