Back to the Blacklist: IRS Makes Sketchy Determinations of "Subversive" Organizations

It seems we can now add the IRS to the list of anti-terrorism agencies along with the CIA, the Defense Department and the National Security Agency, but it does not get nearly the scrutiny it deserves.

Thanks to a sharp-eyed Washington tax lawyer, we now know that every low-level examiner in the IRS's tax-exempt organization division is instructed to decide whether each organization he or she examines is a "subversive" organization. What's more, if an examiner deems a local charity "subversive," the examiner is supposed to keep his conclusion a secret and promptly send his evidence to Washington for further study. What happens next is anybody's guess, but the procedure is nefarious, insidious and un-American. Non-profits that examiners suspect are "subversive" are effectively subjected to a secret trial by the IRS, but they aren't allowed to know about the suspicion much less defend themselves against it.

This news should be a shock to anyone who survived the red-baiting '50s and the resultant destruction of reputation and careers of both civil servants and private citizens. It seems incredible in this time when government strives for transparency in all its operations that traces of the blacklist are part of its operations.

According to Marcus Owens, the former IRS official-turned-tax lawyer who uncovered this process simply by reading the agency's Internal Revenue Manual (IRM), the process "appears to call for a classification of taxpayers by their political views." He says it is not only inappropriate, it is unlawful.

The procedure is described in the IRM and is clearly labeled "Subversive Organizations." It tells the examiner, if you believe "that an exempt organization is subversive, [you] should not discuss this with the entity's representative, but should prepare a detailed report setting forth all pertinent information ... and forward it to EO [exempt organizations] Rulings and Agreements." There is no definition of "subversive" and or indication of how the information is handled in Washington.

Owens was appalled at his discovery and wrote to the IRS commissioner for assurances that the procedure was no longer the policy of the IRS and requested that it be removed from the IRM, a public document. He also wanted confirmation that the process would not appear in the agency's Law Enforcement Manual, a secret document. He pointed out to the commissioner that the IRS had not engaged in such classifications of taxpayers since the days of the Nixon Enemies List when the "secretive Special Service Staff of the IRS target[ed] individuals and organizations that the administration considered to be political 'enemies' and 'extremist organizations.'"

Since he considered the implications of the IRM procedure so "profound," Owens also filed a Freedom of Information Act request for documents related to its use, if any, but then asked the commissioner to provide a "more candid and detailed response" than the release of mere documents might offer. In particular, he asked the commissioner to reveal how the agency defined a "subversive" organization, the number or organizations so designated, whether they were ever informed of that status, and what the IRS did or intended to do with them after sending their files to Washington.

Perhaps by press time the commissioner will have already responded to Owens' letter and the administration will have already released the documents. But Owens told me that if his FOIA request is not answered in a timely fashion, he will file suit on behalf of his clients for release of the documents, so a court rather than the IRS will make the decision. He is hopeful, however, that such a lawsuit would inspire the agency to act on its own.

I doubt the IRS wants to be known as a violator of its own rules, much less as the last bastion of the blacklist.

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Bruce D. Collins

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