authorized for each district "a supervisor" and "inspectors" who were to be appointed by the President with the advice and consent of the Senate. 29 However, that 1791 Act had also provided "[t]hat the supervisor of each district shall appoint proper officers to have the charge and survey of the distilleries within" the district, 30 with no requirement that the Secretary's approval be obtained.

A 1794 internal revenue statute that imposed duties on carriages provided for duties to "be levied, collected, received and accounted for, by and under the immediate direction of the supervisors and inspectors of the revenue, and other officers of inspection". 31 A similar act in 1796, also imposing duties on carriages, referred to "officers or persons employed under" the supervisors and inspectors. 32 In 1798 the supervisors were authorized to hire clerks. 33 These "proper officers" (authorized in 1791), "other officers of inspection" (authorized in 1794), "officers or persons employed under” them (referred to in 1796), and clerks (authorized in 1798) were thus not appointed by the President nor by the Head of a Department.

In July 1798 Congress imposed a direct tax of $2 million, apportioned among the States, to be assessed on "dwelling houses, lands and slaves”. 34 In the same month Congress provided for the appointment of additional internal revenue personnel to perform the necessary enumerations and valuations. Act of July 9, 1798 (“An Act to provide for the valuation of Lands and Dwelling-Houses, and the enumeration of Slaves within the United States"), ch. 70, sec. 1, 1 Stat. 580. For revenue purposes Congress subdivided the States into various "divisions", id., and provided that the President would appoint a "commissioner" for each division, id. sec. 3,

29 Act of Mar. 3, 1791, ch. 15, sec. 4, 1 Stat. 199.

30 Id. sec. 18, 1 Stat. 203 (emphasis added); see also Act of June 5, 1794, ch. 48, sec. 3, 1 Stat. 377 (referring to "the several officers of inspection acting under" the supervisors).

31 Act of June 5, 1794, ch. 45, sec. 2, 1 Stat. 374.

32 Act of May 28, 1796, ch. 37, sec. 11, 1 Stat. 481.

33 Act of July 11, 1798, ch. 71, sec. 2, 1 Stat. 592; see also Act of Apr. 6, 1802, ch. 19, sec. 5, 2 Stat. 150. In 1805 the Secretary was authorized to employ clerks to serve under the direction of the supervisor of the district of South Carolina. See Act of Jan. 30, 1805, ch. 11, sec. 1, 2 Stat. 311.

34 Act of July 14, 1798 (“An act to lay and collect a direct tax within the United States"), ch. 75, secs. 1 and 2, 1 Stat. 597, 598. Section 8 of Article I of the Constitution permits Congress "To lay and collect Taxes"; but before the ratification of the 16th Amendment, "No capitation, or other direct, Tax shall be laid, unless in proportion to the Census or Enumeration herein before directed to be taken."

1 Stat. 584. (Each of the commissioners was authorized to appoint a clerk, id. sec. 5; and as is noted below, each commissioner was authorized in 1800 to appoint his own. "assistant".) The commissioners within the several States were authorized collectively to “divide their respective states into a suitable and convenient number of assessment districts, within each of which they shall appoint one respectable freeholder to be principal assessor, and such number of respectable freeholders to be assistant assessors, as they shall judge necessary for carrying this act into effect". Id. sec. 7 (emphasis added). These assessors and assistant assessors (appointed not by the President or the Secretary but by the Presidentially appointed commissioners) were "to value and enumerate the said dwelling-houses, lands and slaves", id. sec. 8, 1 Stat. 585, in order to establish the tax base against which the tax would be collected. One commentator observed:

The tax on land, dwellings, and slaves (1798) * * * involved a wide area of official discretion. It required a valuation of property *** for which Congress formulated some general rules that left the assessment largely to the judgment of local assessors-but subject to an administrative review.

Leonard White, The Federalists: A Study in Administrative History, 452 (1948).

For the collection itself, the 1798 Act provided that the supervisors (Presidentially appointed) were "authorized and required to appoint such and so many suitable persons in each assessment district within their respective districts, as may be necessary for collecting the said tax". Act of July 14, 1798, ch. 75, sec. 4, 1 Stat. 599. If a property owner did not pay the tax upon demand, then the "collector" (again, appointed not by the President or the Secretary but by the Presidentially appointed supervisors) 35 could "proceed to collect the said taxes, by distress and sale of the goods, chattels or effects of the persons delinquent". Id. sec. 9, 1 Stat. 600. Another statute from 1798 allowed a property owner who disputed a valuation to appeal the matter to the principal assessor. Act of July 9, 1798, ch. 70, secs. 19 and 20, 1 Stat. 588. (No provision is made for a further appeal to the Presidentially appointed commissioner, but the commissioner did

35 The 1802 Roll, at 261, confirms that the "collectors and auxiliary officers [were] appointed by the supervisors".

have the power "to revise, adjust and vary the valuations * * * as shall appear to be just and equitable". Id. sec. 22, 1 Stat. 589.36) The right of appeal from an assessor's valuation did have an exception: Where a property owner had submitted a property list that a court found to be "false and fraudulent", the assessor was authorized to make a valuation and enumeration "from which there shall be no appeal”.

This 1798 Act provided for an additional official appointed neither by the President nor by the Secretary: The supervisors and inspectors (i.e., created in the 1791 and 1794 Acts) were authorized "to depute one skilful and fit person, in each assessment district, to be surveyor of the revenue". Id. sec. 24 (emphasis added). 37 A "surveyor of the revenue" was a position different from the "surveyors" appointed by the President pursuant to the original 1789 Act. The principal duties of the surveyor of the revenue were: (1) to preserve "the records of the lists, valuations and enumerations" made pursuant to the Act; (2) to make appropriate charges and credits when property was sold; (3) to apportion value when property was divided; (4) to value and assess newly built houses; and (5) subject to the approval of the (Presidentially appointed) inspector of the survey, to reduce valuations when property was damaged or destroyed. Id. sec. 25. (In 1800 the surveyor of the revenue was also empowered, when property had been omitted from the lists, to "make a list and valuation thereof". 38)

In 1800 the Presidentially appointed commissioners were permitted to hire "such assistants as they shall find necessary, and appoint for that purpose", i.e., for the purpose of completing additions to or reductions of assessments that the commissioner has directed. 39

In sum, the early internal revenue statutes authorized the employment not only of Presidentially appointed supervisors and inspectors but also of the following personnel who were not appointed by the President or the Secretary (and whose positions were not temporary, like the deputies'):

36 See, to the same effect, Act of Jan. 2, 1800, ch. 3, sec. 1, 2 Stat. 4.

37 See also Act of Jan. 30, 1805, ch. 11, sec. 2, 2 Stat. 312.

38 Act of May 13, 1800, ch. 60, sec. 1, 2 Stat. 80.

39 Act of Jan. 2, 1800, ch. 3, sec. 2, 2 Stat. 4 (emphasis added). See also, to the same effect, Act of May 10, 1800, ch. 53, sec. 2, 2 Stat. 72.

"proper officers to have the charge and survey of the distilleries", Act of Mar. 3, 1791, ch. 15, sec. 18;

"officers or persons employed under" the supervisors and inspectors, Act of May 28, 1796, ch. 37, sec. 11;

"clerks" hired by the supervisors and commissioners, Act of July 11, 1798, ch. 71, sec. 2; Act of Apr. 16, 1802, ch. 19, sec. 5;

• "principal assessors" and "assistant assessors", Act of July 9, 1798, ch. 70, sec. 7;

"collectors", Act of July 14, 1798, ch. 75, secs. 4, 9;

"surveyors of the revenue", Act of July 9, 1798, ch. 70, sec. 24; and

"assistants" to the commissioners, Act of Jan. 2, 1800, ch. 3, sec. 2.

The 1802 Roll, at 280-288, lists 16 supervisors and 24 inspectors, thus totaling 40 Presidentially appointed internal revenue personnel. It also lists 40 clerks, 361 collectors, 34 collectors' clerks, and 102 "Auxiliary officers" (apparently a generic term for the other personnel authorized in the statutes). The "collectors and auxiliary officers, appointed by the supervisors", id. at 261 (emphasis added), are significantly more numerous than the Presidentially appointed supervisors and inspectors.

E. Subsequent appointment of internal revenue personnel

In his first inaugural address, President Thomas Jefferson called for the repeal of the original internal revenue taxes, and that repeal took place in 1802. 40 Thereafter there were four iterations of the internal revenue tax, before the modern regime that is still in place today; 41 and the pattern of appointments that had been set for internal revenue in the late 18th century was followed in those four subsequent internal revenue statutes. That is, non-appointed personnel hired by persons inferior to the Secretary of the Treasury had more than ministerial responsibility in internal revenue statutes enacted during the War of 1812, 42 during the Civil

40 See Act of Apr. 6, 1802, ch. 19, 2 Stat. 148.

41 See Lucius A. Buck, "Federal Tax Litigation and the Tax Division of the Department of Justice", 27 Va. L. Rev. 873, 875-877 (1941).

42 See Act of July 22, 1813, ch. 16, secs. 3, 8, 20-22, 3 Stat. 26, 27, 30, 31 (Assistant Assessors could correct fraudulent property lists without any taxpayer appeal right; Deputy Collectors could seize and sell personal and real property).

War and Reconstruction, 43 after the ratification of the 16th Amendment, 44 and in connection with the first World War. 45 The pattern set in the late 18th century persists today: The general authority of the Secretary of the Treasury is described in 31 U.S.C. sec. 321 (2006), and it does not include employment or appointment of internal revenue personnel. "The Secretary of the Treasury is authorized to appoint *** such attorneys and other officers and employees as he may deem necessary" in the Customs Service for external revenue collection, 19 U.S.C. sec. 2072(a) (2006); but the Secretary does not generally make appointments for internal revenue collection. Rather, "the Commissioner of Internal Revenue is authorized to employ such number of persons as the Commissioner deems proper for the administration and enforcement of the internal revenue laws". Sec. 7804(a).

II. The Internal Revenue Service Office of Appeals

A. The legal basis for the Office of Appeals

The Office of Appeals is a component of the IRS within the Department of the Treasury. The Office of Appeals was not created by the CDP provisions at issue here (i.e., sections 6320 and 6330), which were added to the Internal Revenue

43 See Act of Aug. 5, 1861, ch. 45, secs. 11, 34, 51, 12 Stat. 296, 303, 310 (Assistant Assessors are described with less detail; Assistant Collectors could levy upon property and could arrest and imprison taxpayers who refused to testify); Act of July 1, 1862, ch. 119, secs. 3, 5, 9, 12 Stat. 433-435 (Assistant Assessors and Deputy Collectors with powers similar to those in 1813); Act of June 30, 1864, ch. 173, secs. 8, 10, 13, 14, 52, 118, 13 Stat. 224–227, 242, 282 (Assistant Assessors and Deputy Collectors were given powers similar to those in 1862 (but arrest power was replaced with summons authority and power to apply to a judge for arrest for contempt), and both could also administer oaths and take evidence; Assistant Assessor could adjust taxable income upward "if he shall be satisfied" that income was understated, with appeal of any such increase to the assessor); Act of Mar. 3, 1865, ch. 78, 13 Stat. 480 (Assistant Assessor can adjust taxable income upward "if he has reason to believe" that income is understated); Act of July 13, 1866, ch. 184, secs. 4, 9, 14 Stat. 99, 126, (Assistant Assessors could give permits for cigarmaking; Deputy Collectors could hold cotton until tax on it had been paid); Act of Mar. 2, 1867, ch. 169, secs. 19, 20, 14 Stat. 482 (any internal revenue officer could be authorized to seize property and could seize barrels if they had reason to believe that taxes on them had not been paid); Act of July 14, 1870, ch. 255, sec. 36, 16 Stat. 271 (weighers, gaugers, measurers, and inspectors).

44 See Act of Oct. 3, 1913, ch. 16, 38 Stat. 169, 179 (a Deputy Collector could demand that a taxpayer show cause why the income amount on the return should not be increased and, if no return or a false or fraudulent return had been provided, could make a return based on the best information he could obtain, which return was then to be held prima facie good and sufficient for all legal purposes).

45 See Act of Sept. 8, 1916, ch. 463, secs. 16-22, 39 Stat. 774–776 (Deputy Collector had powers similar to those in 1913); Act of Feb. 24, 1919, ch. 18, sec. 1317, 40 Stat. 1146–1148 (Deputy Collector had powers similar to those in 1913 and 1916, and could administer oaths and take evidence).