TaxProf Blog

Editor: Paul L. Caron
Pepperdine University School of Law

Friday, December 2, 2016

The IRS Scandal, Day 1303:  Group Sues IRS For Failure To Produce Communications With Joint Committee on Taxation

IRS Logo 2Press Release, CoA Institute Sues IRS for Improperly Shielding Records:

Cause of Action Institute (CoA Institute) today filed a lawsuit against the IRS after the agency refused to produce records under the Freedom of Information Act (FOIA) relating to its dealings with Congress’s Joint Committee on Taxation (JCT).

In December 2015, the IRS Office of Chief Counsel issued new guidance claiming that nearly all IRS records relating to the JCT should be treated as “congressional records” and therefore shielded from public disclosure under FOIA. This revised guidance contradicts long-standing precedent for what records government agencies must provide in response to FOIA requests.

CoA Institute Vice President John Vecchione: “The IRS continues to withhold agency records that the American people have a right to see. Agency records, including communications with Congress, are subject to FOIA. But the IRS is now attempting to change the rules and withhold all of its communications with, and other records relating to, the JCT. Our lawsuit challenges what appears to be a ploy by the IRS to avoid transparency.”

For months, CoA Institute has sought IRS communications with JCT and other JCT-related records, including those that reflect internal deliberations concerning the agency’s dealings with the JCT.  By definition, these are agency records, as they would necessarily have been received or created by the IRS and are currently in the possession of the agency.  Such records would have been used by IRS employees and uploaded or stored into IRS recordkeeping systems, including e-mail or correspondence

On November 22, 2016, in response to CoA Institute’s administrative appeal, the IRS re-affirmed its conclusion that the requested records were not subject to FOIA and went a step further to describe CoA Institute’s FOIA requests as “too broad and too nebulous.” The Department of Justice has explained, however, that “[t]he sheer size or burdensomeness of a FOIA request, in and of itself, does not entitle an agency to deny that request on the ground that it does not ‘reasonably describe’ records.” The IRS never indicated that it was unable to locate records responsive to CoA Institute’s FOIA requests, nor did it suggest it required a narrowed scope or clarification as to the records sought.

CoA Institute’s lawsuit seeks to prevent the IRS from improperly shielding agency records from disclosure under FOIA.

The lawsuit can be found here.

Exhibits can be found here.

http://taxprof.typepad.com/taxprof_blog/2016/12/the-irs-scandal-day-1303group-sues-irs-for-failure-to-produce-communications-with-joint-committee-on.html

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Comments

More relevant to the issue is what the IRS didn't send to the Joint Committee on Taxation as required by statute, namely, the bulk disclosure of non-profit tax returns to the DOJ. It would be very instructive to see if any of those millions of pages from tens of thousands of 501(c)(4) organizations ever resulted in a single investigation...

Posted by: MM | Dec 2, 2016 7:35:27 AM

For a second, consider the possibility that the IRS is correct. If so, does this give congressional staffers an additional tool for IRS oversight? After all, these records are congressional records according to the IRS. Does the Congress have access to its own records? If the IRS denies access to Congress then how could they be Congress' records?

Posted by: TMLutas | Dec 2, 2016 8:19:08 AM

There needs to be a special prosecutor for the IRS on January 21, 2017.

Posted by: VoteOutIncumbents | Dec 2, 2016 12:09:36 PM