Church Tax Inquiries Starting Up Again (without final regs)

Over the summer the Freedom from Religion Foundation announced that it had agreed to the dismissal (without prejudice) of its lawsuit against the IRS alleging that the IRS had filaed to enforce against churches the prohibition on political campaign intervention.  See previous post regarding the 2013 rejection of the IRS’ motion to dismiss this case for more details.  What is most dramatic about this development is the letter from the IRS to the DOJ attached to the Foundation’s Memorandum in Support of Motion to Dismiss detailing the current audit activity relating to churches.  Here is the substance of that letter:

1. Subsequent to the publication of proposed regulations on section 7611 of the Internal Revenue Code on August 5, 2009, the IRS has processed several cases involving churches using procedures designed to ensure that the protections afforded to churches by the Church Audit Procedures Act are adhered to in all enforcement interaction between the IRS and churches. The procedures require the reasonable belief determination under section 7611(a) to be made by the Commissioner, TEGE, either directly or as concurrence to the determination made by the Director, Exempt Organizations.

2. Our written procedures for our Dual Track process for information items (a.k.a. referrals) alleging violation of the political intervention prohibition of section 501(c)(3) require evaluation of the information item by our Review of Operations (“ROD”) unit and then the Political Activities Referral Committee (“PARC”). With regard to these referrals that concern violations by churches, the PARC has determined that as of June 23, 2014, 99 churches merit a high priority examination. Of these 99 churches, the number of churches alleged to have violated the prohibition during 2010 is 15, during 2011 is 18, during 2012 is 65, and during 2013 is one.

This comes after an apparent hiaitus in such activity, as detailed in a previous post.  What is perhaps most surprising is that it has come without the finalization of the proposed regulations referenced in the above letter regarding exactly who, within the IRS, has sufficient authority to sign off on church tax inquiries and, if justified, church examinations.  

While an intervenor represented by the Becket Fund for Religious Liberty sought to prevent the dismissal, according to the Becket Fund the court ultimately granted the requested dismissal.

Media Coverage:  Christianity TodayWashington Times.

Lloyd Mayer