Rep. Jason Chaffetz (R-Utah), Chair of the House Committee on Oversight and Government Reform, has introduced H. Res. 737, which would condemn and censure IRS Commissioner John Koskinen. Efforts to impeach or censure the Commissioner are the latest skirmish between Congress and the embattled IRS stemming from the IRS’s use of “Be On the Lookout” (BOLO) lists to screen for excessive political activity by applicants for tax-exempt status under Code section 501(c)(4). The American College of Tax Counsel (ACTC) has sent several House leaders a compelling letter expressing its “view that such actions are not commensurate with the alleged conduct” and its justifiable concern that resolutions to impeach and censure Commissioner Koskinen “will damage the agency at a time when it needs strong leadership.”
Readers may recall that Steve Miller was Acting Commissioner when the Treasury Inspector General for Tax Administration (TIGTA) released its report on the BOLO issue, entitled “Inappropriate Criteria Were Used to Identify Tax-Exempt Applications for Review” in May 2013. Miller resigned shortly after that, because President Obama asked Secretary of the Treasury Jack Lew to request Miller’s resignation. Daniel Werfel then became Acting Commissioner for about seven months. Mr. Koskinen did not become IRS Commissioner until Dec. 23, 2013. This was a challenging time to take on that role, given the state of the IRS’s relationship with Congress. The House Committee on Oversight and Government Reform held particularly partisan, contentious hearings.
As I have written previously, Lois Lerner, the former Director of the IRS’s Exempt Organizations Division, became the face of the controversy. After being put on paid administrative leave, she retired in September 2013. FBI and DOJ investigations of the 501(c)(4) issue found evidence of IRS mismanagement but no criminal activity. In a March 2015 follow-up report, TIGTA found that the IRS was no longer using BOLO lists.
The censure and impeachment efforts relate to government attempts to obtain Lois Lerner’s emails. Production of these emails was a major challenge for the IRS, for many reasons, as detailed in an enclosure accompanying a June 2014 letter from IRS employee Leonard Oursler to the Senate Committee on Finance. Among them was the fact that Ms. Lerner’s computer’s hard drive had crashed in June 2011. In written testimony before the House Oversight Committee in March 2014, Commissioner Koskinen stated that “More than 250 IRS employees have spent nearly 100,000 hours working directly on complying with the investigations, at a cost of nearly $8 million. In order to properly protect taxpayer information while efficiently processing voluminous materials for production, we had to add capacity to our information technology systems and, therefore, spent an additional $6 million to $8 million to optimize existing systems and ensure a stable infrastructure.” In June 2015, TIGTA reported that “[n]o evidence was uncovered that any IRS employees had been directed to destroy or hide information from Congress, the DOJ, or TIGTA”, although it also found “that the IRS did not put forth an effort to uncover additional, responsive emails” (p.18 of TIGTA’s June 30, 2015 report). Bryan Camp discusses that issue in a post at Procedurally Taxing.
Others have observed that the attempt to impeach Commissioner Koskinen seems partisan and unjustified, as well as unprecedented. It is an unnecessary distraction for an agency struggling with inadequate resources. Moreover, attacks like this one will no doubt deter other talented individuals from being willing to serve in the top ranks of the IRS. The ACTC is right in requesting “Congress [to] reject impeachment and censure, and instead apply its time and attentions to improving both the tax law and the administration of our tax system.”
The Surly Subgroup 
I agree completely with Professor Lederman’s thoughtful analysis. – Joseph Bankman, Ralph M. Parsons Professor of Law and Business, Stanford Law School
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I agree totally with Leandra’s conclusion. Bryan Camp, George H. Mahon Professor of Law, Texas Tech University School of Law.
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In my judgment, the IRS made a good faith effort, hampered by Congessionally-imposed resource constraints, to comply with the Committee’s broad subpoena and the Commissioner honestly reported what had been told to him in briefings by his overwhelmed IT people. In this setting, the Committee’s effort to raise understandably imperfect responses to the level of impeachable offenses is clearly overreach.
Cliff Fleming, Ernest L. Wilkison Chair and Professor of Law, Brigham Young University Law school
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As do I. Ellen P. Aprill, John E. Anderson Professor of Tax Law, Loyola Law School, Los Angeles.
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I agree with Professor Lederman.
Linda Galler, Professor of Law, Maurice A. Deane School of Law at Hofstra University
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Thank you for putting in writing what so many in the tax professional community believe. I too support the IRS Comissioner and strongly oppose the House hearings and the call for impeachment proceedings. Francine J. Lipman, William S. Boyd Professor of Law, University of Nevada, Las Vegas
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I agree with Leandra
Reuven Avi-Yonah Irwin I. Cohn Professor of Law The University of Michigan
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I fully support Professor Lederman’s letter and the comments of the other law professors above. Commissioner Koskinen is a victim of partisan vitriol. He is just trying to do his job, with both hands tied behind his back by Congress’s refusal to provide adequate funding. Any agency who is responsible for collecting taxes from citizens will not be popular. However, I hope we will never have to see how the country will operate without those tax dollars.
Sincerely, Roberta F. Mann
Mr. & Mrs. L.L. Stewart Professor of Business Law
University of Oregon School of Law
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I wholeheartedly support the compelling arguments that Leandra makes in her letter.
As a U.S. tax academic watching this play out from across the Northern border, I am grateful for the efforts of the tax community to bring some sanity to this disgraceful episode.
Emily Satterthwaite
Assistant Professor, University of Toronto Faculty of Law
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I wholeheartedly agree with Professor Lederman’s post.
Kathleen DeLaney Thomas
Assistant Professor of Law, University of North Carolina School of Law
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This is not how to treat someone who has generously devoted his tireless efforts towards public service.
Andy Grewal
Professor of Law
University of Iowa College of Law
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Professor Lederman has concisely and thoughtfully explained the current and future harms this episode is having of our ability to attract talented administrators and instill public confidence in the tax system. Congress must begin acting responsibly to be part of the solution, not just escalating the problems for the sake of sound bites.
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I agree with the OP and other comments; thanks for posting.
Hayes Holderness, Visiting Assistant Professor, University of Illinois College of Law
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I completely agree with Professor Lederman’s analysis and conclusion.
Fred B. Brown
Associate Professor of Law
Director of the Graduate Tax Program
University of Baltimore School of Law
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Congress made a request, the Commissioner complied despite having limited resources, Congress requested more, the Commissioner did his best to comply, and Congress was unhappy that perfection was not forthcoming. Leandra in her post and Bryan in his provide excellent rational explanations of why H. Res. 737 is unwarranted. If perfection in doing one’s job is the standard, and if it were to apply to the Congress, the litany of impeachment and censure proceedings would be long indeed.
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Leandra has written a thoughtful and accurate post, which I am proud to endorse. Many thanks, for this important contribution. I think it’s quite telling that although many of us disagree on a lot of things about the tax system, there is remarkable unanimity on this.
Alice
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Please add my voice to the chorus. Impeachment is the wrong response here. I have recently retired from academia after more than two decades as a tax law professor, and this is one of the more disturbing moves I have seen.
Donna Byrne
Former Professor of Law, Mitchell Hamline School of Law
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Thank you for posting this. I am in full agreement.
Lisa Milot
Associate Professor, University of Georgia School of Law
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Thank you for this thoughtful commentary. I agree completely.
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The efforts to impeach a good man on a partisan basis go beyond normal partisan warfare. It is corrosive to our democracy. I thus support your conclusion Leandra that the Republican effort to impeach Koskinen is ill-considered and wrong.
Philip Hackney
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I too support Professor Lederman’s conclusion that efforts to impeach Koskinen are are baseless and wrong, and the tone of the rhetoric is damaging to democracy.
Benjamin Leff
Professor, American University Washington College of Law
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I completely agree with Professor Lederman’s conclusions.
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Professor Lederman’s conclusion is correct that efforts to impeach Koskinen are are baseless and wrong. I echo Ben’s comments about the harm this rhetoric causes.
David Herzig
Professor Valparaiso University School of Law
Visiting Professor Loyola University Law School (Los Angeles)
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I could ‘t agree with you more, Leandra. Well put.
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Thanks, Leandra. You’ve laid out well why this impeachment is both unprecedented and absurd; it is unconscionable that Congress won’t give the IRS enough money to do what it needs to do, will then make demands with which it lacks the resources to comply, and then will attempt to punish the Commissioner for his inevitable inability to comply.
Sam Brunson
Professor, Loyola University School of Law.
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