IRS Updates Contingency Plan

Frequent contributor Bob Kamman discusses the IRS’s updated lapsed appropriations contingency plan for the filing season. Les

The first thing to realize about the IRS Filing Season Contingency Plan is that it is already outdated. As the Overview states,

“The IRS Lapse in Appropriations Contingency Plan describes actions and activities for the first five (5) business days following a lapse in appropriations. The plan is updated annually in accordance with guidance from the Office of Management and Budget (OMB) and the Department of Treasury. While we do not anticipate using the plan, prudent management requires that agencies prepare for this contingency.”

Although the cover sheet is dated January 15, 2019, that excerpt from Page 5 is dated January 11, 2019.  Filing season, it states, runs from January 1 through April 30, 2019.  What happens after the first five days?

“In the event the lapse extends beyond five (5) business days, the Deputy Commissioner for Operations Support will direct the IRS Human Capital Officer to reassess ongoing activities and identify necessary adjustments of excepted positions and personnel.”

In lay terms, this is known as “flying by the seat of your pants.”

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The general rule is that all IRS employees must stay home because they are not essential and there is no money to pay them.  (Of course, history tells us that they will be paid when the shutdown ends.)  The exception to the rule is that they must work, without pay, if they fall into one of several “excepted” categories.

Category “A” includes activities that (A1) are already funded, like those related to TCJA implementation and disaster relief; activities (A2)  “authorized by statutes that expressly permit obligations in advance of appropriations; and the catch-all (A3) “authorized by necessary implication from the specific terms of duties that have been imposed on, or of authorities that have been invested in, the agency.”  Until anyone objects, this A3 means what any given lawyer says it means on any given day.

Then there are “excepted” employees (remember, these are the ones who must show up to work) in Category B.  Their jobs are necessary to safeguard human life (see Police Officers, below) and, more often, to protect government property.

To understand this category, note that “tax revenues constitute Government property which the Service must safeguard.”  But not just money is involved:

 “…the Service may continue processing tax returns to ensure the protection of those returns that contain remittances. Activities necessary to protect other types of Government property, including computer data and Federal lands and buildings, may continue during a shutdown as well.”

In fact, not just money, buildings, and computers are at stake.  It is the IRS reputation itself.  The agency must “maintain the integrity of the federal tax collection process.” (This mostly seems to come under A3, not B, for those keeping score at home.)

Finally, there is the “turn out the lights” Category C, for activities that “provided for the orderly termination of those functions that may not continue” during a shutdown.

Those are the rules.  Here are some examples of how they are being applied.

Category A1: This includes “Income Verification Express Service (IVES) and Revenue & Income Verification Service (RAIVS) Photocopy Programs.”  These allow mortgage lenders  to verify taxpayer incomes.  It was recently determined that this was “excepted” work, perhaps because it is funded by user fees.

Category A2: This one is easy.  IRS does not have any.  It just shows up in the report because Treasury needs it for other reports.

Category A3: “Maintaining minimum staff necessary to handle budget matters related to the lapse in appropriations.”  Presumably these employees will have other work to do, when the lapse ends.

Category A3 also includes “Activities necessary for the payment of refunds, including processing electronic returns through issuance of refunds; processing “Paper Refund Tax Returns” through issuance of refunds; and processing “1040X Amended Refund Returns Adjustments including Carrybacks, Amended Returns, Duplicate Filed Returns (DUPF), Correspondence, Injured Spouse Claims, Disaster Claims, F843 Claim for Refund and Request for Abatement in support of issuing refunds.”

Issuing those refunds is necessary, not because they are government property, but because they are part of a system that maintains IRS integrity.

For Category B, there is a long list of activities necessary for the protection of human life or government property.  “The risk to life or property must be near at hand and demand an immediate response. To ensure that employees only perform functions that meet this requirement, each business unit will conduct regular meetings throughout a lapse in appropriations to identify actual imminent threats and activate excepted personnel only as required to perform related excepted activities.”   Here are just some of these examples:

  • Completion and testing of the upcoming Filing Year programs
  • Processing Remittances including Payment Perfection
  •  Responding to taxpayer filing season questions (call sites)
  • Continuing the IRS’ computer operations to prevent the loss of data
  • Protection of statute expiration, bankruptcy, liens and seizure cases
  •  Protecting Federal lands, buildings, and other property owned by the United States
  • Upcoming Tax Year forms design and printing
  • Maintaining criminal law enforcement and undercover operations

(You might find it odd that designing next year’s forms has at least the same priority as criminal law enforcement.  You will agree, however, once you see this year’s forms.)

Those are the activities that are necessary.  Here are some examples of work that is not:

  •  Non-automated collections
  •  Legal counsel
  • Taxpayer services such as responding to taxpayer questions (call sites) (But only during Non-Filing Season.  During Tax Season, they hope to operate.)
  • All audit functions, examination of returns, and processing of non-electronic tax returns that do not include remittances

So let’s not call it a shutdown.  When audit and collection work is suspended, let’s call it a holiday.  Were it not for the staff trying to prevent statute expirations, we could almost call it amnesty.

Here are some details from the latest plan:

Chief Counsel

“Chief Counsel’s primary responsibility during a lapse is to manage pending litigation, the time-sensitive filing of motions, briefs, answers and other pleadings related to the protection of the government’s material interests. Due to Counsel’s separate litigation function, the number of excepted Counsel positions will not align with excepted activities authorized in other IRS business units. Counsel’s plan assumes that the Federal and District Courts will be open, and that litigation will continue uninterrupted. The plan excepts, on an as needed basis, those personnel assigned to litigation that is scheduled for trial or where there is a court-imposed deadline during the first five days of a lapse. Personnel are not generally excepted to perform litigation activities where a trial or other court-imposed deadline is scheduled more than five days after the start of the lapse. Personnel assigned to those cases should seek continuances as part of an orderly shutdown. If a continuance is denied, the case will be reviewed to determine if work on the case may be excepted. . . .

“Chief Counsel personnel are also excepted, on an as needed basis to provide required legal advice necessary to protect statute expiration, and the government’s interest in bankruptcy, lien, and seizure cases.”

Taxpayer Advocate Service

There are now two “excepted” Category B employees allowed in each local office: The local TA, and either a group manager or a “lead case advocate.”  Their jobs are to “Check mail to comply with the IRS’s requirement to open and process checks during a shutdown while also complying with the statutory requirements that TAS maintain confidential and separate communications with taxpayers and that TAS operate independently of any other IRS office . . .Screen the mail for incoming requests for Taxpayer Assistance Orders and notify the appropriate Business Unit that a request has been made tolling any statute of limitations.”

It doesn’t sound like they are allowed to answer the phone or work cases.  Protecting IRS integrity doesn’t extend this far?

Small Business / Self Employed

In this operating division, 2,614 of the 2,938 Category B employees are in Collection and another 264 are in Examination. But wait – what happened to that  holiday?

Most of them are Collection Representatives who “carry out revenue protection activities that include responding to taxpayers who have received a collection notice through the Automated Collection System and clarifying the payment process; assisting taxpayers with setting up installment agreements for tax payments; assist taxpayers with general collection processes; serve as the gateway for transferring taxpayers to Accounts Management for appropriate filing season inquiries;  and provide assistance with releasing levies and liens as required by law.” In other words, you can contact them but they won’t contact you.

Those in Examination “protect statute expiration/assessment activities, bankruptcy or other revenue generating issues.   Open incoming mail to identify documents required to be processed to protect the government’s interest during shutdown. Complete computer operations required to determine necessary actions, prevent data loss and route documents associated with imminent statutes.”

Wage And Investment

These are the workers at 10 Service Centers and 15 call sites,  most of whom are in Category A3.  IRS hopes that 12,961 show up for Submission Processing, and 17,520 show up for Accounts Management, which includes call sites.

From other sources, I find that at least 6,600 of these employees are seasonal.  Would you take a temporary job with IRS in January, with the hope of being paid by April? It might make a difference if you needed to pay for daycare.

How many in W&I “Refundable Credits Policy & Program Management” will work on “Pre-refund case selection to protect improper payments from being released to ineligible taxpayers and perfect refunds to verify the refund is appropriate”?  An army of 51.

Compare that with the 469 needed for the IVES and RAIVS programs.  IVES “provides express return transcript, W-2 transcript, and 1099 transcript delivery services to mortgage lenders and others within the financial community to confirm the income of a borrower during the processing of a loan application. RAIVS services taxpayer request for copy of tax return.”

Online Services

In Category B, 25 employees are needed because “Online Services (OLS) is responsible for the development and continuity of operations for IRS.gov, which is the agency’s exclusive external facing website servicing the public. IRS.gov is the means in which taxpayers may continue to file returns and submit remittances online. OLS anticipates that 9 employees will be needed for the duration of the shutdown to maintain the IRS.gov website.”

Facilities Management

Did you know IRS has Police Officers?  There are nine of them kept on duty who along with 13 Security Specialists and five Safety Officers “support general security services that increase as the IRS population escalates in excepted employees during the Filing Season.   Additionally, security and emergency response actions are influenced by other external activities such as bomb threats, suspicious packages and threats to employees. Situational Awareness Management Center/Threat Incident Reporting is operational 24/7 during a shutdown.”

Leave (Not Brexit) Policy

Finally, current and former IRS employees should find this interesting.  I am not sure it  is how the situation was handled in previous shutdowns, but maybe I am thinking of snow days.

“Managers should advise employees who are scheduled to be on annual, sick, court, or military leave that, if a lapse in appropriations occurs while they are on leave, their leave will be canceled, and they will be placed in a furlough status. According to 5 CFR § 752.402, a furlough means ‘the placing of an employee in a temporary status without duties and pay because of lack of work or funds or other non-disciplinary reasons.’”

Dealing with the Shutdown When You Have an Impending Calendar Call: Take Me Back to 2013

We welcome Professor Caleb Smith who has decided to do something productive at a time when productivity does not seem to be the watchword of our politicians. I wrote a post about Tax Court calendars before and after a government shutdown in the early days of our blog. What happened in 2013 might also give you some perspective on what to expect now when the shutdown ceases. Keith

It probably comes as no shock that, in the midst of the government shutdown the Tax Court did not issue any designated orders during the week of December 31 – January 4. So, because I apparently don’t handle having free-time well, I looked to orders of the past to help with this (not quite unprecedented) period of Tax Court history. In particular, I wanted to look into orders that dealt with government shutdowns.

The last government shutdown (of a lasting duration) was in 2013. (For a list of all the government shutdowns since 1976, check out this helpful PBS post.) The most natural consequence of a shutdown (and the break in communication between parties) is that additional time is needed -either on deadlines that have previously been established (see T.C. Rule 25(c)), or for the trial itself (see T.C. Rule 133). Because I happen to have a calendar call that is still technically set for February 4, 2019 I was more interested in how the Court had previously dealt with motions for continuance for the trial. As noted on the Tax Court website I should learn by January 19 whether the calendar call will actually take place, but I’d rather not wait until then to begin planning.

In my research of motions for a continuance and referenced the government shutdown, I found six orders from three Tax Court judges. Although there are some general requirements to T.C. Rule 133 that any motion for continuance should wrestle with (addressed later), the orders demonstrate more than anything that, in these sorts of discretionary matters, different judges have different preferences. Accordingly, I have broken up the orders by the issuing judge.

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Judicial Approach Number One (Former Judge Kroupa): “Take Two Aspirin and Call Me If You Still Can’t Figure It Out”

The 2013 shutdown lasted 16 days from October 1 to the October 17. The 2013 Salt Lake City trial session was set for November 4. In my experience, the month before trial is set is often the month things actually start getting done, so it is understandable that the parties may not be prepared for trial with the critical period of time effectively cut in half. The IRS appears to say as much in its motion in two separate Salt Lake City cases (Docket 24802-12 and Docket 16322-12): “we haven’t been able to resolve or narrow the issues over the last few weeks because we were locked out of our offices, so please give us more time.”

To this, Judge Kroupa says: “I encourage you to try to settle or narrow the issues for trial. So I’m holding your continuance motion in abeyance until calendar call where you can give an update. And, because I’m serious about encouraging you to settle or narrow the issues, at calendar you will also have to actually discuss the efforts you’ve made to settle or narrow the issues.”

This approach either reflects stubborn optimism or stern stewardship over churning through cases on the Tax Court docket. In either case, the result was the same: for both cases, continuance was granted at trial, and a stipulated decision entered in August of the following year.

Judicial Approach Number Two (Judge Holmes): “Take Two Aspirins and Be Prepared to Submit Status Reports”

The approach taken by Judge Holmes (Docket 10600-12 and Docket 1659-13) was not significantly different from Judge Kroupa’s. Essentially, they each ended in the parties showing up to trial and orally requesting a continuance (which was subsequently granted).

In the Villegas case, the motion for continuance wasn’t even made until the calendar call on October 21, so there really wasn’t much of another option for Judge Holmes. What is striking to me is that Tax Court didn’t cancel the calendar when the shutdown continued within a week of it (as stated earlier, that will likely not be the case this year).

In the other case (Mid City Cannabis Club), the trial was not actually set until January 27, 2014 (i.e. with more time than that “magical final month” still remaining), but the parties were both nervous because, although they may settle, they were confident they wouldn’t be ready for trial. Although Judge Holmes assures the parties that the case will be put on “status-report track” if it doesn’t settle by calendar, he denies the continuance request until then.

 

Again, denying (or holding in abeyance, like Judge Kroupa) a continuance motion until the trial date is perhaps a way to keep parties working diligently towards resolution. But, also again, the ultimate result is generally the same: the Mid City Cannabis case was continued at trial and a stipulated decision was reached in the summer of 2014 (this time July).

Judicial Approach Number Three (Judge Wherry): “Sure, I’ll Grant the Continuance: We’re in Los Angeles All the Time Anyway”

Only the retired Judge Wherry gives the immediate relief (i.e. granting of the continuance motion prior to trial) that the parties requested. Both of the parties (in both of the orders) simply say they need more time because of issues relating to the shutdown, and that appears to be enough.

 

It should be noted, however, that both of the orders (Docket 23698-12, and Docket 145-11), concern cases on the Los Angeles calendar set for December 9, 2013. Of the four cases that Judges Kroupa and Holmes granted continuances for, only one ended up having to go to trial. And that trial took place in… Los Angeles.

Although it goes unstated in the order, the Tax Court simply comes to L.A. more frequently than it does to places like Salt Lake City. Accordingly, by granting a continuance the Court could simply allow the parties to regroup and come back to the table five months later during the May calendar call. Perhaps things would settle by then (as they did in the Moore case, during that “magical” pre-trial month). Or perhaps they would simply have the trial at that later date (as they did in the Coastal Heart Medical Group case). Either way, the efficiency concerns (that the parties will be at loggerheads, and the case sit on the docket for almost another year) don’t present themselves as starkly in the bigger cities as they do in the smaller.

Learning From the Past and Preparing for the Future: Crafting Your Rule 133 Motion

So what can be gleaned from these six orders (four of which come from judges that no longer are on the Tax Court)? In spite of my preliminary take-away (“different tax court judges deal with these things in their own way”) there are some commonalities, and, dare I say, some lessons to be learned from the orders.

Lesson One: Make the judge aware of your need for a continuance in advance of the trial date, rather than just assuming that they will “get it” that you need one because of the shutdown. The fact that (most of) the continuances weren’t automatically granted in the above cases is evidence that the Court expects you to work things out as much as possible even in limited timeframes. Which leads to the second lesson:

Lesson Two: Give reasons why granting the continuance won’t significantly hinder (or may actually help) the efficiency of the court. If both parties were in the process of working out a settlement (that was thwarted primarily because of a breakdown in communications caused by the shutdown) that seems a pretty good reason to give additional time to work things out and may avoid a trial that was never needed. Similarly, it doesn’t do anyone any favors (and makes everyone look bad) to show up for trial when the issues still aren’t well defined. But you have to be prepared to explain why it is the shutdown “caused” these issues to remain ill-defined or the settlement to remain out of reach. Perhaps there were meetings or document exchanges that had to be cancelled and, if only the shutdown wouldn’t have occurred, the case would be much clearer for all involved. Specificity (rather than just saying “we could use more time to define the issues… even though the petition was filed almost a year ago”) is key.

Lesson Three: Provide the court with a plan (specifically, deadlines) to show you will continue to diligently work on the case. The trial date is, in some ways, just a helpful deadline for the Court to keep parties moving towards settlement. If Tax Court isn’t coming to your town again in the near future, asking for continuance may appear to be an indefinite hold on having any accountability. If Tax Court is coming to town again in the not-so-distant future, you may suggest that it be calendared at that date. Of course, since not every location has that luxury, proposing to be put on the “status report track” may be the best you can do. Four of the six cases discussed above settled without needing to go to trial after the continuance was granted. The two that didn’t settle were able to get calendared within roughly half-a-year. If at all possible, you want to be able to demonstrate a similar likely outcome with your case.

Lesson Four: Detail why you are not dilatory in requesting the continuance at this late date. This lesson is less from the orders and more from the rule itself: namely, that a request for a continuance hearing within 30 days of the calendar/trial that it relates to will ordinarily “be deemed dilatory and will be denied unless the ground therefor arose during that period or there was good reason for not making the motion sooner.” The general rule is that the closer to the trial date you make the continuance motion the less likely it is to succeed unless (1) the reason for the motion only just arose, or (2) there is some other good reason for waiting. Of course, if your calendar date is within 30 days of the shutdown you can argue the reason for the motion “arose during that period”, but you will still want to provide other good reasons why it couldn’t be made sooner. One reason may well be logistics: every continuance motion specifically (and every motion generally, see T.C. Rule 50) is supposed to include whether it is objected to or not by the opposing party. At the moment, it is rather hard to get a word from IRS Counsel as to whether they reject, because they aren’t really around.

I could easily go broke betting on when this shutdown will end, but one thing I am confident of is that there is a lot of work piling up for the Tax Court and IRS in the meantime. On return from the shutdown you don’t want to greet the Tax Court judge with a motion that effectively says “let’s keep this case in your (massive) to-do pile because, man, that shutdown was rough.” Rather, try to empathize: “I know you have a lot on your plate, and we’re working to get this case resolved without a trial (or with as orderly a trial as possible). Help us help you by giving us time to do that.” By (1) letting the court know as far in advance as possible of the need for continuance, (2) providing specific reasons why the continuance is in their interest, and (3) drawing up a plan for how to work towards a resolution of the case you demonstrate to the Court that you are doing your part to keep things orderly and efficient.

 

Tax Court Operations During Federal Government Shutdown

The message below is posted on the Tax Court’s web site. The Tax Court was able to operate on a normal schedule after other parts of the government impacted by the government shutdown because it has a reserve of funds from the fees it collects. Even though the court itself shut down yesterday, it will continue to hold trial calendars for the first two weeks of scheduled calendars in January.   The IRS attorneys who represent the government in the cases on those calendars will undoubtedly be deemed essential for the period of the calendar and for some time before the calendar.   Still, it may be a little tricky for those with cases on these calendars.

The United States Tax Court is shut down starting Friday, December 28, 2018, at 11:59 p.m. and will remain closed until further notice.

The trial sessions scheduled for the weeks of January 7 and 14, 2019, will proceed as scheduled.

  January 7, 2019

  • Birmingham, Alabama – Judge Joseph Robert Goeke
  • Los Angeles, California -Judge Albert G. Lauber
  • San Antonio, Texas – Judge Mary Ann Cohen

January 14, 2019

  • Los Angeles, California – Chief Special Trial Judge Lewis R. Carluzzo
  • New York, New York – Special Trial Judge Daniel A. Guy, Jr.
  • Phoenix, Arizona – Judge Ronald L. Buch
eFiling and eAccess will be available. Taxpayers may comply with statutory deadlines for filing petitions or notices of appeal by timely mailing a petition or notice of appeal to the Court. Timeliness of mailing of the petition or notice of appeal is determined by the United States Postal Service’s postmark or the delivery certificate of a designated private delivery service.

Please monitor this website for information regarding the Court’s operating status.

 

A Close Look at the IRS Shutdown

As we settle in for what may be a long shutdown of the not yet funded parts of the federal government, including the IRS, frequent commenter and occasional guest blogger, Bob Kamman, brings us a post on what to expect at the IRS. I know from email traffic among tax clinics that the fax machine at the CAF unit has been turned off meaning that those trying to notify the IRS of the power of attorney must wait for the IRS to reopen before sending in form. The turning off of the CAF fax machine is just one tangible way of knowing that the IRS has shifted to shut down mode. Bob gives an employee by employee breakdown of who is working.

 

We wrote previously about a law suit brought by National Taxpayer Advocate Nina Olson after the Taxpayer Advocate Service was deemed non-essential in its entirety during one of the most recent shutdowns. The NTA lost the suit but may have won the war, or at least partially so, because the NTA and certain TAS employees are deemed essential now which could be critical from taxpayers facing a hardship. I suspect the NTA faces a significant hardship herself because of the timing of this shutdown and the issuance of her annual report to Congress. Read on for the details distilled for us by Bob straight from the contingency plan created by the IRS. For prior coverage about government shutdowns and the IRS, see our post here which gives a broader perspective on government shutdowns and which links to prior posts on the subject. Keith

After all the work that the Internal Revenue Service put into planning for a shutdown, it would have been a shame to waste it.

The IRS contingency plan, revised on November 30, 2018, provides many useful insights into what the federal tax agency considers important and which employees it considers essential. The 110-page document can be found here.

The priorities include:

1) Open the mail. There might be checks.

2) Cash the checks.

3) Protect the statutes of limitation, for collection and assessment, from expiring.

4) Keep the computers running and keep preparing for tax season.

5) Especially, keep preparing for implementation of the 2017 tax law changes, because money for that has already been appropriated.

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IRS has a total workforce of 79,868 employees. Of those, 9,946 are “excepted” to some extent from furlough. The rest will not return to work until their jobs are funded. Most likely, they will eventually be paid for their time away, but they might miss paychecks until the shutdown ends.

If the government had to close, the last couple weeks of the year were the best time. Many employees with seniority and “use or lose” leave time, were away on planned vacations anyway.

Here are some highlights from the “Lapse in Appropriations Contingency Plan,” with a focus on several areas of importance to readers of this blog.

“Excepted” employees are categorized as A, B or C.

Category A employees have jobs that “include those authorized by law and those funded by multi-year, no-year, and revolving funds or advance appropriations that would not be affected by a lapse in an annual appropriation.” There are 1,900 of them.

Category B employees perform tasks that are “necessary for the safety of human life or protection of government property.” Oddly enough, this includes “administrative, research, and other overhead activities supporting excepted activities” such as “completion and testing of the upcoming Filing Year programs,” “processing paper tax returns through batching,” and “Upcoming Tax Year forms design and printing.” There are 8,017 of them.

Category C employees are those needed “to bring about the orderly closedown of non-excepted activities. Activities of employees during this period must be wholly devoted to close-down the function. Upon completion of these activities, these employees would be released.” There are 29 of them, including the only three from the Office of Professional Responsibility with any shutdown duties.

Chief Counsel

The Chief Counsel (lucky guy) is a Presidential appointee who is not subject to furlough.   As for the rest of the office, 286 must show up now and get paid later for these purposes:

The plan excepts, on an as needed basis, those personnel assigned to litigation that is scheduled for trial or where there is a court-imposed deadline during the first five days of a lapse. Personnel are not generally excepted to perform litigation activities where a trial or other court-imposed deadline is scheduled more than five days after the start of the lapse. Personnel assigned to those cases should seek continuances as part of an orderly shutdown. If a continuance is denied, the case will be reviewed to determine if work on the case may be excepted.

Chief Counsel personnel are also excepted, on an as needed basis to provide required legal advice necessary to protect statute expiration, and the government’s interest in bankruptcy, lien, and seizure cases. Personnel excepted to perform this work are also excepted under Category B. The employees in General Legal Services are in Category A3, because they are needed to support activities that are authorized to continue during a lapse in appropriations. The employees in Criminal Tax fall into Category B because they maintain criminal law enforcement and undercover operations. Fifty-six employees are supporting the Tax Cuts and Jobs Act and fall into Category A1 because they are funded with the special two-year appropriation provided for TCJA activities.

Appeals

18 employees are “excepted” from shutdown:

Appeals requires that a minimum number of technical staff remain active to ensure statutory deadlines are met. Taxpayer compliance cases, when appealed, must be adjudicated within a statutory timeline that is not under the control of the IRS. If cases are not monitored, statutes may lapse resulting in adverse impacts to the IRS and US government tax collection functions.

During a lapse, the Chief, Appeals will hold a daily virtual meeting with excepted personnel to identify any imminent statutory deadlines or other threats to government property. As necessary, excepted personnel will be activated to take actions that address the imminent threat. All other employees will return to furlough status until the following day.

National Taxpayer Advocate

“National Taxpayer Advocate (NTA) has identified 84 employees (the NTA and one per TAS office) who are required on an on-call basis based the necessary-for-the-safety-of-human-life-and-the-protection-of-property exception (Category B).” That’s not grammatical, but that’s what the plan says. The plan’s chart (Page 96) shows 82, not 84 employees.

 

The local Taxpayer Advocates (one per TAS office) are to report intermittently to check the mail. There might be checks, and the filing of a Taxpayer Assistance Order suspends the statute on collection. Their instructions:

Check mail one or two hours a day, up to three days a week, to comply with the IRS’s requirement to open and process checks during a shutdown while also complying with the statutory requirements that TAS maintain confidential and separate communications with taxpayers and that TAS operate independently of any other IRS office, as described in IRC §§ 7803(c)(4)(A)(iii), 7803(c)(4)(A)(iv), and 7803(c)(4)(B). Screen the mail for incoming requests for Taxpayer Assistance Orders and notify the appropriate Business Unit that a request has been made tolling any statute of limitations. See IRC § 7811(d).

Criminal Investigation

Crime never stops, so CI never shuts down. The plan notes that “in recent years, the Shutdown Contingency Plan proposed that CI attempt to continue work on our 6,352 investigations with a reduced staff. During the implementation phase of the 2011 Shutdown Plan, it became clear that it was logistically impossible for CI to operate at a nearly 50% staffing level when the federal courts, federal prosecutors and our federal law enforcement partners were planning to continue their usual law enforcement operations.”

So all 2,745 Criminal Investigation employees continue to report.

The Most Important People At IRS

A third of the IRS employees who continue to work – 3,337 of them – are in “Information Technology.”

For example, 571 “IT Specialists…support application & web services operations necessary to prevent loss of data in process and revenue collections, application support for critical systems, manage code, perform builds, process transmittals, completion and testing of Filing Year programs.”

Another 62 are needed to “Support the IT filing season systems that operate the nation’s tax infrastructure are updated and in place for the processing of approximately 200 million tax returns annually.”

And 119 employees are required to “Provide 24×7 database support, including data storage, data replication and data backup and recovery for critical IT projects in Dev/Test/Prod/DR environments to continue to work deliverables and maintain all systems related to filing season preparedness, IT Security and IT support for Essential processes/employees.”

In the Mainframe Operations Branch (the “MOB”), 131 IRS workers, among other essential duties, “Provide critical 24x7x365 coverage to applications; Process tax returns, tax deposit and refunds; continue to process successfully on IBM and Unisys mainframe systems and to provide print and electronic documents support for internal and external customers; . . . The IDSE Section provides printed notices and letters to taxpayers, as well as both printed and electronic documents to internal customer.”

The Commissioner

Don’t worry about him, either. Like Chief Counsel, he is a “Political appointee who is not subject to furlough. The Commissioner’s salary is an obligation incurred by the year, without consideration of hours of duty required and is not placed in a non-duty, non-pay status.”

And he keeps his security detail, also. There are six special agents from Criminal Investigation who serve in that capacity (probably not more than two at a time).