Ca. Tax Lawyer 2017, VOLUME 26, NUMBER 1

Gap Between Tax and Sanctions Law Blocks Lifesaving Aid1

By Kay Guinane2 & Cherie Evans3


This paper (which was originally published by Tax Analysts in Tax Notes, Oct. 10, 2016, pp. 289-298, and is reprinted here with permission) provides background and analysis to support a review of the gap between Treasury’s redress procedures for individuals, charities, and other entities designated as specially designated global terrorists (SDGT) or specially designated terrorists (SDT) and Internal Revenue Code requirements that charitable assets be used solely for charitable purposes. This paper notes deficiencies in the current redress procedures, analyzes relevant court cases, and explains why regulatory review is needed to address the gap. It focuses only on charities that are entitled to protection under the U.S. Constitution, which is a small subset of the total universe of persons subject to designation.

The legal gap arises in part because of the limited redress procedures provided in current sanctions regulations4 governing the procedures used by individuals, charities, and entities to challenge designation and placement on Treasury and other sanctions lists. The process limits the applicant to making a written request to the agency to reconsider its decision. Although the petitioner can request a meeting with the Treasury Office of Foreign Assets Control (OFAC), the agency is not required to grant it. While OFAC must respond in writing, there is no deadline for when that must happen and no formal process for how it makes its determination. While the process is underway, the assets of the person or entity challenging designation are frozen (blocked).

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