Tax Analysts®Tax Analysts®

My Subscriptions:

Featured News

March 6, 2015
TIGTA: Missing Lerner E-Mails Could Involve Criminal Activity
by Fred Stokeld

Full Text Published by Tax Analysts®

This article first appeared in the March 2, 2015 edition of Tax Notes Today.

The disappearance of e-mails of former IRS official Lois Lerner could involve criminal activity, an official with the Treasury Inspector General for Tax Administration told the House Oversight and Government Reform Committee at an evening hearing February 26.

In response to a question from committee Chair Jason Chaffetz, R-Utah, TIGTA Deputy Inspector General for Investigations Timothy P. Camus said the inspector general was looking into whether there was any criminal activity involving the missing e-mails, adding later that "there is potential criminal activity." When committee member Trey Gowdy, R-S.C., asked if there are potential criminal statutes at play, Camus said, "Yes, there could be."

The events at the hearing prompted the IRS to issue a statement February 27 reiterating the agency's cooperation with TIGTA's investigations into the exemption applications controversy and related e-mail losses. Overall, the IRS has provided more than 1.1 million pages of documents to congressional committees as part of the investigation into the controversy, it said.

Camus made his statement about potential criminality after describing in detail TIGTA's efforts to recover the e-mails, which the IRS has said were lost when Lerner's computer hard drive crashed in 2011. Lerner was director of exempt organizations in the IRS Tax-Exempt and Government Entities Division when the agency selected the exemption applications of conservative organizations for additional scrutiny.

According to Camus, TIGTA, using backup tapes, has identified almost 80,000 Lerner e-mails, about 60 percent of which are duplicates. The rest -- 32,774 -- are unique, he explained, adding that TIGTA is preparing to compare the unique e-mails with the e-mails and documents the IRS already has given Congress to determine if there are any newly identified e-mails. TIGTA is also analyzing the e-mail server hard drives to find out if they could yield any readable e-mails and is determining whether there are other sources that may contain Lerner e-mails, he said.

Republicans on the panel appeared incredulous that TIGTA was able to recover e-mails, after about a two-week effort, but the IRS was not. They criticized the Service upon hearing from Camus that it made no effort to obtain backup tapes from its Martinsburg, West Virginia, computing center, as TIGTA did.

"We sent a subpoena, we sent letters, we've had hearings, we hear all kinds of excuses from the IRS: They're recycled, they've been destroyed, they're not available," Chaffetz told Camus. "You find them in two weeks, and then when you go talk to the IT people who are in charge of them, they told you that they were never even asked for them."

Chaffetz also blasted IRS Commissioner John Koskinen for having previously told Congress that backup tapes from 2011 no longer existed and that the Lerner e-mails were unrecoverable. "We have repeatedly had the commissioner of the IRS come here and tell us a whole variety of stories that, based on the testimony we hear today . . . ain't true," he said. Committee member John L. Mica, R-Fla., said "it looks like we've been lied to or at least misled," while committee member Mark Meadows, R-N.C., suggested the title of the hearing should be "Congress Was Misled About Backup Tapes."

In its February 27 statement, the IRS explained that in late June 2014, after the Senate Finance Committee asked TIGTA to look into the hard drive crash and related issues, the Service turned the entire process over to TIGTA, including any reviews of disaster recovery tapes, so that there would be no interference from the agency.

Altogether, the IRS has provided approximately 147,000 unique e-mails to congressional committees after eliminating duplicates, according to the statement. The total includes 78,000 e-mails involving Lerner, including the more than 24,000 e-mails sent during the period affected by the hard drive crash.

The Oversight Committee's ranking minority member, Elijah E. Cummings, D-Md., said he thought the hearing was premature because TIGTA's probe of the lost e-mails is not yet complete. He said Lerner's computer crashed before she learned IRS employees were using inappropriate criteria to screen conservative applicants and that when she did become aware of it, she immediately ordered the criteria to be changed. Also, TIGTA has uncovered no evidence that the White House was behind the targeting or that Lerner crashed her computer on purpose, Cummings said.

Inspector General J. Russell George, who appeared with Camus, faced blistering criticism from committee members Gerald E. Connolly, D-Va., and Matt Cartwright, D-Pa., who said the inspector general has not conducted the targeting investigation in a bipartisan manner. They complained, for example, that Democratic committee members and staff had been excluded from George's meetings with committee Republicans and that George had not responded adequately to allegations that progressive groups were also singled out by the IRS for extra attention.

In response, George said he has no control over who attends meetings he has with committee members. He also said he has practiced bipartisanship throughout his entire career.

Both George and Camus emphasized that the investigation into the missing e-mails is not complete and that facts may change as investigators perform further analysis and conduct more interviews. "We have not reached any conclusions," George said.

The IRS statement said that any new e-mails TIGTA finds "will be a net gain and [will] give everyone greater insight into the activities of the IRS during the period covered by the congressional investigations." The IRS added, "This is consistent with the IRS efforts to produce Lerner e-mails from other IRS employees during the period of time affected by the Lerner hard-drive crash."

About Tax Analysts

Tax Analysts is an influential provider of tax news and analysis for the global community. Over 150,000 tax professionals in law and accounting firms, corporations, and government agencies rely on Tax Analysts' federal, state, and international content daily. Key products include Tax Notes, Tax Notes Today, State Tax Notes, State Tax Today, Tax Notes International, and Worldwide Tax Daily. Founded in 1970 as a nonprofit organization, Tax Analysts has the industry's largest tax-dedicated correspondent staff, with more than 250 domestic and international correspondents. For more information, visit our home page.

For reprint permission or other information, contact