Defense Methodology
+-----------------------------------------------------------------+
| | Federal | Administrative | Paperwork |
|Important | Register | Procedure | Reduction |
|Questions | Act | Act | Act |
| | (FRA) | (APA) | (PRA) |
|-------------------------+----------+----------------+-----------|
|What was intent of law? | | | |
|-------------------------+----------+----------------+-----------|
|What does law require? | | | |
|-------------------------+----------+----------------+-----------|
|Has IRS complied? | | | |
|-------------------------+----------+----------------+-----------|
|What if IRS has not? | | | |
+-----------------------------------------------------------------+
1
Table of Laws and Key Words
+-----------------------------------------------------------------------+
| | Internal | Federal | Administrative | Paperwork |
| | Revenue | Register | Procedure | Reduction |
| | Code | Act | Act | Act |
| | (IRC) | (FRA) | (APA) | (PRA) |
|---------------+----------+-------------+----------------+-------------|
| Statutes | 26 USC | 44 USC 1501 | 5 USC 551 | 44 USC 3501 |
|---------------+----------+-------------+----------------+-------------|
| Date Enacted | 10/22/86 | 7/26/35 | 6/11/46 | 12/11/80 |
|---------------+----------+-------------+----------------+-------------|
| Regulations | | | | |
|---------------+----------+-------------+----------------+-------------|
| Forms | | | | |
|---------------+----------+-------------+----------------+-------------|
| Instructions | | | | |
|---------------+----------+-------------+----------------+-------------|
| Other, e.g. | | | | |
| Schedules | | | | |
+-----------------------------------------------------------------------+
2
Definitions of Key Words
a STATUTE is a law passed by Congress
a REGULATION is a formal rule promulgated and codified
in the Code of Federal Regulations (CFR)
a FORM is an information collection request (ICR)
(like Form 1040, Form 1040X, Form 1040A, etc.)
INSTRUCTIONS are published rules for completing forms
(like the Instructions for Form 1040)
3
What is the "Code of Federal Regulations"?
... complete codifications of the documents of each
agency of the Government having general applicability
and legal effect, issued or promulgated by the agency
by publication in the Federal Register, or by filing
with the Administrative Committee, and are relied upon
by the agency as authority for, or are invoked or used
by it in the discharge of its activities or functions,
and are in effect ...
[44 U.S.C. 1510]
4
What is "general applicability"?
... every document or order which prescribes a penalty
has general applicability and legal effect.
[44 U.S.C. 1505(a)]
5
What are the requirements of the Federal Register Act?
Documents to be published in the Federal Register include:
* proclamations and executive orders
* documents having general applicability and legal effect
* documents required to be published by Congress
For purposes of this chapter (44 USC 1501 et seq.) every document
or order which prescribes a penalty has general applicability and
legal effect.
[44 U.S.C. 1505]
6
Has the IRS complied with the Federal Register Act?
* Instructions for Form 1040 prescribe penalties but
have never been published in the Federal Register
* Form 1040 itself has never been published in the
Federal Register
* Schedules which attach to Form 1040 have never
been published in the Federal Register
7
Does the Federal Register Act protect the public?
A document required to be published in the Federal
Register is not valid as against a person who has not
had actual knowledge of it until the duplicate
originals or certified copies of the document have been
filed with the Office of the Federal Register and a
copy made available for public inspection.
[44 U.S.C. 1507]
8
What are the requirements of the APA?
Each agency shall separately state and currently publish in the
Federal Register for the guidance of the public:
(A) descriptions of its central and field organization and the
established places at which, the employees from whom, and the
methods whereby, the public may obtain information, make
submittals or requests, or obtain decisions; ...
(C) rules of procedure, descriptions of forms available or the
places at which forms may be obtained and instructions as to the
scope and contents of all papers, reports or examinations.
(D) substantive rules of general applicability adopted as authorized
by law, and statements of general policy or interpretations of
general applicability formulated and adopted by the agency; and
(E) each amendment, revision, or repeal of the foregoing.
[5 U.S.C. 552]
9
How does the APA define a "rule"?
"rule" means the whole or a part of an agency statement
of general or particular applicability and future
effect designed to implement, interpret, or prescribe
law or policy or describing the organization,
procedure, or practice requirements of an agency ....
[5 U.S.C. 551(4)]
10
What are the APA requirements for making rules?
* general notice of proposed rule making published
in the Federal Register
* an opportunity for interested persons to
participate in the rule making process
* publication or service of a final substantive rule
30 days before its effective date
* each agency shall give an interested person the
right to petition for the issuance, amendment, or
repeal of a rule
[5 U.S.C. 553]
11
Has the IRS complied with the APA?
* neither Forms 1040 (1040X, 1040EZ, 1040A) nor their
instructions have ever been published in the Federal
Register, whether
* as a form to be completed by 10 or more persons,
* as instructions as to the scope and content of reports,
* as proposed or final substantive rules, or
* as amendments, revisions, or repeals of the foregoing
* opportunities have not been published for interested persons
to participate in making, revising, or repealing rules for
Form 1040 or its instructions from 1946 until now
* the IRS central and field organizations have not been
published in the Federal Register as such for 15 years
* amendments and revisions to the IRS central and field
organizations have not been published as such for 15 years
12
Does the APA protect the public?
... a person may not in any manner be required to
resort to, or be adversely affected by, a matter
required to be published in the Federal Register and
not so published.
[5 U.S.C. 552(a)(1)]
13
What are the purposes of the Paperwork Reduction Act?
* minimize the Federal paperwork burden
* minimize the cost to the Federal government of collecting,
maintaining, using and disseminating information
* maximize the usefulness of the information collected
* coordinate and integrate Federal information policies and
practices
* eliminate unnecessary duplication
* ensure that automated data processing and telecommunications
technologies are acquired and used by the Federal government
* to improve its services and program management
* to increase productivity
* to reduce the paperwork burden for the public
* to "regulate the regulators" by assigning enforcement
responsibilities to the public at large
[44 U.S.C. 350l]
14
What are the requirements of the PRA?
* submit recordkeeping requirements and information collection
requests (ICR's) to the Office of Management and Budget (OMB)
* obtain OMB approval of these requirements and requests
* display an OMB "control number" and its expiration date
* on the face of information collection requests
* in the text of recordkeeping requirements
-or-
* display a printed statement why none is required
* there is a 3-year limit on any OMB control number
[44 U.S.C. 3507]
15
What is a "recordkeeping requirement"?
The term "recordkeeping requirement" means a
requirement imposed by an agency on persons to maintain
specific records.
[44 U.S.C. 3502]
What is an "information collection request"?
The term "information collection request" means a
written report form, application report form, schedule,
questionnaire, reporting or recordkeeping requirement,
collection of information requirement, or other similar
method calling for the collection of information.
[44 U.S.C. 3502]
16
How do the PRA regulations define "display"?
"Display" is defined to mean:
In the case of forms, questionnaires, instructions, and other
written information collection requests individually distributed
to potential respondents, to print the OMB control number and,
unless OMB determines it to be inappropriate, the expiration date
in the upper right hand corner of the front page of the request.
[5 C.F.R. 1320.7(e)(1)]
17
Has the IRS complied with the PRA?
* the published table of OMB control numbers for the IRC does
not display any expiration dates in the CFR regulations
* the Forms 1040 fail to display expiration dates or any
explanations why these dates are missing
* most of the regulations fail to display OMB control numbers
and expiration dates in the body of their text
* only two (2) regulations could be found which display OMB
control numbers in the body of their text:
* 26 CFR 1.860-2 and 26 CFR 1.1441-2
* the instructions for Form 1040 display neither the required
OMB control numbers nor the required expiration dates
* the instructions for Form 1040 fail to display any statement
why OMB control numbers and expiration dates are not required
18
Does the PRA protect the public?
Notwithstanding any other provision of law, no person
shall be subject to any penalty for failing to maintain
or provide information to any agency if the information
collection request involved was made after December 31,
1981, and does not display a current control number
assigned by the Director of OMB, or fails to state that
such request is not subject to this chapter.
[44 U.S.C. 3512]
19
In the words of President Carter ...
"The act I'm signing today will not only regulate the regulators,
but it will also allow the President and the OMB to gain better
control over the Federal Government's appetite for information
from the public. For the first time, it allows OMB to have the
final word on many of the regulations issued by the Government.
It also ensures that the public need not fill out forms nor keep
records which are not previously approved by OMB."
Presidential Documents
Administration of Jimmy Carter
December 11, 1980 at 2795
20
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U.S.A. v. Vroman