While the pundit class is transfixed this time of year by the midterm elections, less attention has been paid to what’s actually going on in the halls of power and the reforms needed to bring balance and accountability back for the taxpayers that elected President Trump. With last month’s appointment of a new commissioner for the Internal Revenue Service, for example, conservatives have the opportunity to reform one of the most powerful government agencies. The sprawling bureaucracy of the executive branch has allowed the opaque practices of the so-called swamp to thrive; recent memory provides plenty of examples of corruption and abuse that persist.
When it was first discovered that the IRS was manipulating the tax status of conservative groups based on their political affiliation in 2013, the IRS acting commissioner and head of the division responsible eventually resigned, but the tenure of subsequent IRS Commissioner John Koskinen was characterized by the scandal. Years of oversight hearings resulted in little clarity from Koskinen regarding the full extent of the agency’s missteps.
It was a further source of frustration that Koskinen stayed on until fall 2017 to lead the agency under the new president, whose commitment to “draining the swamp” seemed incompatible with allowing the head of an agency that had demonstrated an increasing disregard for taxpayers’ rights to remain.
To make matters worse, more than 10 months passed before a new agency head was confirmed by the Senate to replace its interim leader. After being elevated to take over the embattled agency by a vote of 65 to 33 in September, new IRS Commissioner Charles Rettig has his work cut out for him.
Restoring trust in the agency is crucial in light of its checkered past as a steward of taxpayer dollars. Especially as the Trump administration heralds its efforts to streamline the administrative state, the IRS must redouble its efforts to realign its actions with its mission. On its website, the IRS states its purpose is to “enforce the law with integrity and fairness to all.”
However, recent actions by the agency show it has fallen far from this creed.
For 50 years, the National Taxpayers Union has analyzed and contributed to the infrastructure in the federal tax code that protects taxpayers from unfair practices. In fact, NTU served on the congressional panel that ultimately led to the landmark IRS Restructuring and Reform Act of 1998 and the adoption of the new mission statement mentioned above.
However, the more things change, the more they stay the same. Just this month, the National Taxpayers Union filed an amicus brief in the case of PBBM-Rose Hill v. Commissioner of Internal Revenue, concerning key protections enshrined in that law. Of concern in this case is the tax agency’s failure to follow the law protecting taxpayers from arbitrary audit tactics by the IRS. Our brief argues the IRS wholly ignored specific guidance from Congress on administering penalties, a violation the court wrongly permitted in its hearing of the case. The question at hand is the application of the federal tax deduction for conservation easements, a perfectly conventional tax practice that allows a property owner to set aside land for ecological protection purposes. While such donations have been permitted by law for nearly half a century, recent overtures from the IRS demonstrate an increasingly erratic approach to overseeing them. In July, we made some of our concerns about the IRS’s practices clear:
What is perhaps even more worrisome than just the fiscal calculus is what the IRS’s behavior toward easement deductions augurs for sound tax administration … In the case of listing certain conservation easement deduction transactions, the IRS has leapfrogged over some of these safeguards. Worse, the agency applied its decision retroactively to transactions dating back as far as 2010, a terribly disruptive move that will impose millions of dollars in deadweight costs on taxpayers who had been led to believe they were in compliance with the law.
This is one very troubling example in which the agency has shown willingness to engage in enforcement by implication, skirting both the spirit and letter of its statutory responsibilities in favor of denigrating wholly lawful tax practices. The reason? As we saw in the years concerning groups’ tax-exempt status, bureaucrats have for too long been allowed to effuse public practice with their personal preferences. This results in an increasingly exotic web of administrative tools for otherwise conventional administration actions — a capricious combination that bodes poorly for taxpayers.
As the new IRS commissioner settles into the job, he has a choice to make. He can pick up the mantle of restoring the trust in an embattled agency on which taxpayers depend for fair tax enforcement or he can allow the inertia of poor practices to further disconnect the agency from its mission. Throughout its five decades, NTU has painfully discovered that every wave of encroachment on taxpayers’ rights begins with a few telltale ripples, and the IRS’s disturbing crusade against conservation easements is one of them.
If the midterm elections sweep a new era of divided government into Washington, partisan pursuits cloaked as overtures of oversight will be rampant in Congress. Rettig became IRS commissioner with bipartisan support in the Senate and oversees a federal revenue code that is a product of years of contributions from both parties. Importantly, the safeguards provided by the 1998 law were bipartisan accomplishments, an acknowledgment that an agency that is permitted to weaponize its procedures against one set of taxpayers can undermine the safety of all.
The Trump administration can reverse this trend — but it must start now, by acting in accordance with those statutes. Only by ending the practice of inventing interpretations that fly in the face of the law can the IRS begin to restore its image as an agency taxpayers can trust. Every day it fails to do so is one more day removed from its renewed pledge to “enforce the law with integrity and fairness to all.”
Mattie Duppler (@MDuppler) is a contributor to the Washington Examiner's Beltway Confidential blog. She is the senior fellow for fiscal policy at the National Taxpayers Union. She's also a visiting fellow at the Independent Women's Forum, and the president of Forward Strategies, a strategic consulting firm.