announced that it will return $29,500 seized from Maryland dairy farmer Randy Sowers. "This is exactly what we wanted," said Sowers in press release from the Institute for Justice, the public interest law firm that worked with him on the case. "I hope they give other people's money back. And beyond that I just hope they quit taking people's money."Editor's Note: Yesterday, the federal government
When the Internal Revenue Service (IRS) came to visit Randy Sowers, it had already seized his entire bank account—over $60,000. The IRS agents, two clean-cut types in dark blue jackets, came unannounced to the dairy farm, South Mountain Creamery, that Randy and his wife have run for more than 30 years.
The agents began asking Sowers a series of strange questions: Why did he deposit cash at the bank? Why were so many of his cash deposits in amounts under $10,000? Did he know that cash deposits over $10,000 were reported to the federal government?
Sowers answered the questions as best he could. The farm deposited cash because it sold milk at farmers markets. A bank teller had told them that deposits over $10,000 required additional paperwork, but the Sowers had no idea what that paperwork consisted of. They limited the size of their deposits only because they thought it made life easier for the bank workers. The agents nodded, seemingly satisfied. They said they did not believe he was a criminal. Nonetheless, they finally told him, his bank account had been seized.
Unbeknownst to him, Sowers' bank deposits had landed him at the intersection of a number of disturbing trends in American law: draconian civil forfeiture, the overcriminalization of everyday life, and the government's increasing hostility to cash as a medium of financial exchange.
Like hundreds of other Americans, Sowers was targeted because he had run afoul of a sprawling government surveillance program aimed at the nation's financial system. Federal law requires banks to report all cash transactions over $10,000 to the federal government. Federal law also makes it a crime, called structuring, for bank customers to deposit or withdraw cash in amounts under $10,000 in order to avoid that reporting requirement.
IRS agents across the country, often in cooperation with state and local law enforcement, monitor banking activity for frequent sub-$10,000 cash transactions. The IRS can then use civil forfeiture to seize entire bank accounts that it believes were involved in "structured" transactions.
Because these cases are brought against the property in question—the Sowers' case was captioned United States v. $62,936.04 in U.S. Currency—protections that govern criminal proceedings do not apply. Owners of "guilty" property have no right to counsel. Without ever having to secure a criminal conviction (or even file charges), the federal government is excused from its obligation to prove guilt beyond a reasonable doubt. Officials can seize property based on mere suspicion of a crime and effectively force property owners to prove their own innocence to get it back.
Moreover, when the IRS takes property using civil forfeiture, that property goes into a special federal fund, the Treasury Forfeiture Fund, which allows the IRS to fund its law enforcement activities. That arrangement provides an incentive for the IRS to seize as much property as possible, even when the property owner may have done nothing wrong. In 2014, the net position for the fund (that is, the amount retained after paying obligations) was $1.9 billion, a staggering rise from $69 million in 1993, the year after the fund was created.
In theory, this system is supposed to root out criminals seeking to hide their activities from the government. In practice, its targets are all too often small-business owners guilty of nothing more than doing business in cash.
Many of these stories begin the same way as Sowers': A bank teller, unhappy at having to fill out government paperwork, suggests to a customer that life would be easier if he kept his deposits under $10,000. Neither the teller nor the customer has any idea that evading that paperwork is a federal crime.
Other business owners have similarly innocent reasons for keeping cash deposits under $10,000. For example, the insurance policy for Michigan grocery store owner Terry Dekho only covered cash up to $10,000. Other businesses, such as Mark Zaniewski's gas station near Detroit, simply do not generate more than $10,000 in cash revenue in the time between bank deposits. The IRS seized the bank accounts for both businesses without even asking for an explanation for the pattern of sub-$10,000 deposits.
A 2015 Institute for Justice report found that between 2005 and 2012 the IRS seized more than $242 million for alleged structuring violations in over 2,500 cases. In at least a third of those cases, the IRS reported no suspected criminal activity apart from the mere act of depositing or withdrawing amounts under $10,000.
No More Secrets
This federal surveillance program traces its origins to the Bank Secrecy Act of 1970. For the first time, the federal government required banks to report cash transactions over $10,000. The law was explicit in its aims, stating that Congress believed these reports would have a "high degree of usefulness in criminal, tax, or regulatory investigations or proceedings."
Largely accepted today, the Bank Secrecy Act was controversial when adopted, narrowly surviving a vigorous legal challenge by the American Civil Liberties Union (ACLU), the California Bankers Association, and several individual bank customers. A three-judge district court panel ruled against the law shortly after it was enacted, holding 2–1 that the "domestic reporting provisions" were "repugnant to the Fourth Amendment."
The U.S. Supreme Court reversed, upholding the law in its 1974 decision California Bankers Association v. Shultz. Writing for the majority, Justice William Rehnquist conceded that the act "might well surprise or even shock those who lived in an earlier era" but upheld the law as a necessary response to "the heavy utilization of our domestic banking system by the minions of organized crime."
In an acerbic dissent, Justice William Douglas argued that it was "sheer nonsense" to suggest that "all bank records of every citizen 'have a high degree of usefulness.'" "Suppose Congress passed a law requiring telephone companies to record and retain all telephone calls and make them available to any federal agency on request," he presciently suggested. "Would we hesitate even a moment before striking it down?"
Photo Credit: Jason Keisling