Originally published on Forbes.com Oct 27th, 2014
So in my in-box I find some concerned conservative consonance. Jenny Beth Martin of Tea Party Patriots Inc is dismayed, disappointed, and disheartenedAll this dissing is the result of the decision in the District Court for The District of Columbia in True The Vote v IRS. Judge Reggie B. Walton who rendered the decision was nominated by President Bush II in 2001. Judge Walton was also the Chair of the National Prison Rape Elimination Commission, which gives him a warm place in my heart.
It is worth noting that this is the second time this month that a judge nominated by a Republican president has disappointed those promoting the scandal narrative Judge James Cacheris ruled that the National Organization for Marriage could not collect attorney fees relative to its suit against the IRS. In May, the administration had a setback in a scandal case brought by Z Street which concerned IRS having a special Israel policy for exempt organizations. The ruling against the IRS was handed down by Judge Ketanji Brown Jackson, who was nominated by President Obama in 2012. Go figure.
The Decision
The decision is very lawyerly. True The Vote was applying for exemption under 501(c)(3), which, probably because it allows for tax deductible contributions, is even more restrictive of political activity than the 501(c)(4) status sought by many of the Tea Party groups, including the self anointed flagship of the movement Ms. Martin’s Tea Party Patriots Inc. The process dragged, which TTV attributed to targeting because of its apparent association with the Tea Party. It is worth noting, that since TTV was applying for 501(c)(3) status it had a venue to challenge the IRS foot dragging in the Tax Court. I’m still puzzled as to why none of the affected groups ever took that course. TTV was granted exempt status in 2013 which the IRS argues makes three of the counts moot.
Here is where it gets lawyerly. TTV wanted to invoke the “volunatry cessation exception to the mootness doctrine”. The idea is that even though the IRS has backed off by granting the exemption, it still might get back to its old tricks, after the judge is no longer looking over its shoulder. TTV expressed concern that the IRS might select them for audit in the future based on inappropriate criteria. The Court found that to be too speculative.
TTV was also seeking money damages from several IRS employees involved in the application process. Citing other cases the Court noted that it is unnecessary to have a court created remedy since Congress has created a specific remedy for challenges to rulings on tax exemption. That is TTV could have gone to Tax Court to complain about its ruling being delayed or if it had been denied.
The other complaint that the Court dismissed is kind of convoluted. The statute that they were citing is about inappropriately inspecting tax return information, but the complaint was about the agents asking unnecessary questions.
The Reaction From The Tea Party
Jenny Beth Martin is, as noted, not happy.
It is wholly unacceptable simply to accept the IRS’s hollow promises as “remedial measures” in the eyes of the law. When the IRS demands to know the content of people’s prayers, among other outrageous misconduct we have now learned the IRS engaged in during its persecution of tea party groups, a line has been crossed. Forgive us for not taking the Obama Administration at its word when it says it won’t happen again, which is what the Court has asked us to believe.
When it comes to Tea Party Patriots Inc, I’m thinking that they are going with a good offense being the best defense. By keeping up the persecution narrative they are probably insulating themselves from having their political activity affect their exempt status. Here are excerpts from a couple of the emails I have gotten from Tea Party Patriots Inc, the 501(c)(4) organization.
We can’t afford to blow this golden opportunity to politically cripple Barrack Obama and save America We have some very specific grassroots goals that we need to reach over the next two weeks
And then there is there educational efforts on immigration
That makes it even more important that every single voter in America see our new documentary on the border crisis.
Please make a special generous contribution of $15, $25, $35, $50, or whatever you can afford right away to help us publicize and distribute this film.
Just consider this headline from the LA Times:
“In tight Senate races, immigration could still be a priority issue.
Of course I have to be careful not to confuse Tea Party Patriots Inc with the Tea Party Citizens Fund, which is a PAC but works pretty hand in glove with TPP Inc. So when Jenny Beth Martin emails me, sometimes its the PAC like this one
Fellow Patriot,
I’ve been traveling around the country. This is what I’ve learned:
WE ARE IN DEEP TROUBLE.
The Obama Democrats are overwhelming conservatives in Iowa, North Carolina, New Hampshire, and Arkansas. The liberals have more money and TV ads than you can imagine.
If Tea Party volunteers like the ones in this photo don’t have the resources they need . . .
I have to look closely to not think that I am getting a political message from TPP Inc.
Remember the issue that the IRS was grappling with that created this mess was whether organizations were actually political organizations that do not qualify under either 501(c)(3) or 501(c)(4). Apparently asking that question when it relates to Ms. Martin’s group borders on the satanic.
The Solution
Tea Party Patriots is pushing repeal of the 16th Amendment. Although there is not a consensus on what we would have for a federal tax system after that, the leading horse in the race at the moment seems to be the so called Fair Tax, a national sales tax. Ironically the legislation for the Fair Tax indicates that as a secondary aid in statutory construction the sales tax administering authority would consider the “meaning and construction of concepts and terms used in the Internal Revenue Code of 1986” making the 70,000 pages, that you hear people complaining about still relevant. Even better Section 706 of the Act provides for exemptions for not-for-profit organizations which apply for a certificate issued by the “sales tax administering authority”. So in the conservative promised land, the same “scandal” could be replayed. Go figure.