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IJ Works Wonders: IJ Takes on the IRS and Wins: All Our Loving, IJ Will Send to You

As part of the Institute for Justice’s 30th Anniversary celebration (1991-2021), our “IJ Works Wonders” series looks back on IJ cases that fundamentally transformed the law and the lives of our clients.

IJ often fights on behalf of entrepreneurs harmed by needless occupational licensing imposed by state legislatures. But we are not afraid to take on unreasonable regulations by federal administrative agencies either. So, when the IRS announced a nationwide licensing scheme for every tax preparer in America, IJ decided to square off against one of the most-feared federal agencies to defend the economic liberty of mom-and-pop preparers.

In Loving v. IRS, IJ represented three independent tax preparers—Sabina Loving of Chicago, Illinois, Elmer Kilian of Eagle, Wisconsin, and John Gambino of Hoboken, New Jersey—who would be harmed by this IRS overreach.

Sabina was a client of IJ’s Clinic on Entrepreneurship at the University of Chicago Law School, which had helped her open a storefront tax preparation business to serve her neighbors in Chicago’s impoverished South Side. Elmer, a Korean war veteran, hung a wooden “Taxes” shingle in front of his house each winter, and prepared taxes for friends, neighbors and acquaintances on his dining room table. John was a Certified Financial Planner who wanted to offer a full suite of financial services to his clients.

The costs imposed by this heavy-handed licensing scheme would have forced each of them to lay off seasonal employees or stop preparing taxes altogether. That was no accident—raising costs and increasing barriers to entry were the very purposes for these regulations, which were lobbied for heavily by incumbent firms like H&R Block and professional associations like the American Institute of Certified Public Accountants. As The Wall Street Journal explained: “Cheering the new regulations are big tax preparers like H&R Block, who are only too happy to see the feds swoop in to put their mom-and-pop seasonal competitors out of business.”

Uniquely, IJ’s legal arguments in the case focused not on the U.S. Constitution, but on the statutory basis for IRS’s actions—or rather, the absence of a statutory basis. The IRS had tried to pull a fast one. The statute they relied on to justify their supposed licensing power was the 1884 “Dead Horse Act,” which provided compensation to soldiers whose horses had been killed in the Civil War and on the frontier. This statute not only predated the IRS; it predated the income tax! Unsurprisingly, then, the statute didn’t mention tax preparers or describe what they do as being subject to regulation.

Fortunately, both the U.S. District Court in D.C. and the D.C. Circuit saw this for the naked power grab it was and struck it down as ultra vires, which means it was “beyond the powers” of the IRS. As the D.C. Circuit explained in its 2014 opinion: “If we were to accept the IRS’s interpretation of Section 330, the IRS would be empowered for the first time to regulate hundreds of thousands of individuals in the multi-billion dollar tax-preparation industry. Yet nothing in the statute’s text or the legislative record contemplates that vast expansion of the IRS’s authority.”

This was a tremendous victory for independent tax preparers, who could not afford to continue to compete with the big industry players, and for taxpayers, who remain able to hire the taxpayer of their choice, and not be limited to only IRS-approved preparers. In the wake of the victory, Sabina Loving testified about how overregulation harms minorities before the Senate Subcommittee on Oversight, Agency Action, Federal Rights and Federal Courts. While Elmer and John have since retired, Sabina continues to operate Loving Tax Service in her neighborhood on the South Side of Chicago.

Since then, our victory has been cited in nearly 50 court opinions—primarily by federal courts in Washington, D.C., where many administrative challenges are brought—about the powers of administrative agencies being constrained by delegations of statutory authority. It has been cited in opinions striking down everything from the CDC’s national eviction moratorium to a Department of Health & Human Services regulation requiring drug manufacturers to disclose the wholesale cost of drugs in television advertisements.

Meanwhile, despite the best efforts of the IRS and the Treasury Department to get Congress to pass a law authorizing them to license tax preparers, no such bill has passed. Tax preparers like Sabina Loving and thousands of others remain free to offer their service to the public without an IRS permission slip, and taxpayers remain free to choose who they’d like to help them prepare their tax returns.

Dan Alban is an IJ senior attorney.

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