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Arnold Ahlert / May 31, 2016

Government-Orchestrated Theft

The IRS has a nasty habit of turning justice on its head.

Two fundamental principles America used to honor were one’s right to be left alone, and the idea that one is innocent until proven guilty. According to the Institute for Justice, from 2005 to 2012, the IRS turned both principles upside down. In more than 2,500 cases, the tax-collecting agency seized an astounding $242.6 million from individuals they accused of money “structuring” violations. In 618 cases from 2007 to 2013, the agency seized $43 million — even when there was no other evidence of criminal activity. “Every American knows that for the IRS to take somebody’s money and to threaten to put them in jail because of how they deposit money in the bank is wrong,” testified Institute for Justice attorney Robert Johnson, during a meeting of the House Ways and Means Committee last week. “It’s not how our country should work.”

That’s putting it mildly.

Most structuring cases are tied to a 1970 law called the Bank Secrecy Act, that created structuring and civil forfeiture laws ostensibly enacted to combat large-scale drug dealing and money laundering. Yet there is a damned if one does, damned if one doesn’t aspect to them that is quite disturbing. The law requires banks to report to the government any deposits, withdrawals or transfers of more than $10,000, essentially an invasion of privacy in search of malfeasance. Yet if one decides to make deposits below that threshold, and the financial institution suspects one of doing so to avoid such scrutiny, they are also required to report it. And absent any other indication of criminal activity, if the government decides one is guilty of structuring, one can be charged with a felony punishable by a fine and/or up to five years in prison.

It gets worse. Even as banks are required to report suspicious activity to the feds, they are prohibited from letting the customer know they are doing so. Moreover, banks deemed to have insufficiently scrutinized those customers can be financially sanctioned, and bank employees determined to have neglected their duty in that regard can also be criminally charged and sent to jail.

The inevitable result? “There’s lots of risk in under-policing for structuring, and virtually no risk of losing customers due to a policy of over-reporting them to the government,” writes columnist Radley Balko. “Most customers will never know. The problem of course is that when you force banks to cast such a wide net, they’re going to report a lot of people who have done nothing wrong.”

That’s exactly what has happened to a number of innocent victims. In 2012, two armed IRS agents informed dairy farmer Randy Sowers that the IRS had seized $60,000 from his bank account because of structuring. The owners of Vocatura’s Bakery, a family-owned and operated business started in 1919, were accused of the same crime and the IRS seized $68,382.22. Lyndon McLellan, owner of L&M Convenience Mart, had $107,702.66 seized from his business’s bank account.

The agency also helped itself to almost $33,000 from the checking account of Carole Hinders, owner of a cash-only Mexican restaurant she has operated for nearly 40 years. “How can this happen?” Ms. Hinders asked. “Who takes your money before they prove that you’ve done anything wrong with it?”

Government-sanctioned shakedown artists, that’s who.

Even more infuriating, when the IRS discovers no crime was committed, those whose funds were seized have to fight to get them back. The IRS gave $33,436 back to Sowers and kept $29,500. They offered McLellan 50% of his money back if he agreed to a settlement before March 30. And after seizing $447,000 from Bi-County Distributors in 2012, the IRS didn’t agree to return the money until January 2015 — after attempting to settle with the company by taking $275,000, then $200,000, and finally $50,000 of the total amount before ultimately caving.

That particular gambit was orchestrated by the office of the U.S. Attorney for the Eastern District of New York — run by then-U.S. Attorney Loretta Lynch. In 2014, The Wall Street Journal called Lynch’s office a “major forfeiture operation.”

Why would an innocent victim settle? Because the alternative could be years of litigation and attorney fees. “In criminal cases, defendants are innocent until proven guilty. Civil forfeiture cases flip this basic legal tenet on its head,” said Jason Snead, research associate at The Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies.

Prior to last Wednesday’s hearing, Committee chairman Rep. Peter Roskam (R-IL) put this outrage in the proper perspective, saying, “It’s so clear on its face: this is an abuse of power.” He further reminded Americans these actions are taking place within “the larger context of IRS targeting based on political philosophy and religious beliefs,” and the public’s concern regarding whether government is watching out for them — or coming after them.

Over the last two years, the IRS and Justice Department altered their internal policies regarding structuring, ostensibly pursuing structuring cases only where the funds involved arise from criminal activity.

Nonetheless, Roskam emphasized government’s “dismissiveness,” highlighted by the fact that, despite Committee members from both parties twice sending letters to the IRS, the Treasury and the Justice Department urging them to return “inappropriately” seized funds, government remains obdurate. “They’re not seeing an obligation to go and make things right,” Roskam explained. “Their feeling, at least what they’re communicating so far, is that was then, this is now, and if someone suffered, then someone suffered.”

IRS Commissioner John Koskinen apologized to the victims and insisted that “as of a year ago there are no more seizures by the IRS and I think that’s important to know that we’ve reached out to do that.”

Yet Johnson insists the IRS is still harassing small business owners, and many of those who were previously harassed and found innocent still haven’t gotten their money back.

Who to believe? Johnson works for an organization standing up for people who’ve had their lives needlessly upended by government. Koskinen is an arrogant government bureaucrat facing congressional impeachment for allegedly failing to comply with a subpoena requiring him to preserve documents related to the IRS Tea Party targeting scandal, and lying about erased backup tapes containing copies of disgraced former IRS employee Lois Lerner’s emails.

Perhaps it won’t matter. Congress is considering the Clyde-Hirsch-Sowers Respect Act, named after victims of this abuse. The “novel” idea behind the bill? Prohibiting the IRS from punishing those who haven’t committed any crimes. That such a bill is necessary should tell Americans all they need to know about the tenuously thin divide between constitutional governance and banana republic lawlessness.

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