For years, the IRS has used a law meant to facilitate the tracking of illicit financial transactions by drug and terrorist organizations to seize and forfeit vast sums of money from people with absolutely no connection to the criminal underworld.
On Thursday, the U.S. House of Representatives voted unanimously to curb this practice by passing H.R. 5523, the Restraining Excessive Seizure of Property through the Exploitation of Civil Asset Forfeiture Tools, or RESPECT, Act.
This is the first of hopefully a long series of federal legislative reforms targeting America’s broken civil forfeiture system.
Federal law requires that banks report any transactions exceeding $10,000 in value to the federal government, and makes it a crime to “structure” transactions in amounts less than $10,000 to avoid the reporting requirement. If the IRS suspects someone of structuring his transactions, his entire bank account can be seized and forfeited under federal civil forfeiture laws even if officials have no reason to believe his funds were derived from criminal activity.
These “legal source structuring” cases are hardly infrequent occurrences. Between 2005 and 2012, the IRS seized $242 million in more than 2,500 structuring cases. Fully one-third of these were civil actions where structuring was the only alleged wrongdoing.
The victims of these abusive structuring cases are frequently unwary small business owners who have entirely legitimate reasons for making repeated deposits just below $10,000.
Take Michigan grocer Terry Dehko, whose insurance policy only covered cash losses up to $10,000. Naturally, Dehko frequently made cash deposits to his business bank account that fell just under the $10,000 threshold. Like any responsible business owner, Dehko was taking reasonable precautions against theft.
It is sadly ironic that the IRS used this to justify wiping out Dehko’s bank account, seizing $35,651 because of alleged “structuring” violations. There was never any allegation that his grocery store was a front for illegal activity or that Dehko was otherwise involved in criminal activity.
Though the law requires that prosecutors prove intent to avoid reporting requirements in structuring cases, in this and many instances it appears the IRS simply did not like his pattern of deposits, and that was enough to seize the funds and nearly put Dehko out of business.
The agency later offered a settlement that bordered on extortion: it would drop the case if Dehko agreed to let the IRS keep 80 percent of his hard-earned money. Instead, he obtained representation from the public interest law firm the Institute for Justice, and eventually won back all of his money.
Dehko is not alone. Carole Hinders of Iowa owned Mrs. Lady’s Mexican Café, a cash-only business, for 40 years. The IRS cleaned out her bank account, too, seizing $32,821 because of alleged structuring violations. Mitch, Rich, and Jeff Hirsch, owners of the New York-based Bi-County Distributors, had $446,000 seized by the IRS. It took them three years to win back their money.
And then there is the case of Randy and Karen Sowers, Maryland dairy farmers who had $62,936 seized in 2011. They, too, had been making sub-$10,000 cash deposits because their bank advised them that doing so would avoid time-consuming paperwork.
In the course of their case, Randy Sowers—understandably—talked to elected officials and the media about the travesty that had befallen him. The Sowers were eventually forced to settle and abandon $29,500 of their money. And as punishment for talking to the media, Stefan Cassella, the federal prosecutor handling the case, required as a condition of the settlement that the pair admit that the government had cause to seize their money in the first place.
This maneuver did not work as well as Cassella might have hoped. The Sowers’ story gained national attention. They were invited to testify before Congress. After being excoriated by lawmakers over the IRS’s baseless seizures of property, the agency invited the Sowers to file a petition for remission or mitigation—equivalent to a request for a pardon—and earlier this year agreed to return their money. And the IRS changed its internal rules to end legal source structuring cases.
Ultimately, stories like these spurred the House of Representatives to take action. Rep. Peter Roskam, R-Ill., drafted the RESPECT Act, which, if passed by the Senate, would essentially codify the IRS rule change.
The IRS would only be able to seize funds derived from an illegal source, and structuring violations can lead to forfeiture only if payments were “structured for the purpose of concealing the violation of a criminal law or regulation” other than the structuring statute.
Roskam’s bill affords property owners improved due process protections. The IRS would be required to provide notice of seizure to property owners within 30 days. Property owners would then have 30 days to request an adversarial hearing. The property must be returned to its owner if the IRS fails to hold a hearing within 30 days of the request or if, at the hearing, the IRS cannot demonstrate that “probable cause [exists] to believe that the property to be seized was derived from an illegal source or the funds were structured for the purpose of concealing the violation of a criminal law or regulation” besides the structuring statute itself.
Property owners are also entitled to recovery of any interest earned on seized funds for the duration of time the funds were held by the federal government; the bill makes this interest tax-exempt.
The House’s effort to curb the abusive practices of the IRS is to be commended, but the battle is far from over. Sens. Tim Scott, R-S.C., and Sherrod Brown, D-Ohio, have introduced companion legislation in the Senate.
And, the much broader DUE PROCESS Act is still pending before the House and the Senate Judiciary Committee. That bill would reform the procedures governing federal civil forfeiture cases and afford greater rights and protections to innocent property owners. And there remains a powerful financial incentive in forfeiture cases that desperately needs to be addressed.
Forty years ago, Aretha Franklin sang the famous line, “R-E-S-P-E-C-T, find out what it means to me.” On Thursday, the House of Representatives has answered: it means that it’s time to stop abusive property seizures by the IRS.
