FACT CHECK - Independent IRS?

"IRS Not So ‘Independent’" by D’Angelo Gore, FactCheck.org 5/16/2013

The Internal Revenue Service is not exactly an “independent agency,” as President Obama claimed during a May 13 press conference.  In fact, it is a bureau of the Treasury Department, an executive agency within the federal government.  And it is the president who nominates the head or chief executive of the IRS, and who has the authority to remove the individual in that post at his or her will.

Obama spoke of the agency’s supposed independence as he responded to questions about the IRS’ admission that it investigated conservative political groups enjoying tax-exempt status during the 2012 election cycle.

Obama, May 13:  If, in fact, IRS personnel engaged in the kind of practices that had been reported on and were intentionally targeting conservative groups, then that’s outrageous and there’s no place for it.  And they have to be held fully accountable, because the IRS as an independent agency requires absolute integrity, and people have to have confidence that they’re applying it in a non-partisan way — applying the laws in a non-partisan way.

Jay Carney, the White House press secretary, had previously called the IRS “an independent enforcement agency with only two political appointees,” during a press briefing on May 10.  But as the New York Times and the Wall Street Journal have both pointed out, the IRS is not a completely “independent agency.”

Not even the USA.gov Web page on “Independent Agencies and Government Corporations” lists the IRS.  And that’s the site to which the White House’s own Web page on “Federal Agencies & Commissions” directs visitors.

The Commissioner of Internal Revenue heads the IRS and is nominated by the president and confirmed by the Senate.  And, in its own words, the IRS says that it was “organized to carry out the responsibilities of the secretary of the Treasury under section 7801 of the Internal Revenue Code.”  Plus, the commissioner reports to the secretary of the Treasury via the deputy secretary.

At least one way that federal law attempts to remove partisanship from the IRS is through the use of five-year terms for its commissioner that overlap the four-year presidential election cycles.  And as Carney indicated, the only other political appointee in the agency besides the commissioner is the IRS chief counsel, who “provides legal guidance and interpretive advice to the IRS, Treasury and to taxpayers.”

The law also prohibits the president, Vice President and members of their executive office staff from requesting “directly or indirectly, any officer or employee of the Internal Revenue Service to conduct or terminate an audit or other investigation of any particular taxpayer with respect to the tax liability of such taxpayer.”

But federal law also says that the IRS commissioner can be removed from the position “at the will of the president.”  That can’t be done to the heads of some other actual “independent” agencies without a reason.

For example, the chairman of the National Labor Relations Board — which is listed on the USA.gov Web page — can “be removed by the President, upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause.”  Likewise, members of the Federal Reserve Board, another independent agency, can only be removed “for cause.”  And the law outlining the organization of the Federal Maritime Commission says that the president may only “remove a Commissioner for inefficiency, neglect of duty, or malfeasance in office.”

Obama proved this very point on May 15, when he said that he had directed Treasury Secretary Jack Lew to review the matter and then Lew requested and accepted the resignation of the acting IRS commissioner, Steve Miller.  It has been reported that Miller was aware of the agency’s targeting of conservative political groups and chose not to disclose it to members of Congress.

Obama added that the administration would “put in place new safeguards to make sure this kind of behavior cannot happen again,” and that the Treasury secretary would “ensure the IRS begins implementing the [Treasury Inspector General for Tax Administration's] recommendations right away.”