Advisory Committee on Tax Exempt and Government Entities (ACT ...

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Governmental Relationship and Communication Between the Internal Revenue Service and Indian Tribal Governmentspotential impact of relevant proposals.” Executive Memorandum of April 29, 1994, onGovernment-to-Government Relations with Native American Tribal Governments.If a regulation, policy, or program is developed without meaningful consultation andcollaboration, the affected Tribes are likely to conclude that the federal agency hasfailed to meet its obligations under federal law. The development of a regulation, policy,or program without meaningful consultation and collaboration also is likely to result inskepticism on the part of the Tribes regarding whether the regulation, policy, or programwill be beneficial for them.The first group of public reports of the ACT issued in June 2002 included a reportrecommending that the IRS develop a written consultation policy. The IRS immediatelybegan to implement that recommendation. ITG held 12 regional “listening” meetings in2003 to secure input and recommendations from Tribal leaders and representatives onthe scope of such a policy and on the process to be used in its development andimplementation. Pursuant to a suggestion emanating from these meetings, a jointIRS/Tribal committee was created to prepare an initial draft policy. ITG sent the draftpolicy to all of the Tribal Governments in September 2004, with a request that additionalfeedback be provided to the working group by October 16, 2004. ITG informed theTribal Governments that the working group would be meeting shortly thereafter toattempt to finalize the document. A copy of the draft consultation policy and transmittalletter sent to Tribal leaders is attached as Exhibit E.Among other provisions, the draft consultation policy that was circulated in September2004 stated that it would apply “to all IRS programs, policy initiatives, administrativeguidance, rule making or similar activities or actions . . . arising out of Title 25, Title 26or Title 31 of the United States Code that may affect federally-recognized Indian TribalGovernments.” The draft policy defined “consultation” as follows:“Consultation” means the direct and interactive involvementof Indian Tribes in the development and implementation ofIRS actions. Consultation is the active, affirmative processof identifying and seeking input from Indian Tribes, andconsidering their interests as a necessary and integral partof IRS’s decision-making process. . . . The goal is to providean opportunity for input and feedback that maximizes theability to meet mutual needs, and minimizes the potential forunintended adverse impacts.The draft policy further provided that “[e]ach IRS office, division and department and allIRS personnel are subject to and bound by this consultation policy,” and that“Regulations, Revenue Procedures and Revenue Rulings are examples, but not anexhaustive list, of the types of actions that would be covered by the consultationprocess.”The IRS has not yet adopted a consultation policy. One reason for the delay is that itwas discovered after preparation of the draft policy that the Department of the TreasuryADVISORY COMMITTEE ON TAX EXEMPT AND GOVERNMENT ENTITIES (ACT) June 11, 2008 10
Governmental Relationship and Communication Between the Internal Revenue Service and Indian Tribal Governmentshas a consultation policy applicable to the development of regulations. At our request,the Director of ITG provided us with a copy of Treasury’s consultation policy, which weunderstand has not been made generally available to the public or to the TribalGovernments. The copy that we were provided, which is not dated, is attached asExhibit F. The Treasury Department policy was intended to implement both ExecutiveOrder 13132 regarding federalism and Executive Order 13175 regarding consultationwith Tribal Governments.With respect to Tribal Governments, the Treasury Department consultation policy istriggered only by regulations projects “that have substantial direct effects on one ormore Indian tribes, on the relationship between the Federal Government and Indiantribes, or on the distribution of power and responsibilities between the FederalGovernment and Indian tribes,” and then only if the Treasury Department determinesthat consultation is required. We understand that the Treasury Department never hasdetermined that consultation is required under this policy, including with respect to thedevelopment of “integral part” and Pension Protection Act regulations that weunderstand are currently under development and the development of regulationsinterpreting the “essential governmental function” requirement of Section 7871 of theCode for the issuance of tax-exempt bonds by Tribal Governments that recentlyresulted in the issuance of an advance notice of proposed rulemaking.We understand that the IRS is currently working to gain the Treasury Department’sapproval of procedures that will allow the IRS to interact with Tribes on taxadministration matters in a manner consistent with Executive Order 13175. The IRShas stated that the Treasury Department will remain the Department specified forconsultation on regulatory matters.Although the IRS does not currently have a written consultation policy, ITG holdsperiodic “listening” meetings with ITG representatives to provide Tribal representativesthe opportunity to raise questions and offer suggestions on methods to enhance federaltax administration affecting Tribes. Up to four such meetings are held each year invarious locations throughout the country. Meetings are announced on ITG’s websiteand in ITG’s regional newsletters. In addition, the Tribes located in the area of eachmeeting receive a direct mailing to the Tribal leader. ITG does not circulate agendas forthese meetings, because ITG does not want to “taint” the process by pre-ordaining thesubject matter of the meetings. According to ITG, the primary purpose of the meetingsis to listen to the Tribes’ concerns about matters of federal tax administration and taxpolicy.In addition to the listening meetings, ITG has notified Tribes on its website aboutopportunities for “issue-based consultation.” Such consultation may be invoked by arequest by e-mail to the Director of ITG by a Tribe or group of Tribes with respect to anyissue or IRS action that may impact, or is impacting such governments, or where aTribe desires to seek the input of the IRS on the potential federal tax consequences ofeconomic opportunities, local laws, agreements, or similar matters that may affect, or beof interest to, the Tribe.ADVISORY COMMITTEE ON TAX EXEMPT AND GOVERNMENT ENTITIES (ACT) June 11, 2008 11
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