Earlier this month, the First Circuit Court of Appeals held in a case of first impression that evidence seized by IRS special agents from the taxpayer's home was admissible even though IRS Special Agents were armed when they entered the residence. The case, United States v. Adams, __ F. 3d __ (1st Cir. 2014) [Nos. 12-2276], dealt with a tax protestor charged with two counts of tax evasion and conspiracy to defraud the United States by impeding the Government with the collection of payroll taxes. (click link for case)
In an effort to suppress the evidence collected from his home, the taxpayer focused on Code Section 7608. Section 7608(a) specifically provides that IRS personnel that enforce the laws pertaining to alcohol, tobacco and firearms (often referred to as ATF) are permitted to carry firearms.
Because the Special Agents who seized the property were enforcing the income tax laws, and not the ATF laws, Section 7608(a), arguably did not apply. Rather, Section 7608(b) applied, and carrying firearms is not enumerated as a power or right provided to Special Agents in enforcing other tax laws.
The taxpayer was found guilty following a jury trial during which the illicit evidence was admitted, which led to an appeal.
All Special Agents carry firearms, and if it is not permitted by Section 7608(b) from where does the authority come? The answer is the Internal Revenue Manual (the "IRM"). Section 184.108.40.206.1 of the IRM is titled "Authority To Carry Firearms." (click link for IRM). It provides as follows:
- There is no specific statutory authority for special agents to carry firearms. The General Counsel, Department of the Treasury, has concluded that no specific authority is necessary because "where a Federal officer has authority to make an arrest, he/she has implied authority to carry firearms." Authority for special agents to make arrests is contained in 26 USC §7608(b).
- The authority to carry firearms is limited to the conduct of official duties in enforcing any of the criminal provisions of the Internal Revenue laws or other criminal provisions of laws relating to the Internal Revenue where the enforcement is the responsibility of the Secretary or his/her delegate.
During his appeal the taxpayer argued that since Section 7608)(b) did not explicitly permit Special Agents enforcing an income tax matter to carry firearms, Congress intended to prohibit such agents from being armed. Therefore, the search was illegal.
Although we have not been able to locate the written conclusions of the Treasury General Counsel cited in the IRM and have not reviewed the briefs that may have addressed the text of the IRM, both the lower court and appellate courts assumed that the Special Agents violated Section 7608(b) during their search because they were carrying weapons. However, they found suppressing the evidence was not the appropriate remedy. The appellate court held that the fact that the agents carried weapons had no impact on the scope of the search or evidence procured. Neither court referenced the IRM or ruled on whether Section 7608(b) actually permits Special Agents to carry weapons.