Introduction
Even though my first pro bono columns had “virtual” in their titles, I am not enamored with all things virtual. I am in fact skeptical, even distrustful, of the occasional HMO email encouraging the booking of a tele-health check-up. Exactly how is my internist supposed to check my pulse, blood pressure, and draw blood samples to run labs from a phone call? No, thank you. I’ll wait until I can come back into the doctor’s office and actually meet him face to face so he can knock my funny bone to make sure my reflexes are in fine order.
Ironically, the physical checkup may illustrate quite well how different the practice of law is from the practice of medicine. While physicians diagnose and treat physical ailments, tax lawyers diagnose and treat governmental tax “ailments” embodied in paper—notices, substantiation (or the lack thereof), and pleadings. There may be times when the Low-Income Taxpayer Clinic (LITC) client’s sole exhibit is her own testimony: the difficulty of evaluating the strength or weakness of the taxpayer’s testimony without fully witnessing facial expressions and body language is an “equal opportunity handicap” that clinicians, counsel, and judges face when evaluating credibility via Zoom.
The practice of tax law—or more specifically the practice of pro bono tax law—has clearly had to pivot and adjust to the current context. So shared below are a few short conversations with IRS Counsel, a Local Taxpayer Advocate (LTA), and Rutger’s new LITC clinic director.
IRS COUNSEL’S PERSPECTIVE—“I thought you were a voice phishing scam when you called.”
I asked three people from IRS Counsel’s National Settlement Day Cadre: Monica Koch,1 Sarah Sexton Martinez, and Peter McClary a key question: “Why don’t more pro se litigants take advantage of Settlement Days and the opportunity to get free legal counsel from LITC’s? I don’t get it?”
Monica Koch explained that one of the highest barriers to resolving tax disputes is distrust and skepticism. Peter McClary added, “When we ask [pro se litigants] after the fact, they usually say they thought it was a scam and could not believe it really was the IRS calling them.”
It suddenly dawned on me. I have even chastised my own mother, “MOM, don’t worry. The IRS does not just call you out of the blue! They always send letters first.” I could easily imagine her simplifying my remark to “The IRS does not call you.” On top of that, if the taxpayer had experienced long call wait times only to be disappointed with an abrupt disconnect, the disbelief that the IRS could be on the other end of the line is quite understandable.
In a noisy world of competing sound bites, sometimes messaging ultimately falls to the lowest common denominator. When Nike says: “Just Do It” they have a multi-million-dollar budget to refine and influence the consumers’ decision-making behavior. When the IRS Counsel’s Office does it; it is a simple 1-page invitation letter written by tax lawyers, not marketers.
TAS LOCAL TAXPAYER ADVOCATE’S PERSPECTIVE—“It won’t reach the right people at the right time.”
I had another call with Michelle Breed, who serves as LTA for San Diego, CA. She organized a CA statewide VPSD on January 13–14, 2021 with all 7 LTA offices across the state of CA. Curious, I asked whether she was concerned whether there would be an overwhelming response. Typically, these events are centered around a city or region, not an entire state. An entire state of 39 million people seemed a bit much for 7 offices to handle. “Aren’t you worried that there may to be too many taxpayers wanting help, and there won’t be enough staff to handle the appointments?” Her response was surprising. If anything, her concern was the opposite, that the “word would not get out in time to the right people who need help.”
Curious about scheduling, I asked “How many appointments are you targeting? Or how much time are you allocating for each appointment?” She answered that she could only tell me what her office was doing since each office had the discretion to manage the event according to the needs of their region and staffing available. At San Diego, both she and a single Case Advocate initially assumed that they would deal with simple direct calls from taxpayers, allocating about 30 minutes to each call. As the appointments began to fill with tax representatives with “messy cases,” they changed the time allocated to an hour. As a result, San Diego managed about 24 appointments over the two-day event.
For an ordinary taxpayer, calling the IRS can be an enormously frustrating experience. Too often, it feels subjectively as if the IRS is trying to avoid the phone calls; even worse, sometimes they actually are! TAS’s 2018 Report to Congress reports that “the IRS has attempted to design [ACS] letters that artificially suppress the number of follow-up calls, even when the outcome is bad for the IRS and worse for taxpayers.”(emphasis added).2 What an amazing opportunity a virtual problem-solving day (VPSD) offers: to be able to have a human one-on-one interaction with an IRS employee troubleshooter instead of being forced to find the way through an endless maze of phone menu options with pre-recorded messages. Nonetheless, Ms. Breed’s main concern was that the people who need these days the most may not be able to take advantage of them.
LITC PERSPECTIVE—“The problem is timing. Our VPSD and VSD is around the same time as EIP2.”
Frank Agostino is a new adjunct clinic director for the Rutgers LITC in New Jersey. Coming from the private sector, he brings a refreshingly pragmatic perspective. For example, in the arena of event promotion, he understands how to send timely and targeted notices.
Most nonprofits (my clinic included) would normally use the most rudimentary free outreach methods: facebook posts or an email blast to partner social service agencies. Unfortunately, it is not the most impactful way to promote an event. Personally, my inbox is always too full. And I know when I receive an email blast from a partner social service agency, I usually give it 2 seconds to persuade me not to delete it. Frank, however, did not limit himself to the nonprofit “way of doing things.” Instead of relying on an existing email list, he took a more pragmatic approach and bought his own list of new people who may need IRS help. Apparently, there are companies who sell different types of lists created from public records. I had always wondered how AARP knew exactly when to mail out the “Welcome to AARP” package the exact year you turn 50 years old to the exact right address. Mystery solved; they bought it. And, apparently, one can also buy a federal tax lien list as well. The lien list is a spreadsheet with column headers for name, address, tax lien amount, and date of lien filing.
So to promote the NY–NJ VPSD 1/19–1/20/2021 event, Frank’s office purchased and mailed out over 4000 postcards and letters to individuals who have a federal lien between $10,000–$25,000. Genius! It apparently worked very well, because his office averaged about 2 calls a day inquiring about VPSD. But 4000 mailers! I worried (I tend to do that). 4000 targeted letters to individuals with an existing tax lien is quite a few, and who would not want free legal advice? Frank, however, was not at all worried. The event was co-sponsored by the NY County Lawyers Association (Pro Bono Program), Tax Assistance Center, Legal Services of New Jersey Tax Legal Assistance Project, and Rutgers Law School Federal Tax Clinic. Frank was sure there would be plenty of volunteers and that the pro bono community of New York and New Jersey, along with all the co-sponsors, would rise to the occasion.
So, naturally, my follow up question was, “Well then, what IS your biggest concern? If anything?” And he had two pragmatic answers: “Gina, you know my main concern is that I won’t have the [taxpayers contact info] far enough in advance to match the right volunteer to the right problem.” I understand his concern. The one uncontrollable element for these sort of events is the timing and response rate. Your program could execute everything right with letters to a targeted lien list, but there is no guarantee that recipients will open the letters. Even if they do, there is no guarantee they won’t mistake the event for a scam or as something just “too good to be true”.
The second obstacle Frank pointed out is one that no amount of marketing can solve: human nature. “The other problem is no one wants to pay attention to [a lien] until it’s a problem [a bank levy]. And even then [the event was in the middle of January] in the middle of EIP 2,3 so they’d rather ask about that than deal with something they’ve already been procrastinating about for a while.” Sigh. Yes. These are our people. We take them as they are. After all, they do have an IRS tax lien filed against them because they had failed to respond to a stream of notices about a balance due.
What Can I Do to Help?
In short, the incredible opportunity afforded for taxpayers to have a personal IRS interaction to get clarity, if not resolution to their controversies, via VSD or VPSD will require much more community involvement and publicity from trusted local sources of information. After interviewing the three different stakeholders and hosts involved in these events; it was striking that the one commonality was essentially a marketing and trust problem. So what does this have to do with you, dear reader? May I suggest that if you (or your firm) have relationships with local community news outlets or PR firms, you should consider becoming a relationship broker for your local VPSD or VSD event. If you have media contacts and would like to help overcome the “IRS scam” messaging problem, feel free to initiate a conversation with your local LITC. If you happen to be in Los Angeles, please contact me (Koreatown Youth and Community Center LITC hosts a quarterly VPSD!). If you are in a leadership position at a multicultural bar association, perhaps some members of your bar association could contextualize, translate, and suggest community news outlets or post information that their communities will see to promote the event(s). For example, many immigrant communities have community discussion boards (whether virtual or a physical corkboard at the local ethnic grocers); foreign language radio stations; foreign language print newspapers; and foreign language “yellow pages” that function as the community “water cooler.” If you have ever lived abroad as an American ex-pat, you know exactly what I mean. There are just certain unofficial places where information can be found when the country in which you live does not communicate in your native language.
Finally, the National Cadre for Settlement Days will have a National Settlement Month this March 2021 with VSDs in all 50 states. The American Bar Association, LITCs and the pro bono community will work to assist taxpayers in areas with gaps in service. Interested ABA member volunteers can contact Megan Newman at Megan.Newman@americanbar.org. LITCs should contact their local Chief Counsel offices to discuss the event. There is no expectation of continued representation. ■