Inspector General found that “some sites had evidence placed in hallways, stacked outside cubicles, and in break rooms.”

President Biden’s push to increase the size and power of the IRS has significant criminal justice ramifications. The agency has a long and poor track record of handling seized evidence. This habit does not serve the public well.

The IRS Criminal Investigation Division (IRS-CI) was repeatedly found to leave critical evidence sitting around in break rooms, hallways and stacked outside cubicles, according to a report by the Treasury Inspector General for Tax Administration (TIGTA). In addition, the report found that CI offices did not maintain an Evidence Access Control Log to record access to areas where evidence is stored:

During our walkthroughs at the CI offices, we observed that some sites had evidence placed in hallways, stacked outside cubicles, and in break rooms.  In addition, seven of the nine offices did not keep grand jury material in a separate, secure area.  The grand jury material was intermingled with non-grand jury evidence and other case file information.

The agency’s careless approach to evidence storage has grave ramifications, as noted by the Inspector General:

In order for a seized item to be admissible as evidence, it is necessary to prove that the item is in the same condition as when it was seized.  If evidence is not stored properly, evidence may have been inappropriately disclosed, lost, tampered with, or stolen.  In addition, the chain of custody could be called into question, which could result in the item being deemed inadmissible in court.

The report suggests the IRS is an outlier in terms of its sloppy handling of evidence, compared to other federal law enforcement agencies:

In addition, we interviewed representatives from two other Federal law enforcement agencies to gain an understanding of how they maintained their chain of custody.  It was apparent from these interviews that both Federal agencies have an extensive chain of custody process.  For example, each agency limits access to the locked evidence room, which is maintained by an evidence custodian.  If evidence needs to be removed from the room, an agent must gain access through the evidence custodian and a record of that access is maintained.  This process helps ensure that evidence does not become lost or misplaced and helps keep the chain of custody from being broken.

Each IRS-CI special agent has the authority to investigate, inquire, and receive information. Of the investigative techniques available to agents, one of the most frequently used is the authority to conduct searches and issue search and seizure warrants. The authority for CI personnel to serve search warrants comes from Title 26 U.S.C. and the authority to seize assets and force taxpayers to forfeit property originates from Title 18, Title 26, and Title 31 of the U.S.C. 

The Federal Government is responsible for properly maintaining the chain of custody for any seized items. CI agents must be able to prove it is the same item that was seized and that the item is in the same condition as when it was seized in order for that seized item to be admissible as evidence.

Grand jury-related evidence must be kept separate from other non-grand jury evidence. Despite these clear directives, the CI has routinely ignored protocol, violating the rights of the taxpayers they are supposed to protect. 

Evidence was stored improperly

IRS-CI agents blatantly violated their own policies when it came to storing evidence. Specifically, agents violated The Federal Rules of Criminal Procedure Rule 6(e)(2) which states “grand jury material is secret and should be stored in either a lock-bar file cabinet or in a secured and locked room.”

IRS-CI offices lack Evidence Access Control Logs

The Evidence Access Control Log is a tool used to record and document all access to controlled areas where evidence is stored. This information includes who accesses the evidence, what evidence was accessed, and the specific reason for the access. While these logs are an essential piece of the chain of custody, CI managers did not feel the need to set it up. This lack of oversight can create several problems. As noted in the report:

When we asked why an Evidence Access Control Log was not being maintained, local CI management did not think the log was necessary for the type of evidence that they usually maintain, such as seized paper documents.  However, according to IRS policy, ‘in order for documents or other physical objects to be admissible as evidence, it is necessary to prove the items are in the same condition as when they were seized, since failure to maintain the evidence in its original condition could jeopardize admissibility.’  The evidence we found stored in open areas within the CI offices could result in chain of custody concerns, which could jeopardize the investigation and any subsequent court proceeding.

Given the history the IRS has in violating the basic due process rights of the American people, the Biden proposal to give the agency even more power and money are alarming to taxpayers.