- The Washington Times - Friday, August 5, 2016

A federal appeals court slapped the IRS with yet another rebuke Friday, ruling that it did, in fact, discriminate against tea party groups and insisting the tax agency prove that it’s permanently stopped the unconstitutional targeting of groups because of their political leanings.

The U.S. Court of Appeals for the D.C. Circuit said tea party groups can’t sue individual IRS employees such as former senior executive Lois G. Lerner, but said the tax agency itself has not sufficiently proved that it has banned any future targeting. The three-judge panel sent the case back to a lower court for a more thorough ruling.

The IRS had insisted it “voluntarily” ceased the targeting, so the case was moot.

But Judge David B. Sentelle, writing for the appeals court, said that was clearly not the case because some organizations were still awaiting approval years after they applied. And he flatly rejected the IRS’s explanation that those groups couldn’t be processed because they were suing the IRS, calling that a classic catch-22.

One group, the Albuquerque Tea Party, is still awaiting approval nearly seven years after it filed its first application.

“The IRS is telling the applicants in these cases that ‘we have been violating your rights and not properly processing your applications. You are entitled to have your applications processed. But if you ask for that processing by way of a lawsuit, then you can’t have it,’” Judge Sentelle wrote. “We would advise the IRS: if you haven’t ceased to violate the rights of the taxpayers, then there is no cessation. You have not carried your burden, be it heavy or light.”

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The IRS didn’t comment on the ruling, which is the latest in a string of setbacks. The agency is also battling a class action lawsuit brought by tea party groups in another federal court.

Hundreds of groups were subjected to the targeting, which saw the IRS pull their tax-exempt status applications out of the usual process, based on agents’ suspicions about their connection to conservative causes.

The groups then had their applications delayed while IRS agents asked probing — and potentially unconstitutional — questions about their activities.

After being caught, the IRS announced it was suspending “until further notice” its use of targeting lists to single out applications.

The appeals court Friday said that suggests the IRS thinks it could re-start the use of the lists. And Judge Sentelle said that doesn’t begin to scratch the other issues of long delays and unconstitutional questions asked of the groups.

True the Vote, one of the groups that won the appeal, said courts are getting closer to cracking the IRS’s shell.

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“This lawsuit has been a struggle every step of the way, but is a battle that must be fought. When a rogue government sets out to silence its citizens and deny them their Constitutional rights, we all suffer for it,” said group founder Catherine Engelbrecht.

The Justice Department cleared the IRS of intentional criminal wrongdoing, instead blaming bad management and a confusing legal situation for leaving agents unsure of how to handle cases.

But that investigation by the Obama administration did not sit well with conservatives, who question why the agency deleted tens of thousands of email messages that were subject to a subpoena.

Some conservatives in Congress are pressing for impeachment of IRS Commissioner John Koskinen, who was brought in to clean up the agency but who instead oversaw the deletion of the emails.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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