Sixth Circuit loses patience with the IRS

Today, nearly 1,050 days since the start of the IRS scandal triggered by allegations that the IRS unlawfully and unethically targeted tea party and other conservative organizations for special scrutiny, the litigation continues. One allegedly targeted group brought suit against the IRS for its conduct, and the IRS has resisted the litigation with the same dilatory tactics that infuriated members of Congress.

In the latest development, a federal district court ordered the IRS to turn over information concerning groups that were subject to the mistreatment identified by the agency's inspector general. The IRS didn't like this and is now seeking a writ of mandamus in order to avoid having to disclose more information. The U.S. Court of Appeals for the 6th Circuit is not amused.

Today's opinion in In re United States of America/United States v. NorCal Tea Party Patriots denying the IRS petition begins:

Among the most serious allegations a federal court can address are that an executive agency has targeted citizens for mistreatment based on their political views. No citizen-Republican or Democrat, socialist or libertarian -should be targeted or even have to fear being targeted on those grounds. Yet those are the grounds on which the plaintiffs allege they were mistreated by the IRS here. The allegations are substantial: most are drawn from findings made by the Treasury Department's own Inspector General for Tax Administration. Those findings include that the IRS used political criteria to round up applications for tax-exempt status filed by so called tea-party groups; that the IRS often took four times as long to process tea-party applications as other applications; and that the IRS served tea-party applicants with crushing demands for what the Inspector General called "unnecessary information."

Yet in this lawsuit the IRS has only compounded the conduct that gave rise to it. The plaintiffs seek damages on behalf of themselves and other groups whose applications the IRS treated in the manner described by the Inspector General. The lawsuit has progressed as slowly as the underlying applications themselves: at every turn the IRS has resisted the plaintiffs' requests for information regarding the IRS's treatment of the plaintiff class, eventually to the open frustration of the district court. At issue here are IRS "Be On the Lookout" lists of organizations allegedly targeted for unfavorable treatment because of their political beliefs. Those organizations in turn make up the plaintiff class. The district court ordered production of those lists, and did so again over an IRS motion to reconsider. Yet, almost a year later, the IRS still has not complied with the court's orders. Instead the IRS now seeks from this court a writ of mandamus, an extraordinary remedy reserved to correct only the clearest abuses of power by a district court. We deny the petition.

On the question at hand, the 6th Circuit ultimately concluded that the information could be disclosed, despite the protestations of the IRS. As the decision summarizes its holding:

we hold that the names, addresses, and taxpayer-identification numbers of applicants for tax-exempt status are not "return information" under § 6103(b)(2)(A). And we otherwise emphasize that the phrase "data, received by, recorded by, furnished to, or collected by the Secretary[,]" as used in § 6103(b)(2)(A), does not entitle the IRS to keep secret (in the name of "taxpayer privacy," no less) every internal IRS document that reveals IRS mistreatment of a taxpayer or applicant organization-in this case or future ones. Section 6103 was enacted to protect taxpayers from the IRS, not the IRS from taxpayers.

As the panel forthrightly acknowledges, this conclusion conflicts with a 2001 decision of the U.S. Court of Appeals for the D.C. Circuit. This might encourage the IRS to seek certiorari. Then again, the IRS would risk yet another court losing patience with its shenanigans.

The 6th Circuit opinion concludes:

In closing, we echo the district court's observations about this case. The lawyers in the Department of Justice have a long and storied tradition of defending the nation's interests and enforcing its laws-all of them, not just selective ones-in a manner worthy of the Department's name. The conduct of the IRS's attorneys in the district court falls outside that tradition. We expect that the IRS will do better going forward. And we order that the IRS comply with the district court's discovery orders of April 1 and June 16, 2015-without redactions, and without further delay.