The Washington Post

“The dog ate my e-mails” may work for the IRS, but it doesn’t for the rest of us

One reason many are infuriated by the Internal Revenue Service’s cavalier attitude toward the loss of Lois Lerner’s e-mails (and those of at least six other relevant IRS personnel) is that the IRS would hardly stand for equivalent conduct by taxpayers in the context of an audit. As The Economist wrote:

If your taxes are being audited and you tell the Internal Revenue Service (IRS) that you just so happen to have lost the records relating to the period in question, you cannot expect much sympathy. The taxman has heard it all before, and “the dog ate my accounts” gets you nowhere. Odd, then, that the IRS is offering more or less exactly that excuse to Congress.

As Rep. Paul Ryan noted at today’s heated hearing with IRS Commissioner Jon Koskinen, the IRS expects taxpayers to save all relevant documents for seven years, and yet the IRS was not saving some of its own official records for six months.

Over at Prawfsblawg, Pepperdine law professor Naomi Goodno considers how courts would handle equivalent conduct by a litigant facing a discovery request for e-mails and other electronically stored information.  The short answer: it’s not pretty.  Concludes Goodno: “If this discovery issue had arisen in federal court, the IRS would have likely been subject to monetary sanctions and possibly an adverse inference instruction. “

Jonathan H. Adler teaches courses in constitutional, administrative, and environmental law at the Case Western University School of Law, where he is the inaugural Johan Verheij Memorial Professor of Law and Director of the Center for Business Law and Regulation.



Success! Check your inbox for details. You might also like:

Please enter a valid email address

See all newsletters

Show Comments

Sign up for email updates from the "Confronting the Caliphate" series.

You have signed up for the "Confronting the Caliphate" series.

Thank you for signing up
You'll receive e-mail when new stories are published in this series.
Most Read



Success! Check your inbox for details.

See all newsletters

Next Story
Ilya Somin · June 20, 2014

To keep reading, please enter your email address.

You’ll also receive from The Washington Post:
  • A free 6-week digital subscription
  • Our daily newsletter in your inbox

Please enter a valid email address

I have read and agree to the Terms of Service and Privacy Policy.

Please indicate agreement.

Thank you.

Check your inbox. We’ve sent an email explaining how to set up an account and activate your free digital subscription.