A reader with a long background of employment at the IRS writes on an aspect of the IRS scandal that hasn’t received much attention and that draws on his experience at the agency:
I’m a fan and regular reader. Thanks for your yeoman’s work on the IRS scandal. I’m also retired from a 35-year law enforcement career, 22 of which were at the IRS Criminal Investigation Division, so I have some insight into the Service and its workings (although I spent all but one year doing money laundering – narcotics, and organized crime cases – rather than tax.)
I’m quite surprised that no one has mentioned Section 1203 of the Internal Revenue Code, which mandates terminations of IRS employees who commit any of what are known in the Service as the “10 Deadly Sins.” Passed in the 19990s after the last major Congressional hearings (Revenue Reform Act of 1998), section 1203 is the neutron bomb that hangs over employees. Violations of 1203 are supposed to be non-negotiable, with termination the only result, although I believe the Commissioner can mitigate and sometimes does, usually in cases involving non-wilfull understatement of tax liability.
At any rate, you’ll notice that several of these provisions could be applicable in the present instance, notably (b) (2), (b) (3) (A), and (b) (7). If I were Ms. Lerner, Mr. Miller (who relied heavily on 6103 in his testimony), or anyone in that chain, 1203 would be a huge concern. It is for every Service employee, which is why I and others were always very cautious about taking unapproved initiative in areas that skated close to 1203. (Getting that signature, for example, even in Title 18 seizures, which probably aren’t covered. But when you’re talking “shall terminate the employment” “probably” isn’t safe enough.)
I’m not a lawyer. I don’t know if these provisions would apply in the present case, but I and every employee are acutely conscious that they exist. This is why the concept of “two rogue employees” is so far-fetched for me. They would have to be very “rogue” to take their chances with 1203. Much more “rogue” than anybody I knew at IRS.
Finally, I’d note that when I was working at IRS-CID, taking the Fifth in any proceeding was grounds for termination. I have no idea whether that’s true for other IRS employees, but a Special Agent could never take five and survive. You don’t have a constitutional right to a government job.
I’ve included section 1203 below. Took it from the NTEU website. (I detested the NTEU and CID criminal investigators are not members of that or any union.)
[Name withheld by request}, Special Agent (Retired)
On its face, section 1203 requires a final administrative or judicial determination. In the current scandal, we don’t even have pending administrative or judicial proceedings. Here is section 1203:
(a) In General.–Subject to subsection (c), the Commissioner of Internal Revenue shall terminate the employment of any employee of the Internal Revenue Service if there is a final administrative or judicial determination that such employee committed any act or omission described under subsection (b) in the performance of the employee’s official duties. Such termination shall be a removal for cause on charges of misconduct.
(b) Acts or Omissions.–The acts or omissions referred to under subsection (a) are–
(1) willful failure to obtain the required approval signatures on documents authorizing the seizure of a taxpayer’s home, personal belongings, or business assets;
(2) providing a false statement under oath with respect to a material matter involving a taxpayer or taxpayer representative;
(3) with respect to a taxpayer, taxpayer representative, or other employee of the Internal Revenue Service, the violation of–
(A) any right under the Constitution of the United States; or
(B) any civil right established under–
(i) title VI or VII of the Civil Rights Act of 1964;
(ii) title IX of the Education Amendments of 1972;
(iii) the Age Discrimination in Employment Act of 1967;
(iv) the Age Discrimination Act of 1975;
(v) section 501 or 504 of the Rehabilitation Act of 1973; or
(vi) title I of the Americans with Disabilities Act of 1990;
(4) falsifying or destroying documents to conceal mistakes made by any employee with respect to a matter involving a taxpayer or taxpayer representative;
(5) assault or battery on a taxpayer, taxpayer representative, or other employee of the Internal Revenue Service, but only if there is a criminal conviction, or a final judgment by a court in a civil case, with respect to the assault or battery;
(6) violations of the Internal Revenue Code of 1986, Department of Treasury regulations, or policies of the Internal Revenue Service (including the Internal Revenue Manual) for the purpose of retaliating against, or harassing, a taxpayer, taxpayer representative, or other employee of the Internal Revenue Service;
(7) willful misuse of the provisions of section 6103 of the Internal Revenue Code of 1986 for the purpose of concealing information from a congressional inquiry;
(8) willful failure to file any return of tax required under the Internal Revenue Code of 1986 on or before the date prescribed therefore (including any extensions), unless such failure is due to reasonable cause and not to willful neglect;
(9) willful understatement of Federal tax liability, unless such understatement is due to reasonable cause and not to willful neglect; and
(10) threatening to audit a taxpayer for the purpose of extracting personal gain or benefit.
Our reader adds this note: “Believe me, every employee at IRS is acutely conscious of 1203, no matter where they work. After it was passed seizures, liens and levies dropped to almost zero. Took a long time for people to even think about sticking their necks out.”
We invite knowledgeable readers to weigh in in the comments or by email to email@example.com.