My name is Darren Larsen. I am an attorney in private practice
in Southern California, specializing in tax controversies and
bankruptcy matters. From 1981 through 1994, I was employed as an
attorney in the Office of Chief Counsel for the Internal Revenue
Service in three different districts. I served my last three years
in the position of Assistant District Counsel, including extensive
duty as Acting District Counsel. I was personally involved in
matters concerning all functions of the IRS: Examination,
Collection, Criminal Investigation and Disclosure. From 1986 through
1994, I represented the IRS in Bankruptcy Court as a Special
Assistant United States Attorney in the Alaska District and the
Central District of California. I frequently served as a nationwide
instructor for attorneys and managers as well as for IRS training
and continuing education. I was a member of a joint Chief Counsel -
IRS national task force on bankruptcy procedures through which I
visited several districts throughout the country. Because of my
particular expertise concerning IRS collection issues, I maintained
close relationships with many individuals in the IRS, particularly
revenue officers and managers in the Collection Division.
I speak to you today as a tax professional who has spent many
years representing the Internal Revenue Service in court and working
with and advising IRS personnel on their cases. Over the past 2 1/2
years I have also had the opportunity to deal with the IRS as a
taxpayer's representative. My feelings toward the IRS as an
institution are mixed.
While it is sometimes easy to express frustration and even
outrage at IRS conduct, I must state at the outset that there are
many outstanding individuals currently employed by the IRS who have
superior technical knowledge, commendable devotion to their jobs and
a commitment to fairness. At the other end of the spectrum, however,
are those employees whom I have encountered both as a government
attorney, and as a practitioner, who lack technical skills, lack any
sense of justice or fairness, and are interested only in remaining
employed to receive a paycheck. That having been said, I will now
move on to more specific examples of problem areas within the IRS as
an institution.
As an attorney for the IRS, I was often appalled by the lack of
technical knowledge on the part of the front line managers. I knew
group managers who had the responsibility to review and sign off on
administrative summonses who did not know the basic requirements for
content of the summons or the rules for service. The less
experienced revenue officers unfortunately learned from these
managers and consequently made mistakes. I knew one manager who did
not understand the distinction between a lien and a levy. The
revenue officers who knew the manager had these shortcomings were
forced to use other resources for assistance. I was also dismayed at
some of the "on-the-job instructors" who were lacking in some of the
legal fundamentals and passing on their incompetence to newer
revenue officers.
In addition to simple lack of knowledge, I also knew of revenue
officers who understood the legal and procedural requirements for
certain actions but consciously bypassed them. Specifically, I dealt
with a revenue officer over a period of several years who, on more
than one occasion, issued nominee or alter ego levies without the
required pre-review. Typically he would receive payment of the tax
and that would be the end of it. If there was a problem, only then
would he go through the required steps. He was a "good" revenue
officer in that he collected a lot of tax and closed a lot of
difficult cases and, consequently, he was given a great deal of
latitude in how he worked his cases. He felt justified in taking
shortcuts because he felt he had good instincts and got what he felt
were the right results, i.e.- payment of the tax. When he was later
promoted to group manager, the revenue officers in his group were
allowed to work their cases in a similar manner, as long as they
didn't make a mistake. There was often a prevailing notion in the
collection groups that if a summons or some other procedure was not
exactly handled in accordance with the law that the taxpayers
probably would not know the difference. And, if the taxpayer didn't
comply and there was a problem down the road, it could always just
be done over. The same attitude was taken with respect to other
actions: if someone's watching, I'll take the time to do it right,
otherwise I will do it the easiest way because it's unlikely my
manager or the taxpayer will catch it.
In one district in California, IRS Collection managers blatantly
disregarded the law with respect to ownership of personal residences
because they felt it was unlikely many taxpayers would know that the
law protected them. In California, if married people hold title to
real property as joint tenants it is presumed, under State law, that
they do hold as joint tenants rather than as community property. The
presumption may be overcome by a factual showing that the couple
actually intended it to be community. The difference for IRS is
significant: when only one spouse owes tax, only 1/2 of joint
tenancy property may be seized, while 100% of community property may
be seized. In the district, the IRS took the position that all joint
tenancy property would be presumed to be community, and it would be
up to the taxpayer to prove otherwise. The result was the IRS
treating 100% of a personal residence as being subject to the tax
lien and insisting on payment accordingly, whether by seizure and
sale or by settlement. The reality is that most taxpayers do not
know the law regarding community property and they rely upon the IRS
to "do the right thing." However, in this situation the IRS was
taking advantage of the ignorance of the general public on a
technical legal issue to the detriment of the non-owing spouse. The
IRS advisors and managers I spoke with admitted knowledge of the
State law, but justified this policy by stating that people usually
think their property is community anyway so this is just more
expedient. It's the "mindset" that allowed this to go on that
concerns me.
While reviewing the procedures followed in many districts in
handling bankruptcy cases, it became apparent that in some offices
the IRS was ignoring the law regarding the automatic stay in
bankruptcy and the discharge injunction. Because it was not
designated as a program area, and training was insufficient, some
managers devoted few -- if any -- resources to stopping collection
action upon filing of a bankruptcy petition, to monitoring
bankruptcy cases for issuance of the discharge order, to properly
adjusting taxpayer accounts after issuance of a discharge, or to the
releasing of liens after discharge. This inattention to the most
basic of tasks was also detrimental to the collection of the
revenue.
As a taxpayer representative, I am now even more aware of how
important it is for the IRS representatives to follow the procedures
established by the IRS and the law in collecting taxes. For the most
part, taxpayers are intimidated by the IRS and will do whatever is
asked of them. Because most taxpayers do not know much about tax law
they rely on the IRS with respect to many issues and put their trust
in them as public servants. Even if the taxpayer feels the IRS is
not acting properly it is often too costly to hire representation to
contest the action. The end result is that some taxpayers are paying
more tax than they rightfully should and some individuals are paying
tax which they are not actually liable to pay. I do believe that if
a taxpayer presses an issue and takes it up through the system, and
if that taxpayer is right, he or she will ultimately prevail. It's
just that the process is costly in terms of fees, time and
aggravation. It is important for the IRS to avoid procedural
shortcuts and treat the taxpayers fairly up front, so that mistakes
are not made and taxpayers are not put in the position of choosing
whether to pay the wrong amount of tax or pay for assistance to
fight it out. Either way the taxpayer loses.
As an organization, the IRS has excellent technical resources
which it does not use to its best advantage. Tax collection is a
complex process given the number of applicable federal and state
statutes. Revenue officers can be expected to require assistance in
some cases. The Special Procedures function is designed to provide
technical assistance to the tax collectors in the field, and in
those districts where it is given the staffing and finding it needs,
it has proven to be very valuable. However, each district is given
the discretion to determine how its own Special Procedures will be
staffed and how it will operate. In some districts, Special
Procedures is under-achieving because the advisors have little
experience and little support. Some districts view Special
Procedures as a dumping ground for revenue officers and even
managers who have had problems elsewhere. Some districts view
Special Procedures as less important than the field groups so they
rotate revenue officers in for only 18 months at a time.
Consequently there is little institutional expertise. New advisors
have nobody to train them. The field revenue officers have little
confidence in their advisors. On the other hand, the districts with
excellent Special Procedures have advisors who have worked in their
program areas for many years, they work well together and learn from
each other, and they are respected by the field officers. They
maintain close communication with the field and provide effective
assistance. The excellent Special Procedures staffs typically have
close working relationships with District Counsel and have programs
which allow them to stay current on developing issues. The IRS would
be well served by requiring all districts to step up the level of
the Special Procedures staffs so that the IRS, nationwide, can more
effectively and justly collect the taxes owed.
In conclusion, the IRS in my view has much room for improvement
in the way it deals with taxpayers when collecting delinquent
accounts. While there are many positive, productive forces and
individuals at work inside the organization constantly trying to
make improvements, some of the chronic problems remain. The IRS is
there to enforce the tax laws. However, the IRS is also there to
ensure that the law is applied fairly and consistently. The IRS
representatives wear two hats: they are adversaries of the willfully
non-compliant taxpayer, but they are at the same time public
servants. There is no excuse for cutting procedural corners or
establishing presumptions which place citizens at a practical or
economic disadvantage. Better training of revenue officers, as well
as managers, and an intolerance of blatant violations of the law
would go a long way toward improving the overall quality of tax
collection and improving the level of public trust in the IRS.