The Taxpayer Advocate Service’s Role During an IRS Shutdown

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The ongoing lapse in federal government appropriations is now the longest in modern history. On January 15, the IRS released an updated shutdown plan which substantially alters how the ongoing shutdown impacts taxpayers. Regular PT contributor Bob Kamman described the updated plan here; he summarized the original shutdown plan here. The biggest change of plan is the recall of about half the IRS workforce primarily to process tax returns and ensure that refunds will be paid this filing season. But the plan also calls for expanded operations in another important arena: collections. And automated notices of intent to levy are still being issued. Meanwhile, Taxpayer Advocate Service (TAS) employees are largely furloughed and those who are excepted are not permitted to work on individual taxpayer cases. This situation raises important questions about the IRS and Treasury’s interpretation of the Anti-Deficiency Act. What should be TAS’s role in a shutdown, and who will protect taxpayer rights if TAS is not permitted to engage in those activities?  


In a February 2018 PT post, guest bloggeStuart J. Bassin explained the legal framework around a shutdown:

Spending and taxation authority reside in Congress under Article I, Section 8 of the Constitution; the Executive has no independent taxation or spending power. Separately, Article I Section 9 prevents unauthorized spending, providing that “No Money shall be drawn from the Treasury, but in consequence of appropriations made by law.” When a lapse in appropriations occurs, the government necessarily shuts down. Neither the President nor Congress decides to shut down the Government; it happens automatically under the Constitution. 

Statutory law develops the constitutional prohibitions and invokes the criminal law to enforce the prohibition. Under Section 1341(a) to Title 31 of the U.S. Code, federal employees “may not make or authorize an expenditure or obligation” or involve the “government in a contract or obligation” absent a lawful appropriation. Similarly, under Section 1342, federal employees “may not accept voluntary services for the government … except for emergencies involving the safety of human life or the protection of property.” The “emergency” exception is narrowly defined to exclude “ongoing, regular functions of government the suspension of which would not imminently threaten the safety of human life or the protection of property.” Section 1350 makes a knowing violation of either provision a felony punishable by up to two years in prison. 

So, when there is no Congressional appropriation funding the IRS, the Anti-Deficiency Act allows the agency to continue limited operations only “for emergencies involving the safety of human life or the protection of property, albeit with “volunteer” labor.  

This brings us to the Taxpayer Advocate Service. Given the substantial expansion of IRS operations reflected in the revised shutdown plan, it was disappointing to see the role of the Taxpayer Advocate Service remain the same. Bob Kamman notes: 

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? 

Apparently it doesn’t, at least not in the eyes of the IRS. Multiple TAS employees have privately confirmed that they are not permitted to work on taxpayer cases during the shutdown, even where a hardship is present.

TAS plays a crucial role in the tax collection system, as a backstop protecting taxpayers from serious financial hardship. As such, one might think that TAS activities related to taxpayer hardships would be excepted. Certainly taxpayers threatened with homelessness or living without heat or water view their situations as “emergencies involving the safety of human life or the protection of property”. However, the IRS Office of Chief Counsel has interpreted the “protection of property” prong to refer only to government property (Exception Category B of the shutdown plan: “Necessary for the Safety of Human Life or Protection of Government Property”). The NTA strongly disagrees with this interpretation, and she has called on Congress to clarify the statute.  

In her Fiscal Year 2015 Objectives Report to Congress (June 30, 2014), Nina Olson analyzed the Anti-Deficiency Act and raised several concerns with the IRS’s interpretation of its exceptions as applied to TAS. She also compared the IRS’s 2013 shutdown policy to its prior shutdown contingency plan and to the interpretations of other federal agencies and the OMB. It’s illuminating to revisit that report now in light of the original and revised shutdown plans for 2018/2019. I recommend reading the report for the full background and detailed analysis.  

The good news is that the IRS has addressed or partially addressed some of the NTA’s previous concerns. The January 2019 shutdown plan provides for the recall of 1,989 SBSE collection representatives whose duties include releasing liens and levies as required by law. Shockingly, release of levies was not a function performed at all during the 2013 shutdown. The current plan also preserves TAS’s independence by permitting TAS employees to open their own mail, which also was not allowed in 2013. However, the IRS has not changed its interpretation of the “protection of property” exception and it has not conceded that TAS plays an integral role in protecting the integrity of tax collection and in preventing taxpayers from experiencing irreparable harm.  

The limited IRS telephone service provided for in the new shutdown plan has only been open since January 22, and it is not clear yet whether the current operations plan will be sufficient to protect taxpayers against serious harm from unlawful collection actions. Anecdotal reports on the ABA Tax Section’s Low-Income Taxpayer email list suggest that taxpayers and representatives may experience inconsistent treatment when calling in, with some IRS representatives able to accept faxed authorizations and some not, and some representatives claiming they have no ability to address the caller’s hardship. Problems with front-line collection employees are nothing new to taxpayer representatives. One could argue that the sufficiency of the new shutdown plan is not open to debate, as Congress has already determined in enacting sections 7803(c) and 7811 that the NTA and TAS are a necessary safeguard within the system to protect taxpayers from unlawful collection action.  

When the shutdown ends, I anticipate the NTA forcefully renewing her legislative recommendation that Congress 

Clarify that the emergency exception to the Anti-Deficiency Act for the protection of property includes taxpayer property as well as government property. Alternatively, clarify that the National Taxpayer Advocate may incur obligations in advance of appropriations for purposes of assisting taxpayers experiencing an economic hardship within the meaning of IRC § 6343(a)(1)(D) due to an IRS action or inaction, and that the IRS may incur obligations in advance of appropriations for purposes of complying with any Taxpayer Assistance Order issued pursuant to IRC § 7811.

Such clarification would be a relief for taxpayers in a world in which future shutdowns seem inevitable.  

Christine Speidel About Christine Speidel

Christine Speidel is Associate Professor and Director of the Federal Tax Clinic at Villanova University Charles Widger School of Law. Prior to her appointment at Villanova she practiced law at Vermont Legal Aid, Inc. At Vermont Legal Aid Christine directed the Vermont Low-Income Taxpayer Clinic and was a staff attorney for Vermont Legal Aid's Office of the Health Care Advocate.


  1. Christopher Nebel says

    As a Local Taxpayer Advocate, this shutdown transcends frustrating. As TAS enters what is historically the busiest time of the year and the number of taxpayers seeking assistance surges, we are not able to help. The people contacting TAS, both practitioners and individuals, often do so only when all else fails, the circumstances have become dire and they need a voice at IRS. The lapse in funding has removed that safety net. Frustrating simply does not cover it. I hope cooler heads prevail and common sense returns to all concerned.


    Christine – Thanks for spelling out the extremely limited role permitted for TAS under the shutdown plan. As outrageous as it is to have such diabolical limitations on the ability of TAS [and other IRS employees] to assist taxpayers – especially during “tax season” – it’s important for tax practitioners to be aware of the limitations. I hope that local and national tax practitioner organizations and “tax media” make a major effort to inform the public about this as widely as possible. – Ron Wiener

    • Thanks for your comment. I agree the message needs to get out, so that taxpayers are not left wondering why TAS is not responding.

      Even though TAS can’t act on requests right now, I’d encourage practitioners to send a letter or Form 911 to their local TAS office if you encounter roadblocks at the IRS. This would help TAS promptly address hardship issues when the government re-opens, and also document the effects of the shutdown.

  3. All I know is what I read on the Taxpayer Advocate website.

    “As of January 23, 2018, all Taxpayer Advocate Service offices have resumed normal operations.”

  4. Norman Diamond says

    “The January 2019 shutdown plan provides for the recall of 1,989 SBSE collection representatives whose duties include releasing liens and levies as required by law.”

    Is that why IRS collections agents are unfamiliar with wage, investment, and international issues? Is that why I had to teach an IRS lawyer some of the IRS’s instructions for Form 1116?

    “The current plan also preserves TAS’s independence by permitting TAS employees to open their own mail, which also was not allowed in 2013.”

    That could be good news. TIGTA has reported thefts of mail from IRS mail rooms. TAS gave me the impression that mail addressed to TAS was included. During the shutdown, does TAS actually receive its own mail?

    • William Clayton says

      It depends on the location of the TAS office. Larger offices co-located with other major IRS functions of significant size have a mail room staffed with contract employees who sort and distribute throughout the building. In midsized and smaller offices the mail is sorted by secretaries from each function in the building, rotating between all functions co-located. Never a short answer.

      • Norman Diamond says

        Thank you, though you answered a different question than I asked. US taxpayers living outside the US are directed to write to TAS in Puerto Rico. Sometimes further correspondence comes from there and sometimes from offices in the US, until it stops. Both in Puerto Rico and offices in the US, sometimes they’ve denied receiving registered mail and sometimes they’ve denied receiving ordinary mail. I think even in Puerto Rico they don’t remember how long mail ordinarily takes. In statutes, only the time period for Notice of Deficiency increases from 90 to 150 days. Things like 10-day notices do not get extended, even when the IRS sends them by sea mail from Estonia.

        Now, I don’t know which offices should have let TAS receive its own mail. Puerto Rico sounds like it should have been, even when there was no disaster and no shutdown.

        My question was snarkily wondering about offices where TAS was subject to the same kinds of mailroom operations that TIGTA has reported, and wondering if TAS would receive their own mail during the shutdown.

        It doesn’t really matter though. Taxpayers won’t really see a difference.

  5. A Dallas television station reported Monday, January 28:

    A note on the Taxpayer Advocate Service’s national web site said that all offices were open but when CBS 11 called the Dallas office, a recording that played said the office was still closed. “Due to the lack of an approved federal budget, we deeply regret that our office was required to close and we are currently unable to assist you,” the message said. “We apologize for the inconvenience.”

    It was unclear whether the office was still closed or if the voice-mail just had not been changed back after the government reopened.

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