Today is the last day of my tenure as the National Taxpayer Advocate. It has been a wild ride over these last 18 years. It will take me years to sort out what has gone on over this period. I have been so privileged to have seen so much, learned so much, worked with wonderful people and assisted long-suffering taxpayers and representatives as they navigate the IRS “underground” (2019 Roadmap). I’ve been fortunate to work with so many committed members of Congress and their staff, in the House and the Senate, on both sides of the aisles. The Taxpayer Advocate Service’s remit – to ensure taxpayers are treated right by the IRS and their rights protected – has no party affiliation; witness the recently enacted Taxpayer First Act.
I have been overwhelmed by the outpouring of emails, comments, and reflections these last few weeks. I really don’t know how to express my own gratitude for the patience of taxpayers and their representatives as TAS and I have tried to make their case over the years on all sorts of issues. The way I have been able to accept these tributes is to say to myself, “People think it is me, but it is all of TAS. One person alone can’t do this.” Without the people of TAS, without supporters inside and outside the IRS, urging us on, we wouldn’t be able to bring about change. The role TAS and the National Taxpayer Advocate play in tax administration is that of a change agent. Because of the bureaucratic nature of the IRS, change is slow. But TAS does not give up.
Which leads me to the topic of this blog. When I announced my retirement in a blog on March 1, 2019, I identified a “short list” of items I planned to focus on, intently, over the months remaining in my tenure. Previously, the IRS Commissioner had asked me to come up with some recommendations or issues that could be addressed, preferably without significant expenditure of resources, so I designed the short list to fit that bill, as well. What follows is an update on where we are with the short list.
Private Debt Collection
TAS has long advocated that taxpayers with incomes below their Allowable Living Expenses (ALEs, the measures the IRS uses to determine whether the taxpayer has the ability to pay basic living expenses) be excluded from the Private Debt Collection (PDC) initiative. We have shown over and over that PDCs are collecting significant amounts of taxes from taxpayers who would be placed in Currently Not Collectible status, if the IRS were to actually talk with these taxpayers. I believe the IRS has the administrative authority to exclude these taxpayers from the PDC initiative by saying they are not in the “potentially collectible inventory.” To date, the IRS has refused to do so, despite TAS’s evidence of the harm inflicted on these taxpayers and the high default rate of installment agreements.
But Congress has intervened here. In section 1205 of the Taxpayer First Act, Congress has required the IRS to exclude from the PDC initiative individual taxpayers whose adjusted gross income is not greater than 200 percent of the federal poverty level. Although we had recommended a slightly higher percentage, we estimate this will exclude a significant majority of taxpayers whose income is below ALEs.
Even better, Congress has stepped in to require the IRS to do something it actually committed to do in December 2015 but has been dragging its feet and stalling for four years. In 2015 the IRS Commissioner agreed with my recommendation to exclude taxpayers who received Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI) – both means-tested programs – from the PDC initiative. The IRS has not implemented this agreement, and as a result, over a thousand of the most vulnerable taxpayers in the United States have been subjected to collection calls and many have agreed, out of fear, to pay the IRS money they cannot afford. It is shameful that the IRS refused to implement this; and I am embarrassed for the IRS that Congress had to step in and make the IRS do what it committed to do in 2015. Sadly, the effective date is December 31, 2020, which is realistic in terms of programming requirements; but had the IRS acted in 2016, so much harm would have been avoided.
Training on Taxpayer Rights
I had previously recommended that the IRS create an annual training course on the Taxpayer Bill of Rights (TBOR) for all taxpayer-facing employees. In early 2017, following the adoption and codification of the TBOR, the IRS training officers approached TAS to create just such a training. My folks designed a course, that had modules and examples of how TBOR was made “real” in specific job categories – exam, collection, appeals, international, etc. Initially, the IRS was supportive, but then, mysteriously, in its response to the 2016 Annual Report to Congress, the IRS declined to provide such training. This response was particularly confusing in light of Congress enacting IRC § 7803(c), which requires the Commissioner to ensure that IRS employees are trained on the TBOR.
So again, Congress stepped in to bring about the result it intended. Section 2402 of the TFA requires the IRS Commissioner to submit a comprehensive training plan within a year of enactment that shall include “a plan to develop annual training regarding taxpayer rights, including the role of the Office of the Taxpayer Advocate, for employees that interface with taxpayers and the direct managers of the such employees.” So, the IRS will have to do what it previously declined to do. This actually makes me sad. This stuff is common sense and good tax administration. Congress should not have to micro-manage the IRS in this way.
Exclusion of TAS Open Cases from Passport Certification
Section 32101 of the Fixing America’s Surface Transportation (FAST) Act authorizes the IRS to certify to the Department of State taxpayers whose federal tax debts exceed $50,000 (inflation-adjusted for 2019 to $52,000). According to IRS Chief Counsel, Congress afforded the IRS significant discretion in determining which accounts to certify. The result of certification is that the taxpayer’s passport cannot be issued or renewed and may even be revoked. Since the enactment of this provision, TAS has argued that if taxpayers meeting the criteria are in TAS, actively working to resolve their issues, they should not be certified. In fact, I view certification of a taxpayer in TAS as a violation of the right to a fair and just tax system, which provides that taxpayers have the right to seek TAS assistance.
Up until recently, the IRS has refused to respect the taxpayer’s right to seek TAS assistance to resolve their problems in the context of passport certification. However, temporarily the IRS has suspended certification of cases that are open in TAS, similar to its treatment of taxpayer whose installment agreements and offers in compromise are pending. TAS has a high resolution rate for these cases, meaning we have worked with the taxpayers and the IRS to enter into collection alternatives, or taxes have been abated below the certification threshold. This is a reasonable approach and I commend the IRS for adopting it. However – and this is a big however – it is not permanent. I have urged the IRS to adopt this as policy. If it doesn’t, Congress may step in and make the IRS do what it foot-dragged on. How embarrassing.
Economic Hardship Indicator
In the 2018 Annual Report to Congress, based on TAS research studies showing that IRS entering into streamlined installment agreements and collecting dollars from taxpayers whose incomes were below their allowable living expenses, we recommended that the IRS implement an “economic hardship indicator.” This indicator would be placed on accounts where the taxpayer’s income (based on most current information of income and family size) was less than their maximum ALEs. The indicator is not a final determination of currently not collectible status. Rather, we recommended the IRS use this indicator to improve its collection selection strategies and, most importantly, to prompt collection employees to have a conversation with taxpayers about their ability to pay. For example, if a taxpayer called the IRS balance due line (if they could get through) in response to an IRS collection notice, if there were an economic hardship indicator on the account, a “pop-up” screen could provide the assistor with the most recent income data and the assistor could then ask a few questions to determine whether the taxpayer, in fact, was experiencing economic hardship and should be place in Currently Not Collectible status. If things worked as they really should, there would be a conversation about offers in compromise, so the debt would be fully resolved.
To date, the Small Business Self-Employed Operating Division has opposed this recommendation. In my opinion, they have no logical basis for this opposition. I wonder, sometimes, if their performance “success” is based on collection dollars, which come from the most vulnerable folks. If they couldn’t collect from taxpayers experiencing economic hardship, who are terrified of the IRS collection powers, would they actually be able to collect from the folks who can afford to pay their debts but have able representatives. Just wondering.
So, this recommendation on my short list is unresolved and left to my successor. You all know where I and TAS stand on this.
TAS Attorney Hiring Prohibition
Anyone who has read one of our Reports to Congress or our congressional testimony understands that independent attorney advisors play a central role in enabling TAS to fulfill both its case advocacy and its systemic advocacy missions. In case advocacy, TAS attorneys help the National Taxpayer Advocate advocate for taxpayers in legally complex cases. In systemic advocacy, TAS attorneys work on internal advocacy projects and write the National Taxpayer Advocate’s annual reports to Congress, including the Purple Books, and for the “most litigated issues” section of the reports, they read, analyze, and summarize hundreds of Tax Court and other federal tax cases each year. Simply put, TAS could not function effectively without independent attorney advisors. In 1998, the House-Senate conference report explaining the IRS Restructuring and Reform Act said the “conferees intend that the National Taxpayer Advocate be able to hire and consult counsel as appropriate.” In proposing an amendment along similar lines to the Senate version of the bill, Senator Grassley explained: “In order to make the Taxpayer Advocate more independent, which is what this bill does, it logically follows that the Taxpayer Advocate should have its own legal counsel.”
Since shortly after the creation of TAS and continuing until 2015, the National Taxpayer Advocate was permitted to hire attorney advisors. But in 2015, the Treasury Department began enforcing a policy that provides that, with the exception of attorneys reporting to the Inspectors General (IG) or the Comptroller of the Currency, all attorneys in the Department must report to the General Counsel (and not to an independent official like the National Taxpayer Advocate). The General Counsel bases its policy on a statutory provision that says: “The General Counsel is the chief law enforcement officer of the [Treasury] Department.” While we think there is room to argue that that provision doesn’t preclude allowing the National Taxpayer Advocate to continue to hire attorney advisors, particularly in light of the legislative history evincing congressional intent to allow it, the General Counsel has informally told us (i) it plans to continue its policy of prohibiting the hiring of attorneys outside the direct control of the General Counsel absent a statutory carve-out (which the IGs and the Comptroller of the Currency currently have) and (ii) it would not oppose a statutory carve-out that explicitly authorizes the National Taxpayer Advocate to hire attorney advisors.
Since 2015, the number of TAS attorney advisors has declined from 15 to 9. Absent a change in the Department’s policy, it is critical that Congress act quickly to ensure the next National Taxpayer Advocate have the legal support he or she needs to do the job. A recommendation to this effect was included in our 2019 Purple Book.
LITC Final Regulation
Let there be no doubt: the existence of Low Income Taxpayer Clinics (LITCs) is not only a guarantee of the right to representation, but also the right to a fair and just tax system. I have spent my entire career ensuring the most vulnerable U.S. taxpayers have access to representation, because that is a necessary perquisite to obtaining access to justice in a system like ours. It has been my privilege to oversee the LITC Grant Program and watch it grow over the years. It is now over 20 years since the enactment of the LITC grant program authorized in the Internal Revenue Service Restructuring and Reform Act of 1998 (RRA 98). Since TAS assumed oversight and governance of the LITC grant program in 2004, we have developed principles and policies that further the right to representation. Since 2013, we have worked with the Office of Chief Counsel and the Department of Treasury on a final regulation, that would institutionalize those principles. There is now a consensus within the IRS and Chief Counsel on this regulation; I am hopeful that this regulation will soon see the light of day, and a formal infrastructure for LITCs will be part of the framework of tax administration. The United States is leading the world in the protection of low income taxpayers; it needs the regulation to ensure it continues to do so.
Internal Revenue Manual Chapters on Taxpayer Assistance Orders and Taxpayer Advocate Directives
The National Taxpayer Advocate has no authority other than that provided by statute or delegation order (of course, she has her independent voice, which I do not discount). Internal Revenue Code section 7811 provides the National Taxpayer Advocate, and her delegates, the authority to order the IRS to do something, cease doing something, or not do something it is about to do. By statute, only the IRS Commissioner or Deputy Commissioner (or the National Taxpayer Advocate) can modify or rescind a Taxpayer Assistance Order (TAO) that the National Taxpayer Advocate herself issues.
When I came into TAS, the organization had issued only about 5 TAOs in one year – this despite the fact that Congress had significantly expanded TAO authority in RRA 98 and expected many more. TAS employees were worried that issuing TAOs would damage their relationship with the IRS functions. I told them that if issuing a TAO damaged their relationship, they didn’t have a relationship – they had unrequited love. Period.
In our discussions with the IRS regarding updating the Internal Revenue Manual (IRM) provisions relating to TAOs and Taxpayer Advocate Directives (TADs), the IRS has objected to many proposed provisions. Frankly, the IRS hates TAOs. TAOs stop things from happening. The IRS constantly complains about being stopped in its tracks. It complains that the National Taxpayer Advocate stops things from moving forward – that it takes too long to resolve issues. My response? If IRS had listened to taxpayers in the first place, it wouldn’t be in this situation. All too often, the reason why a TAO is issued is because the IRS has cycle time measures and just cuts things off after a certain passage of time. So, if a TAO requires the IRS to take the time to review things, so much the better.
The IRS also hates that the National Taxpayer Advocate can set the timeframes for responses. My response? Take that up with Congress – it established in IRC § 7811 that the National Taxpayer Advocate could order the date certain by which the IRS must respond. It did that because under previous versions of the section, the IRS ignored the Taxpayer Advocate’s and Taxpayer Ombudsman’s orders.
One of the most sensitive issues is whether matters should be raised to the IRS Commissioner. Now, I understand the sensitivity of raising a taxpayer case to a Presidentially-appointed political appointee. But in the area of TAOs, Congress has spoken. In IRC §7811 it has explicitly said either the IRS Commissioner or Deputy Commissioner can rescind or modify the National Taxpayer Advocate’s TAO. Congress knew how to write a statute and not include the IRS Commissioner. Instead, it explicitly contemplated the IRS Commissioner would weigh on specific taxpayer cases. Yes, I know these are highly partisan times. But I was there, in 1998, and they, too, were highly partisan times. Congress thought the IRS Commissioner should know how the IRS was treating specific taxpayers in cases raised by the National Taxpayer Advocate, and it wrote that in the law.
I do understand why we would not want the IRS Commissioner to make decisions about specific taxpayers. That is why I have proposed the TAO be first reviewed and considered by the IRS Deputy Commissioner; if the IRS Deputy Commissioner rescinds or modifies the TAO in a way the National Taxpayer Advocate cannot accept, the National Taxpayer Advocate can elevate the issue to the IRS Commissioner. Our draft IRM requires the National Taxpayer Advocate to not include any taxpayer identifying information in the elevation memo. It is all about the issue, which is appropriate – by the time a TAO comes up to the National Taxpayer Advocate and is sustained to the IRS Commissioner, it is all about the issue. The identity of the taxpayer is irrelevant.
This approach is modeled after the statutory appeal process, enacted in Section 1301 of the Taxpayer First Act, for the Taxpayer Advocate Directive, a delegated authority by which the National Taxpayer Advocate can order the IRS to take an action, stop an action, or not commence an action with respect to a group of taxpayers, or all taxpayers, where there is a risk of serious harm or infringement of taxpayer rights. So again, although the IRS protests, Congress has stepped in to make clear how important TAS is.
It would be wonderful if IRS could learn from this recent legislation and apply it to our IRMs. But we are still negotiating with the IRS about this. I wonder if the IRS thinks that the TAS position is just driven by Nina. That is a profound misunderstanding of the TAS – it is assuming TAS’s leadership is relatively rudderless. Nothing could be further from the truth. The IRS will find that out after July 31.
Transparency of Chief Counsel Guidance
In the 2018 Annual Report to Congress, I highlighted the lack of transparency in Chief Counsel Guidance, specifically Program Manager Technical Advice (PMTAs). We were particularly concerned about the lack of training and procedures for Chief Counsel employees to identify advice that constituted PMTAs and thus were required to be released under a consent agreement between IRS and Tax Analysts. In addition, we were concerned about the National Taxpayer Advocate’s ability to request legal advice from Chief Counsel pertaining to programs that she herself did not operate, e.g., offers in compromise or private debt collection. I’m pleased to say that we have had productive discussions with the Office of Chief Counsel on all fronts, and I am confident, in very short order, that Chief Counsel will be posting guidance to its attorneys on this matter.
I am going to take the month of August off to just …. relax and cogitate. But I will be back, as the Executive Director of the Center for Taxpayer Rights. Among several projects, I will be organizing the 5th International Conference on Taxpayer Rights, in partnership with the Taxpayer Advocate Service, hosted by the University of Pretoria, South Africa, on September 30 and October 1, 2020. After August 1, 2019, you can reach me at email@example.com.
And … thank you. I will say again, it has been an enormous privilege to serve as the National Taxpayer Advocate. To say I will miss it, is an understatement. But there is much to do, going forward, and I look forward to the next stage.
Update: The Taxpayer Advocate Service, the IRS or the US Government is not affiliated with or endorsing the 5th International Conference on Taxpayer Rights.