IG Report Says IRS Has No Idea What Its Own Rules Mean

| Tue May 14, 2013 9:56 PM EDT

The Inspector General's report on the targeting of tea party groups by the IRS is now out, and I was hoping there might be some interesting tidbits now that we can see the whole thing. Not really, though. Mainly, it paints a drearily predictable picture of bureaucratic FUBARism, with various groups in various places either misunderstanding each other; not responding to each other; or assuming that stuff was getting done that, in fact, wasn't getting done. Anyone who reads Dilbert regularly gets the picture.

But the soporific paragraph below actually tells us something pretty important. In fact, it's the heart of the whole issue:

In April 2012, the Senior Technical Advisor to the Acting Commissioner, Tax Exempt and Government Entities Division, along with a team of EO function Headquarters office employees, reviewed many of the potential political cases and determined that there appeared to be some confusion by Determinations Unit specialists and applicants on what activities are allowed by I.R.C. § 501(c)(4) organizations. We believe this could be due to the lack of specific guidance on how to determine the “primary activity” of an I.R.C. § 501(c)(4) organization. Treasury Regulations state that I.R.C. § 501(c)(4) organizations should have social welfare as their “primary activity”; however, the regulations do not define how to measure whether social welfare is an organization’s “primary activity.”

Did you get that? IRS regs say that 501(c)4 groups can't primarily be engaged in political activity. Instead, their "primary activity" has to be social welfare. To call this vague would be a disservice to mirages and chimeras everywhere. How the hell are actual human beings sitting in cubicles in Cincinnati supposed to decide whether a group is planning to spend more than 50 percent of its time engaged in something other than social welfare? For that matter, how are they supposed to decide what "social welfare" is in the first place?

The IG report recognizes this, and Recommendation 8 in its audit is that this really needs to get resolved at a policy level, not a line level:

Recommend to IRS Chief Counsel and the Department of the Treasury that guidance on how to measure the “primary activity” of I.R.C. § 501(c)(4) social welfare organizations be included for consideration in the Department of the Treasury Priority Guidance Plan.

Good luck with that! Frankly, I think it's a mug's game. There's really no way to define this in any kind of rigorous way, and even if you could, how would you apply it to organizations that are merely applying for 501(c)4 status? In the wake of Citizens United, this whole section of the Internal Revenue Code is a definitional witch's brew that admits of no sensible resolution. If we had a functioning Congress, I'd suggest that they should address this from the ground up and provide a set of guidelines that makes sense in the modern world. But I don't suppose that's very likely, is it?

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