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IRS Post-Scandal Court Appearance Reveals Effort to Run from Justice

Yesterday marked a new entry in an ongoing pattern of changing stories and defenses to prevent the light of day from exposing egregiously unconstitutional behavior by one of the most dreaded limbs of government: the Internal Revenue Service.

“It is no surprise that the IRS is desperately fighting to prevent anyone from learning exactly how the IRS decided to categorize organizations on the basis of their political, religious or other viewpoints, an issue from which the government entity has been reeling for weeks, and with good reason,” said Lori Lowenthal Marcus, president of Z STREET.

Represented by the Justice Department, the IRS filed a brief seeking to dismiss the lawsuit against it brought by Z STREET, a staunchly pro-Israel organization, which was filed in August, 2010.

That lawsuit was the first public utterance that the IRS was discriminating against certain organizations because of their viewpoints, rather than because of a failure to follow the required guidelines of eligibility.

In May, the admission – after years of denials – by the IRS itself that it had engaged in categorizing politically conservative groups for differing treatment touched off a flurry of congressional and media attention.  Most of the attention was focused on the treatment of “Tea Party” and other politically or socially conservative groups.

Z STREET brought its lawsuit nearly three years ago, after being told by the IRS agent to whom its file had been assigned that the IRS had to “give special scrutiny to organizations connected to Israel,” and that the files of some of those “organizations were sent to a special unit in Washington, D.C. to determine whether the activities of the organization contradicted the public policies of the administration.”  Such treatment by the IRS constitutes bald-faced viewpoint discrimination and is a violation of the U.S. Constitution.

The IRS has defended itself in the lawsuit on several different grounds, including the absurd notion that the government is immune from such a lawsuit. (In fact, of course the Bill of Rights — which begins with the First Amendment, securing the right to free speech — was created specifically to protect citizens from unconstitutional behavior by the government).

In particular, the government has repeatedly denounced Z STREET for failing to wait the requisite number of days before complaining and going to court for not receiving tax exempt status.  And as Z STREET explained in every single one of its own court filings, the lawsuit was not brought because it had not been given (or denied) tax exempt status within a particular time frame.  The lawsuit was brought because Z STREET believes, based upon what the IRS agent herself said, that the IRS engaged in unconstitutional viewpoint behavior.  There is no requirement to wait a set period of time before making such a claim.

However, in yesterday’s filing, the IRS claimed – for the first time, not surprisingly, as it completely contradicts every other court filing by the IRS in this case – that Z STREET’s lawsuit should be dismissed because it failed to make out the very claim the IRS had repeatedly insisted Z STREET was making – that it qualifies for, and should have already been given, tax exempt status.

It bears noting that yesterday another set of significant documents was released by the IRS, via the House Ways and Means Committee.  These, in an apparent attempt to prove that the IRS was not just engaging in viewpoint discrimination against politically conservative groups, showed that the IRS had created a category for review it labeled “progressive,” as if that made everything kosher.  But also included in the documents released was a category labeled “occupied territory advocacy.”  In other words, the IRS was indeed singling out applications for tax exempt status on the basis of a particular political viewpoint which is inconsistent with this administration’s.  And that is bald-faced viewpoint discrimination and is the basis for Z STREET’s lawsuit against the IRS.

The first hearing in Z STREET’s lawsuit against the IRS will be held on July 19 at 10:00 in Courtroom 17 before Judge Ketanji Brown Jackson, in the Federal District Court of the District of Columbia.

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