Originally published on Forbes.com.
I never thought that there was any legal question about the authority of IRS criminal investigators to be armed. There are quite a few specialized federal law enforcement organizations. Their officers have arrest powers, which, at least in this country, implies that they might be needing to pack heat. When I looked into it further, though, there appears to be an issue.
The $11 Million Excitement
A few days ago I wrote something on the recent controversy about whether the IRS is spending too much on weapons and ammunition. The figure that has been floating around the internet is $11 million. That number traces to a report on the “militarization of America”. My conclusion was that the reports have been a bit sensationalized as the $11 million is over a period of nine years and includes equipment other than weapons and ammunition. I had a bit of a struggle trying to figure out how much might be reasonable. The IRS has a force of criminal investigators. Numbers have been declining,due to budget constraints. It stands now at around 2,300. They have to remain proficient requiring a considerable expenditure on ammunition.
I was hoping that my comment section would be full of observations by gun enthusiasts on how many rounds you need to fire at the range in order to stay proficient. I found that there is a wide variety of opinions about that. For my back of the envelope computation, I pulled something out of a GAO report which indicated that border patrol agents need about 600 rounds a year once they are past initial training.
Should Anybody With IRS Be Armed?
Instead, the comments were about why the IRS has any weapons at all. One commenter stated that there is no authority for IRS officers to carry weapons and challenged me to find it. Well, that’s the type of thing that I am good at, so I thought it would be easy to dispose of. What I found was a little troubling.
A Statutory Puzzle
Code Section 7608 concerns the authority of internal revenue enforcement officers. The enumerated powers include executing search and arrest warrants, making arrests without warrant in some circumstances and seizing property. The section defines two groups of officers. 7608(a) is about officers charged with enforcing Subtitle E of the Internal Revenue Code. Subtitle E covers taxes on alcohol, tobacco, firearms and a few other things. 7608(a) besides the arrest and search and seizure powers includes a specific authorization to carry firearms.
7608(b), which was added in 1962, concerns officers of the Intelligence Division of the IRS (since renamed Criminal Investigation). They get the arrest and search and seizure powers, but no explicit authorization to carry firearms. The Internal Revenue Manual addresses the matter as follows:
There is no specific statutory authority for special agents to carry firearms. The General Counsel, Department of the Treasury, has concluded that no specific authority is necessary because ” where a Federal officer has authority to make an arrest, he/she has implied authority to carry firearms” . Authority for special agents to make arrests is contained in 26 USC §7608(b)
And A Tax Protester Notices
This matter ended up being litigated in 2014 and the answer from the court was not as satisfactory as you might hope. Charles Adams was a pretty hard-core tax protester running a payroll service that helped others avoid paying taxes, which he believed are wrong. In appealing his conviction to the First Circuit he argued that the results of a search carried out on his premises should be thrown out. The reason he saw invalidating the search was that the CI agents carrying it out were armed.
His argument was that 7608 implicitly prohibits agents working income tax cases from being armed. I have to say that looking at the statute, he seems to have a point. 7608(a) and 7608(b) are practically identical in the powers that they enumerate except for carrying firearms.
The Court Punts
The district court had dodged the question of whether the agents were in violation of 7608, by holding that even if they were, evidence suppression would not be called for.
In the end, the court elected to detour around the statutory construction question. Instead, the court assumed a statutory violation but held that suppression was not an appropriate remedy. This prudential approach makes eminently good sense: as we recently wrote, “iscretion is often the better part of valor, and courts should not rush to decide unsettled legal issues that can easily be avoided.” Thus, we too assume without deciding that the agents who executed the search of the defendant’s home violated 26 U.S.C. § 7608 because they were armed. ………….
Whatever intrusion may have occurred was not of constitutional dimension. While the defendant assuredly had a constitutionally protected privacy interest in his home, see, e.g., Georgia v. Randolph, 547 U.S. 103, 115 (2006); Payton v. New York, 445 U.S. 573, 585–86 (1980), that interest is protected in the first instance by the warrant requirement of the Fourth Amendment — a requirement that was fully satisfied in this case. The defendant has not challenged the validity of the warrant, and the warrant authorized the agents to enter the home and conduct the search.
We add, moreover, that the fact that the agents were armed had no impact either on the scope of the search or on the extent of the evidence collected. Indeed, the record here does not show the slightest connection between the alleged statutory violation and the avails of the search. So viewed, the supposed violation was not a but-for cause of procuring the evidence. The Constitution was not implicated and suppression was, therefore, unwarranted. (Emphasis added. Citations omitted.)
Kind of frustrating. An apparent contradiction between practice and the Code has been around for half a century and the first time it comes before a court, the court punts. On the other hand, that is what the court is supposed to do. The agents did have the statutory authority to do the search, so their being armed was immaterial to the evidence gathered.
By the way, the principle of statutory construction that supports the taxpayer’s argument is known as “expressio unius est exclusio alterius”. Don’t you love Latin?
How Much Does It Matter?
Frankly why people get excited about this is a little bit of a mystery. If we are going to have tax laws, they need to be ultimately backed up by criminal penalties. Otherwise, instead of taxes, we would have suggested contributions. This implies that you will need some police who understand the tax laws. This being America where citizens can be armed, it is reasonable for the police to be armed. So if the IRS did not have a team of criminal investigators we would need either the Marshalls or the FBI to have a tax division.
I had to write about the statutory problem because when I promise to look into something, I look into it. The Adams decision caused a bit of a splash in the tax blogospshere when it came out including attempts to connect it to the interminable IRS scandal. There really is not any connection. There does not appear to be anything new on the Adams decision since 2014. Going out on a limb here, I think it is unlikely that anyone will be able to get standing to challenge the Treasury interpretation that CI agents can be armed even when not dealing with Subtitle E. The only exception might be somebody that they actually shoot, which is, thankfully, an extremely rare occurrence.