Accounting / Accountants, Federal Government, Politics, Tax Law

On The IRS Mess And What It Means To Be A Lawyer

“In four minutes, it would be another hour; a half hour after that was the ten-minute break. Lane Dean imagined himself running around on the break, waving his arms and shouting gibberish and holding ten cigarettes at once in his mouth, like a panpipe. Year after year, a face the same color as your desk. Lord Jesus. Coffee wasn’t allowed because of spills on the files, but on the break he’d have a big cup of coffee in each hand while he pictured himself running around the outside grounds, shouting. He knew what he’d really do on the break was sit facing the wall clock in the lounge and, despite prayers and effort, count the seconds tick off until he had to come back and do this again. And again and again and again.”

David Foster Wallace, The Pale King (affiliate link)

Yesterday, the New York Times ran a longish piece on just what in the hell was happening at the IRS office in Cincinnati. A Kafkaesque tale of bureaucratic intrigue, the treatment does little to tell us why in the hell we care just what in the hell was happening at the IRS office in Cincinnati. I’ll leave that determination to the qualified pundits and their punditry.

But what the Times article does do is shine a light on what it means to be a lawyer. What it means to others and what it means to us. Completely by accident, the mess at the IRS tells us how important lawyers are. And how impotent we are. This makes little sense even as I type it. But bear with me. Please. It is not often that meaning comes so nicely gift-wrapped.

What does it mean to be a lawyer?

The Times piece pulls the curtain back on a world not unlike the one I inhabit each day. I’m a lawyer for a government agency — not the IRS, but one of equally opaque animating purpose. Each day is a small nightmare, as processes irrepressibly move forward without any sort of reason attached. Bureaucracies are machines. And working inside a machine can be a horrifying experience.

The IRS workers, as sketched by the Times, are an overworked and confused bunch. Their decisions about Tea Party groups and tax exemptions are not described as motivated by anything more than a strange admixture of caution and the need to do something, anything. We know now that the “something” settled on was a politically toxic combination of invasive questionnaires and biased foot-dragging.

On one level, lawyers get off easy in the Times article. Our collective absence led to this:

Administering the nearly four-million-word federal tax code involves so many arcane legalities, and is so fraught with potential to ignite Washington’s partisan skirmishes or infuriate taxpayers, that much of the I.R.S. is run by lawyers.

But the Exempt Organizations Division — concentrated in Cincinnati with fewer than 200 workers, according to I.R.S. officials — is staffed mostly with accountants, clerks and civil servants. Working for one of only three I.R.S. divisions not charged with collecting tax revenue, specialists in the Determinations Unit in Cincinnati primarily review and process roughly 70,000 applications for exemptions each year, relatively few from groups engaged in election activity.

In case you were wondering if there was anything worse than being an attorney in Cincinnati, here’s your answer: being an accountant in Cincinnati.

Reading this, I never felt so proud of my profession. The scandal could go on and on, transmogrifying into the next Watergate for all I care, but lawyers were not the culprits. It was those other pencil-pushing creeps who caused what is sure to become the hottest constitutional crisis since Vince Foster’s death. The second thing we do, let’s kill all the accountants, amirite????

My short-lived euphoria was short-lived. A few paragraphs down the page, we learn our profession’s role in all of this. There are no heroes in this story:

One manager there complained that the “technical unit” — lawyers, chiefly in Washington, who advise the specialists on the tax law — had been slow in providing guidance on the applications, according to the inspector general. Over the next several months, the inspector general said, low-level specialists, managers and the lawyers appeared to struggle to come up with a consistent set of criteria and questions to ask the groups.

Philip Hackney, who was an I.R.S. lawyer in Washington, occasionally reviewed the exempt unit’s work until 2011 and was not involved in the Tea Party cases. He said that several times he and other lawyers revised the procedures the Cincinnati employees devised to scrutinize applicants because their questions might be interpreted as intrusive or politically insensitive.

“We’re talking about an office overwhelmed by 60,000 paper applications trying to find efficient means of dealing with that,” said Mr. Hackney, who is now a law professor at Louisiana State University. “There were times where they came up with shortcuts that were efficient but didn’t take into consideration the public perception.”

When I want efficiency, I’ll consult an engineer or an economist. Not a lawyer. Lawyers are best left to…

And that’s what jumps out from this reporting by the Times: a truly elliptical view of what a lawyer does and is. The article hints at a need for attorneys at the Cincinnati office. Those poor clerks and accountants, without guidance from above. You can almost hear some geek cry out, “WHAT DOES THE LAW SAY?????” To which the attorneys reply, *shrug*.

Of course, the law says nothing at all. Unless you count the jabberings of a largely mute imbecile as instructive, the tax code in the instant case won’t talk to you and tell you exactly what to do. And the piece does a good job of explaining how the law (whatever that means) and the courts have gotten us here. But it only hints at what a lawyer could do in this situation. Presumably, lawyers could have fixed things. The Cincinnati office, bereft of our special expertise, was adrift. Rogue accountants did whatever their legally ignorant minds could concoct.

But then… lawyers were consulted. The IRS was littered with attorneys. And those attorneys either ignored the Cincinnati office’s entreaties or actually “revised the procedures.” Lawyers’ fingerprints are all over this body, it seems.

So there is a certain tension in the story of the IRS office in Cincinnati. That office needed lawyers. It needed them badly. And yet, the lawyerly help they received was apparently inadequate. If I may, allow me to advance a theory about why this tension exists.

There is a fundamental confusion about what a lawyer is. This confusion stems from an understandable ignorance about how any profession really operates. I mean, what do bus drivers really do? But it also is a useful con that all sorts of lawyers encourage. To put a spin on an old chestnut, the greatest trick the lawyer ever pulled was convincing the world Google didn’t exist.

Lawyers are two things: researchers and cowards. Most of us hold no specialized knowledge and can only tell you that everything you do is potentially dangerous. Like, seriously don’t do that. Until I look it up. And even then, you probably shouldn’t do that. My advice is to not do that.

To paraphrase William F. Buckley, a lawyer stands athwart whatever he can stand athwart and yells stop. Preferably via privileged memorandum.

And so we circle back around to the IRS and their… problems. What could lawyers have done better here? Could they have made sense of a law that, by all accounts, does not provide clarity? Could they have ground the machinery of the bureaucracy to a halt, throwing their bodies upon the gears and upon the wheels… upon the levers, upon all the apparatus, and made it stop? Maybe?

If they could, nothing in their very being as lawyers would have led them to such a saving grace. Lawyers are imbued with no special qualification for management or unique insight. There are special cases that make a mockery of my denigration, no doubt. But special people exist in every profession. Even bus drivers! As attorneys, all we can do is continue to insist that people are judicious in their choice of words. That words have meaning. This is a banal platitude, of course, but borrowing from the author who began this post, “in the day-to-day trenches of adult existence, banal platitudes can have life-or-death importance.”

Confusion and Staff Troubles Rife at I.R.S. Office in Ohio [New York Times]

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