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Three Cheers for the IRS – Really

By Edward Zelinsky

Few governmental agencies are as widely criticized as the IRS. Some of this criticism is inevitable resentment towards the tax collector. It is, Edmund Burke famously observed, as impossible “to tax and to please” as it is “to love and be wise.” The IRS rarely pleases and is never loved.

Moreover, the IRS has become a particularly tempting target for opportunistic politicians. Rather than engage in the difficult work of controlling public expenditures and rationalizing the tax law, it is easier for elected officials to engage in faux populist bashing of the IRS for its enforcement of tax laws for which Congress and the President are responsible.

However, a substantial portion of contemporary criticism of the IRS is justified. It is, for example, troubling that the IRS consistently attacks as unreasonable the compensation paid to owners of closely-held corporations while acquiescing to the tax deductibility of far larger salary payments to the executives of publicly-traded firms.

It is, in the final analysis, critical to the operation of a modern society that taxes be collected fairly and efficiently. It is accordingly important for those of us who have criticized the IRS (and expect to do so in the future) to speak up when the IRS gets something right.

And recently the IRS has done something important right: cracking the secrecy of the Swiss banks which help affluent Americans to cheat on their U.S. taxes.

This is a simple matter of fairness. Middle and working class Americans, when they save outside their IRAs and 401(k) accounts, typically put cash into local banks and credit unions. From such institutions, these taxpayers receive Form 1099 annually and generally comply with the legal obligation to pay federal income tax on the interest credited to their bank and credit union accounts. Such middle and working class taxpayers may also be subject to back-up withholding under which the institutions paying them interest retain some of that interest and send it to the IRS.

In contrast, for years, a disturbingly large number of affluent Americans have knowingly cheated on their U.S. tax obligations by placing savings in foreign bank accounts which they do not report to the IRS, even though these citizens are legally obligated to disclose foreign accounts to the IRS and to pay U.S. income tax on the interest earned by such foreign accounts. The result has been something of a two-tier system under which, to paraphrase Leona Helmsley, only the little people pay taxes on bank account interest.

Central to the creation and promotion of this two-tier scheme have been the efforts of Swiss bankers with the active connivance of the Swiss government. Tax evasion and money laundering are major Swiss industries which Swiss bankers have conducted with the support of Switzerland’s bank secrecy laws. Those laws have assured high income U.S. taxpayers that they will not be caught if they violate U.S. law by putting savings into undisclosed Swiss bank accounts and failing to pay the federal income taxes owed on the interest paid on such accounts.

Recently, the IRS has begun to crack the wall of secrecy surrounding Swiss bank accounts by obtaining the names of U.S. citizens holding such accounts and enforcing the tax law against these individuals. Every American who has been paying his federal income taxes on his interest-bearing accounts should applaud this development.

This being the IRS, there are those who have criticized the IRS’s efforts as overdue and as obtaining the names of only a fraction of the U.S. citizens who have cheated on U.S. taxes via Swiss bank accounts. Others have faulted the IRS for giving American citizens an amnesty period during which such citizens will generally be spared the worst penalties if they now come forward and pay the back taxes owed on previously undisclosed Swiss bank accounts.

It would indeed be unfortunate if, having achieved impressive initial success, the IRS were to rest on its laurels, rather than continue its efforts to obtain more names of U.S. citizens with undisclosed Swiss bank deposits. Whatever the merits of the amnesty deployed by the IRS (it probably is a necessary evil), this should be a one-time offer to those who have cheated on U.S. taxes, an offer not to be repeated.

When I was in government, I invariably heard from persons who were unhappy with my performance but rarely received a word of commendation from those who favored my decisions. This always troubled me. So, as one who has not hesitated over the years to criticize the IRS, let me commend the IRS for its crackdown on Americans who have been cheating on U.S. taxes through Swiss bank accounts. On this one, the IRS is getting it right and deserves the support of all U.S. taxpayers.

Edward A. Zelinsky is the Morris and Annie Trachman Professor of Law at the Benjamin N. Cardozo School of Law of Yeshiva University. He is the author of The Origins of the Ownership Society: How The Defined Contribution Paradigm Changed America.

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