The Internal Revenue Service in recent weeks has acknowledged that it targeted applicants for tax-exempt organization status based on their political viewpoint, in violation of basic First Amendment principles. That was, obviously and admittedly, a big mistake. But under a little-noticed provision of the Internal Revenue Code, citizens who claim that the IRS has made a mistake risk paying a large fine if it turns out that they are wrong. That provision, too, betrays a lack of concern for First Amendment values that should trouble all American taxpayers.
Under our Constitution, no agency is beyond criticism or reproach. To that end the First Amendment expressly protects the right to petition the government for redress of grievances. According to a law enacted in 2007 and amended in 2010, however, if your grievance is that the IRS has collected too much tax, and you claim you are entitled to a refund, the IRS can assess a 20 percent fine, based on the size of your refund claim, if it rejects your claim. In many cases, the IRS can levy this fine even though you had a good-faith basis for your refund request. For large businesses that often have multimillion-dollar disputes with the IRS, the penalty could amount to hundreds of thousands or even millions of dollars. The effect on individuals could be even more devastating, even when the dollar amounts at stake are smaller. This penalty on the right to petition has an understandably chilling effect, and is plainly unconstitutional.
