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Michael Haugen | September 12, 2017
By a unanimous voice vote last Tuesday, the House of Representatives approved a measure aimed at limiting the ability of the Internal Revenue Service to utilize asset forfeiture in “structuring” cases unless the property in question was obtained from an illegal source. The bill—the Clyde-Hirsch-Sowers RESPECT Act—now awaits consideration by the Senate.
Asset forfeiture has come under withering scrutiny in recent years, as critics from across the ideological spectrum have raised concerns about law enforcement’s ability to use the process to seize, keep, and repurpose property on mere suspicion it was involved in criminal activity—often without first levying charges or securing a criminal conviction.
While forfeiting an individual’s property without having proved any sort of wrongdoing on their part is troubling in itself, the use of civil forfeiture in structuring cases has been especially pernicious. Structuring arises as a consequence of regulatory actions passed under the Bank Secrecy Act, which requires financial institutions to report transactions in excess of $10,000 to the IRS; this is meant to combat organized money laundering. In order to defeat that requirement and conceal their activities, bad actors attempt to make –or “structure”—multiple deposits of less than $10,000 at any given time.
The problem? While criminals certainly have cause to make several small deposits to knowingly circumvent the law, the law-abiding may have legitimate reasons for doing so as well that have nothing to do with thumbing their nose at the IRS. Many are small business owners running cash transactions. Others, for purposes of liability insurance, limit themselves to keeping $10,000 in cash on hand, and regularly deposit anything in excess of that. Such people are doing nothing wrong, but authorities nonetheless treat their actions as per se suspicious, if not outright illegal. Otherwise innocent people have cumulatively lost millions to this process.
These sorts of situations demonstrate the necessity of crafting law that clearly delineates between the bad and benign, lest important constitutional safeguards become eroded through an arbitrary practice by those who wield power. Recent findings made by the Treasury’s inspector general lend credence to this: In a remarkable 91 percent of sampled cases, anti-structuring laws were being used by the IRS to confiscate assets from individuals and businesses found to have obtained their income legally.
The RESPECT Act would help prevent such occurrences from happening in the future. It requires that property subject to seizure must have been derived from an illegal source, or funds structured for the purpose of concealing criminal activity. Further, it requires authorities to make good-faith efforts to notify property owners of a seizure, allows for one 30-day extension of this notice requirement, and accords those with property interests the right to a post-seizure hearing.
Federal forfeiture laws are among the most permissive in the country, allowing billions to be seized annually from people who often aren’t proven to have done anything wrong. Policies aimed at curbing the worst of these abuses are welcome, but much remains to be done.