No, the IRS is not an “Independent Agency”

By Eileen J. O'Connor on May 14, 2013

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On Friday, White House Press Secretary Jay Carney, and yesterday President Obama himself, declared that the Internal Revenue Service is an “independent agency.”  Not so, unless they are redefining the term.

Most Executive Branch departments are headed by a Cabinet Secretary (except for the Department of Justice, which is headed by the Attorney General of the United States) who is nominated by the President and confirmed by the Senate.  Within the Departments are agencies that carry out the various responsibilities of the Department.  They, too, are headed by Senate-confirmed Presidential appointees.  An “independent agency” is an agency of the federal government that is not part of an Executive Branch department.   These are generally boards and commissions, like the National Labor Relations Board and the Federal Communications Commission.

But just as the Federal Bureau of Investigation is part of the Department of Justice, the Internal Revenue Service is part of the Department of Treasury.  As with other federal agencies, each is headed by a Senate-confirmed Presidential appointee.  Neither of these is an “independent agency.”

In 1976, to prevent another 48-year term of service like J. Edgar Hoover’s, Congress enacted Public Law 94-503, limiting the service of an FBI Director to a single term of no more than 10 years. Director Mueller is now completing a Congressionally-approved two-year extension of his ten-year term.  Rather than find a new FBI Director, President Obama chose to hold over President Bush’s selection.

Effective in 1997, Congress enacted 26 USC 7803, creating a five-year term for the IRS Commissioner.  Charles Rossotti was the first IRS Commissioner to be appointed to a five-year term.  He was followed by Mark Everson, and then by Douglas Shulman, who left IRS when his term ended last November.  Shulman had announced as early as April 2012 that he would not seek a second term.  More than a year hence, the Administration has not nominated a successor.

Press Secretary Carney noted at his press briefing Friday, “The individual who was running the IRS at the time was actually an appointee from the previous administration.”

Can this mean the Administration subscribes to the axiom: “In politics, it’s not whether you win or lose, it’s how you place the blame”?

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