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Shining a light on the `secret law' of the IRS

WASHINGTON -- The most subversive minds in global taxation work out of a squat, austerely appointed office building in Arlington, Va. Their ranks include the sober-suited, the leather-clad, and the body-pierced. Their mission is to serve as the eyes and ears of tax lawyers everywhere, exposing to public view the "secret law" of the Internal Revenue Service.

They are the men and women of Tax Analysts -- self-described "tax geeks" and self-appointed watchdogs over the IRS. Over the past 30 years, Tax Analysts, a not-for-profit publisher of bulletins and journals, has forced or is challenging the IRS to own up to the following:

* That the agency compiled a web of internal memorandums and nonpublic rulings that gave its officers an edge when auditing taxpayers.

* That it is considering sharing taxpayer information with other agencies in an effort to combat terrorism and corporate malfeasance.

* That it should disclose details of a private agreement allowing the Rev. Pat Robertson's Christian Broadcasting Network to retain its tax-exempt status, even after it helped finance Robertson's 1988 presidential campaign.

"The IRS knows everything," said Christopher Bergin, Tax Analysts' executive director and chief executive. "It knows how much we make, where we bank, and where we work. It is more powerful than the CIA, and it has to be accountable to the people."

In a city riven by partisan bickering, Tax Analysts' publications are regarded by tax lawyers, regulators, and congressional staff as the epitome of hard-nosed impartiality. While trade publications often criticize government agencies, few are prepared to mount the kind of prolonged legal struggle Tax Analysts has waged to pry information from the IRS.

In 1972, Tax Analysts filed suit against the service to make public the collection of rulings on tax issues compiled by IRS attorneys in response to questions from corporations about proposed transactions, the so-called "Private Letter Rulings." The suit also demanded exposure of "Technical Advice Memoranda" -- memos written during the negotiation of an audit. These rulings and memos evolved into a private compendium of precedent-setting documents that IRS staff attorneys could use to their advantage as they faced lawyers unaware that the documents even existed. Smaller law firms were shut out, while big Washington law firms with many tax cases could build private libraries of these rulings.

"We worried about the creation of legal monopolies," said Bergin.

Tax Analysts won a subsequent four-year fight waged in court and Congress, and both the private rulings and memoranda were made public. By the early 1990s, however, the number of these documents had declined in favor of something called "Field Service Advice," a similar cache of internal legal opinions. Again Tax Analysts took the IRS to court, and the service was obliged to make the rulings public; when the IRS replaced Field Service Advice with "District Counsel Advice," Tax Analysts sued for disclosure and won again.

In 1997, it filed suit to force the IRS Office of Chief Counsel to reveal its "Litigation Guideline Memoranda" -- long and detailed opinions on legal issues likely to arise in tax-court litigation. Once more, the court found in Tax Analysts' favor.

The IRS would not comment on its legal battles with Tax Analysts.

Of the group and its role as gadfly to America's tax authority, Frank Keith, director of the IRS press office, said: "We fully recognize the American taxpayer has a right to understand how the tax code is administered in this country and the media's right to report on how we administer it."

So fiercely has Tax Analysts been nipping at the IRS's heels that some specialists worry that IRS officers now are reluctant to put anything in writing.

"I don't completely agree with their demands for openness," said Sheldon S. Cohen, an IRS commissioner in the Johnson administration and now a tax attorney in Washington. "If you criticize everything, the IRS simply publishes less. These efforts are counterproductive."

Cohen, like many specialists, devours "Tax Notes" -- the analysts' weekly bulletin on law, regulation, and enforcement. In late August the bulletin riveted the tax trade with a report on how the IRS was examining ways it might share taxpayer information with other agencies, particularly the Immigration and Naturalization Service and the Securities and Exchange Commission. Such a move, even if it were found not to be flatly illegal, would violate the spirit of IRS privacy laws, according to many tax specialists. Keith said the IRS has no such intention. "The commissioner understands that would require a statutory change and there are no plans for expanding that statute."

The "Tax Notes" staff is a quirky blend of career journalists, economists, tax attorneys, and former regulators united in their passion for the arcana of tax law. The office motif is retro antiestablishment -- think of a Silicon Valley start-up, circa 1994. The Tax Analysts' credo -- "Respectfully disagreeable since 1970" -- appears prominently on several banners and posters. "They come with a healthy amount of skepticism," Howard Gleckman, a senior correspondent for Business Week who has followed US tax policy for 30 years, said of the "Tax Notes" staff. "A lot of them are lawyers who could be making a lot more dough working in the corporate world, but they're clearly having too much fun doing what they do."

Journalist Heather Bennett, "Tax Notes" news editor, has been with the company for five years. "Covering taxes," she said in the staff conference room, a basement office lit by a blinking fluorescent tube, "is the sexiest beat in Washington. We care about this stuff. We really do."

Tax lawyer Robert Goulder edits the "Tax Notes" bulletin on international tax law. He talked excitedly about a World Trade Organization ruling that declares illegal a US tax exemption on income US companies earn abroad. The European Union has threatened to levy billions of dollars in import duties on US goods in response to what it said is a hidden subsidy for US companies -- a claim bolstered by a "Tax Notes" column that appeared in support of the EU position. Goulder cited the column as an example of fierce impartiality.

"We wield a lot of influence," Goulder said, beaming. "There is so much juicy, jazzy, sexy stuff out there in international tax law."

The doyenne of the "Tax Notes" staff is contributing editor Lee Shepherd, a New York columnist and flamboyant figure in the buttoned-down tax world. At news conferences and seminars, Shepherd sports leather pants, T-shirts, and bleached hair as she confers with staid tax lawyers and regulators.

Shepherd set the standard for reporters when she covered the Tax Reform Act of 1986, and showed the same fiscal expertise when the Enron scandal broke. Gleckman said, "She is extremely knowledgeable . . . about these immensely complicated tax gimmicks."

Credibility like that, specialists said, makes Tax Analysts' running skirmishes with the IRS an entertaining spectator sport. Tax Analysts is challenging the IRS in court to make public the agreement it has with Robertson that allowed his Christian Broadcasting Network to retain its tax-exempt status.

"We honestly feel open government leads to better democracy, and we're not afraid to duke it out if we have to," said "Tax Notes" editor David Brunori. "There's a healthy swagger around here."

Stephen J. Glain can be reached at glain@globe.com.

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