[Senate Hearing 116-421]
[From the U.S. Government Publishing Office]
S. Hrg. 116-421
NOMINATIONS OF DAVID FABIAN BLACK
AND EMIN TORO
=======================================================================
HEARING
before the
COMMITTEE ON FINANCE
UNITED STATES SENATE
ONE HUNDRED SIXTEENTH CONGRESS
FIRST SESSION
on the
NOMINATIONS OF
DAVID FABIAN BLACK, TO BE DEPUTY COMMISSIONER, SOCIAL SECURITY
ADMINISTRATION; AND EMIN TORO, TO BE A JUDGE OF THE UNITED STATES TAX
COURT
__________
MAY 9, 2019
__________
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Printed for the use of the Committee on Finance
_________
U.S. GOVERNMENT PUBLISHING OFFICE
43-844-PDF WASHINGTON : 2021
COMMITTEE ON FINANCE
CHUCK GRASSLEY, Iowa, Chairman
MIKE CRAPO, Idaho RON WYDEN, Oregon
PAT ROBERTS, Kansas DEBBIE STABENOW, Michigan
MICHAEL B. ENZI, Wyoming MARIA CANTWELL, Washington
JOHN CORNYN, Texas ROBERT MENENDEZ, New Jersey
JOHN THUNE, South Dakota THOMAS R. CARPER, Delaware
RICHARD BURR, North Carolina BENJAMIN L. CARDIN, Maryland
JOHNNY ISAKSON, Georgia SHERROD BROWN, Ohio
ROB PORTMAN, Ohio MICHAEL F. BENNET, Colorado
PATRICK J. TOOMEY, Pennsylvania ROBERT P. CASEY, Jr., Pennsylvania
TIM SCOTT, South Carolina MARK R. WARNER, Virginia
BILL CASSIDY, Louisiana SHELDON WHITEHOUSE, Rhode Island
STEVE DAINES, Montana MAGGIE HASSAN, New Hampshire
TODD YOUNG, Indiana CATHERINE CORTEZ MASTO, Nevada
Kolan Davis, Staff Director and Chief Counsel
Joshua Sheinkman, Democratic Staff Director
(ii)
C O N T E N T S
----------
OPENING STATEMENTS
Page
Grassley, Hon. Chuck, a U.S. Senator from Iowa, chairman,
Committee on Finance........................................... 1
Wyden, Hon. Ron, a U.S. Senator from Oregon...................... 1
CONGRESSIONAL WITNESSES
Hoeven, Hon. John, a U.S. Senator from North Dakota.............. 3
Cramer, Hon. Kevin, a U.S. Senator from North Dakota............. 4
ADMINISTRATION NOMINEES
Black, David Fabian, nominated to be Deputy Commissioner, Social
Security Administration, Baltimore, MD......................... 4
Toro, Emin, nominated to be a judge of the United States Tax
Court, Washington, DC.......................................... 6
ALPHABETICAL LISTING AND APPENDIX MATERIAL
Black, David Fabian:
Testimony.................................................... 4
Prepared statement........................................... 25
Biographical information..................................... 26
Responses to questions from committee members................ 30
Cramer, Hon. Kevin:..............................................
Testimony.................................................... 4
Grassley, Hon. Chuck:
Opening statement............................................ 1
Prepared statement........................................... 40
Hoeven, Hon. John:
Testimony.................................................... 3
Toro, Emin:
Testimony.................................................... 6
Prepared statement........................................... 41
Biographical information..................................... 42
Responses to questions from committee members................ 52
Wyden, Hon. Ron:
Opening statement............................................ 1
Prepared statement........................................... 53
(iii)
NOMINATIONS OF DAVID FABIAN BLACK,
TO BE DEPUTY COMMISSIONER,
SOCIAL SECURITY ADMINISTRATION;
AND EMIN TORO, TO BE A JUDGE OF THE UNITED STATES TAX COURT
----------
THURSDAY, MAY 9, 2019
U.S. Senate,
Committee on Finance,
Washington, DC.
The hearing was convened, pursuant to notice, at 9:33 a.m.,
in room SD-215, Dirksen Senate Office Building, Hon. Chuck
Grassley (chairman of the committee) presiding.
Present: Senators Crapo, Thune, Portman, Daines, Wyden,
Cantwell, Menendez, Carper, Cardin, Brown, Hassan, and Cortez
Masto.
Also present: Republican staff: Jeffrey Wrase, Deputy Staff
Director and Chief Economist; Nicholas Wyatt, Tax,
Infrastructure, and Nominations Professional Staff Member; and
Mark Warren, Chief Tax Counsel. Democratic staff: Joshua
Sheinkman, Staff Director; Ian Nicholson, Investigator; Sam
Conchuratt, Assistant to the Staff Director; and Tom Klouda,
Senior Domestic Policy Advisor.
OPENING STATEMENT OF HON. CHUCK GRASSLEY, A U.S. SENATOR FROM
IOWA, CHAIRMAN, COMMITTEE ON FINANCE
The Chairman. The meeting will come to order.
I am going to put my statement in the record to save time,
and I will call on Senator Wyden for his opening statement at
this point.
[The prepared statement of Chairman Grassley appears in the
appendix.]
OPENING STATEMENT OF HON. RON WYDEN,
A U.S. SENATOR FROM OREGON
Senator Wyden. Thank you very much, Mr. Chairman. These are
the issues that we work on closely together, and I look forward
to doing that.
We will be meeting today to discuss two important
nominations: David Black, nominated to be Deputy Social
Security Commissioner; and Emin Toro, nominated to serve as a
judge on the United States Tax Court.
I am going to be brief, but a couple of quick comments.
With respect to Mr. Black, when you are talking about Social
Security, you are talking about a lifeline for 69 million
Americans.
For me this is very personal, going back to my days when I
was co-director of the Oregon Gray Panthers and ran the legal
aid office for the elderly.
Senator Grassley and I talk often about these subjects. We
are talking about seniors, people with disabilities,
individuals who have earned their benefits after years of
paying into the program with each and every paycheck. Every one
of those 69 million people, and the generation who will come
after them, are counting on those who run the program to
maintain a very high level of service.
Because of this committee and the hard work of dedicated
advocates for Social Security, the agency's administrative
budget has improved recently. Americans do not have to wait as
long as they did a few years ago for a hearing on their
disability appeal.
But there is certainly more work to do. It is also the case
with respect to improving and managing the agency's IT
infrastructure.
These are key challenges that Mr. Black is going to have to
address. My view is that he is very knowledgeable about the ins
and outs of the Social Security Administration.
This morning, while we consider the nomination for the
Deputy Commissioner, I also want to be on record as making
clear that Social Security has not had a confirmed Commissioner
in place since February 2013. That is far too long to have this
top position go unfilled. Just like any government agency or
any private business, Social Security runs best when it has
strong leadership.
In my judgment, the Senate should not confirm a Deputy
Commissioner before confirming the Commissioner. Andrew Saul's
nomination to serve as Commissioner has been approved by this
committee twice. I hope he will be going to the floor soon. I
would also note, in terms of going forward on the Senate floor,
it would be appropriate to take up the nomination of the
Commissioner before taking up the nomination of the Deputy
Commissioner.
Last word, with respect to Mr. Toro: the United States Tax
Court may not generate a whole lot of conversation at dinner
tables, coffee shops, and the Dairy Queens patronized by the
chairman and myself, but let us just say it is a really
important place, because it is the judicial backbone of the
Federal tax code. It is the best opportunity Americans have to
dispute tax bills before they have to pay. It keeps them from
getting stuck in the slow-moving judicial process.
The Tax Court is a big part of ensuring fairness for
taxpayers. I appreciate Mr. Toro's willingness to serve.
Thank you, Mr. Chairman.
[The prepared statement of Senator Wyden appears in the
appendix.]
The Chairman. Yes.
I am going to call on our colleagues, because they have
more important things to do in addition to the important thing
of being here. So we will start with Senator Hoeven and then
Senator Kramer.
STATEMENT OF HON. JOHN HOEVEN,
A U.S. SENATOR FROM NORTH DAKOTA
Senator Hoeven. Thank you, Chairman Grassley and also
Ranking Member Wyden. We appreciate it. I am very pleased to be
here today and have the honor to introduce Mr. David Black from
our home State of North Dakota, who is nominated to be Deputy
Commissioner of the Social Security Administration.
Mr. Black is here today with his wife Hollie and three
children: Olivia, who is almost 4; Grace, who is almost 2; and
William, who is 10 days old. And maybe they could all stand--
and if William can stand, that would be really amazing.
I think he may have some other family here as well. I will
let him introduce them.
David grew up with his five brothers and six sisters--there
is a good North Dakota family, right, five brothers and six
sisters, even dozen--in Rugby, ND on the family farm, where his
Mom still lives. Our chairman should appreciate that.
Mr. Black earned his undergraduate degree from the
University of North Dakota in 1990, his Juris Doctorate from
the University of Minnesota Law School in 1996. We do not hold
that against him, that he got his law degree from the
University of Minnesota.
David has served in the Army since graduating from UND in
1990, including the Judge Advocate General's (JAG) Corps. He is
currently a Lieutenant Colonel in the Army Reserves. He has
nearly 10 years of experience working at the Social Security
Administration, serving under both George W. Bush and in the
Obama administration as well.
From 2004 to 2007, he served as Deputy Secretary for the
Department of Education's Office of Civil Rights. He left that
position in 2007 to become the Social Security Administration's
General Counsel, where he served until 2015.
During that time, he was deployed to both Afghanistan and
Iraq. In 2010 and 2011, as the Deputy Staff JAG for a three-
star Joint Task Force, he earned the Bronze Star Medal.
After departing the Social Security Administration in 2015,
David traveled with his wife as she was deployed abroad in the
U.S. Air Force, where he had the opportunity to raise his
newborn daughter.
David then returned to the Social Security Administration
in 2017 to help with the transition. And he stayed on as a
senior advisor to the acting career leadership.
Mr. Black exemplifies North Dakota values through his hard
work, through his obvious commitment to service of this
country--both on his part and on the part of his wife--his
commitment to public service, and his commitment to family.
He is an outstanding nominee for this position, and I ask
that the committee approve his nomination and do so as
expeditiously as possible.
I know my colleague from North Dakota, Senator Cramer, will
have some comments as well. And I thank you again, Mr. Chairman
and Ranking Member, for your consideration of Mr. Black today.
The Chairman. Thank you, Senator Hoeven, and you ought to
go do whatever else you have to do. You do not have to stay
around here.
Senator Hoeven. I certainly have to stay for Senator
Cramer's speech, because it will be very good.
The Chairman. Senator Cramer?
STATEMENT OF HON. KEVIN CRAMER,
A U.S. SENATOR FROM NORTH DAKOTA
Senator Cramer. I will also be very short.
Thank you, Chairman Grassley, Ranking Member Wyden, and
members of the committee.
I just would associate myself with the comments of Senator
Hoeven. We are very proud of David, and clearly he has a
servant's heart. That is demonstrated in his biography, his
resume, and of course, just in knowing him.
I am not really sure what he does in his spare time,
because I do not know how he could possibly have any. But we
are just grateful for his willingness to step up in this very
important position, and we know he would do a great job. I am,
again, just grateful for your willingness to serve.
With that, thank you, and I yield back.
The Chairman. I am now going to introduce David Black. His
wife Hollie has already been referred to, as well as their
newborn son. Hollie is an Air Force officer. So we thank Hollie
for her service, her defense of freedom.
Mr. Black originally was from Rugby, ND. Maybe he still
calls that home. I want to thank Mr. Black for his public
service as well.
Our second witness, Emin Toro--since 2003 he has been a
partner at the law firm Covington and Burling. Before that, he
served as clerk for Justice Clarence Thomas at the Supreme
Court.
He has a bachelor of arts degree from Palm Beach Atlantic
University and a law degree from the University of North
Carolina, Chapel Hill.
We are also joined today by several members of the Tax
Court. If they are here, just raise your hand--Chief Judge
Maurice Foley, Judge David Gustafson, thank you. Judge Ronald
Buch--if I am pronouncing it right. And the two newest members
of the tax Court, Elizabeth Copeland, thank you, and Judge
Patrick Urda, thank you.
We also recognize the Honorable Karen Henderson, U.S. Court
of Appeals for the District of Columbia. I do not see a hand
raised, so maybe--oh, you are way back there.
So, Mr. Black, you can make your opening statement and
introduce any family and friends you want to, and then we will
go to Mr. Toro for family and friends, and then we will ask
questions.
STATEMENT OF DAVID FABIAN BLACK, NOMINATED TO BE DEPUTY
COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, BALTIMORE, MD
Mr. Black. Chairman Grassley, Ranking Member Wyden, members
of the committee, thank you for holding this hearing. Thank
you, Senators Hoeven and Cramer, for that kind introduction.
Joining me today is my wife Hollie, who is an officer in
the U.S. Air Force. Our newborn son William, at 10 days old, is
getting his first civics lesson. Our daughters Olivia, who is
3, and Grace, who is 1, are a little older and a little wiser
and chose the playground over Dad's testimony.
I am proud to call North Dakota home, because my time
growing up on a farm there charted the course for my character.
While I grumbled at hauling hay bales in the heat or feeding
livestock in the cold, those early experiences taught me
priceless life lessons. And I am grateful for them.
My parents instilled in me the importance of honesty, hard
work, self-reliance, responsibility, and a commitment to
selfless service. This commitment is why I have dedicated most
of my career to the military or our civilian government.
I have served for almost 29 years in the military as an
enlisted soldier or an officer on both active duty and reserve
duty, including deployments to Iraq and Afghanistan. I am
currently a Lieutenant Colonel in the U.S. Army Reserve.
My 8 years as SSA's General Counsel during both the George
W. Bush and Barack Obama administrations educated me not only
about the agency, but also about how its policies and practices
play out for Americans who depend on us. Given this insight, in
2016 when I was approached about a transition role at the
Department of Education, where I worked from 2004 to 2007, I
suggested I could be of more help at the Social Security
Administration.
In my 10 years with the Social Security Administration, I
have witnessed how important it is for the agency to manage its
programs effectively to serve beneficiaries.
My parents raised 12 children on a limited income. So we
worked hard to make ends meet. I benefited from programs
including Head Start, reduced school lunches, summer jobs for
low-income youth, Pell Grants to attend college, and the GI
bill. My mom relies on widows' benefits as her only source of
income. I understand firsthand the importance of government
programs for those who qualify.
If confirmed, I will never lose sight of the significance
of SSA's work. Being good stewards of SSA's programs means
getting the right amount to the right person on time. The
agency must continue its efforts to eliminate payment error,
waste, fraud, and abuse, while ensuring that its Social
Security programs serve and are accessible to beneficiaries.
In some cases, this might mean we need to discuss program
simplification, which SSA employees seek and can make SSA
programs easier for the public to understand. The basics of
public service must come first: answering calls, reducing wait
times in SSA offices, and issuing fair decisions.
The agency needs to evaluate all service channels and bring
technology to bear when it can improve public service. The
agency must also ensure the privacy and security of the
sensitive personal information the American public has
entrusted to it.
As SSA's former General Counsel, I served as the Senior
Agency Official for Privacy. I know the agency takes seriously
its responsibility to protect this information, including
ensuring that only the internal and external people who need
appropriate access to SSA sensitive information have it.
In addition to these longstanding tenets of SSA's
disclosure policy, the agency must also stay ahead of
persistent cybersecurity threats.
I have spoken with Andrew Saul, the nominee for
Commissioner of Social Security, about our priorities. We share
the same customer service focus and commitment to digging into
the facts of challenges with an emphasis on accountability,
action, and transparency.
Our priorities not only align with each other, but also
reflect issues of great concern to this committee and the
American public. I believe in SSA's mission.
If confirmed, I look forward to working with you on these
matters. Thank you. I will be happy to answer any questions you
have.
The Chairman. Thank you, Mr. Black.
[The prepared statement of Mr. Black appears in the
appendix.]
The Chairman. Now, Mr. Toro.
STATEMENT OF EMIN TORO, NOMINATED TO BE A JUDGE OF THE UNITED
STATES TAX COURT, WASHINGTON, DC
Mr. Toro. Chairman Grassley, Ranking Member Wyden, members
of the Finance Committee, it is a privilege and an honor to be
here today. Thank you for holding this hearing to consider my
nomination to serve as a judge on the U.S. Tax Court. I would
also like to express my thanks to the committee staff for their
support throughout this process.
I am delighted to have family and friends and colleagues
with me here today. I am particularly grateful to my parents,
Salih and Lavdie Toro, who from my earliest days taught me to
work hard and be kind; to my wife Katie, whose love and support
is an immeasurable source of strength; to my children, Juliana,
Sebastian, and Emilia, who bring such joy to us; and to my
sister Rudina and brother-in-law Jason Powell, whose friendship
enriches our lives.
I am grateful to the President for the nomination and the
opportunity, if confirmed, to serve our country. When I first
came to the United States from Albania as a senior in high
school, I had no idea I might one day appear before a committee
of the United States Senate as a nominee for a Federal bench.
I was too busy learning how to write research papers to
think of such things, but it is a credit to this great Nation
that the path to public service is open to all, including those
who recently started calling this country home.
Credit also goes to those who, looking beyond my unusual
name and an accent, were willing to support my development,
both as a lawyer and as a person--people like Judge Karen
LeCraft Henderson and Justice Clarence Thomas, who gave me my
start in the law; my professors at Palm Beach Atlantic
University and the North Carolina School of Law, who made me a
better thinker and writer; my colleagues at Covington, who
helped me learn how to solve problems and resolve
controversies; and my pastors and mentors in West Palm, Durham,
and Falls Church, who taught me to have faith and serve others.
It is thanks to their efforts and God's grace that I appear
before you today.
The opportunity to serve on the Tax Court is exciting for
someone who has spent the last 16 years working on tax issues.
In that time, I have had the opportunity to resolve
controversies with the Internal Revenue Service, serve clients
on complicated tax issues in the United States and abroad, and
represent clients before the Tax Court.
Through my clerkships at the DC Circuit and the Supreme
Court, I saw firsthand how many tax and non-tax cases were
litigated. These experiences have given me a strong
understanding of our tax laws and the litigation process in tax
cases. Through them, I have come to appreciate the key role
trial courts play in our judicial system and the hard work
required to hear and decide cases.
Legal practice and service in the community have taught me
that usually there are two sides to every dispute and that wise
decisions require careful listening, thorough evaluation,
impartial judgment, and fairness.
My work at Covington and while clerking has also instilled
in me a deep commitment to collegiality. I trust that these
perspectives will facilitate the workings of the Tax Court,
especially given its collegial decision-making process and the
need for a uniform application of the law in light of the
Court's nationwide jurisdiction.
Finally, my personal background gives me a deep
appreciation for the United States Constitution, the American
legal system, and the importance of the rule of law. If
confirmed by the Senate, I would strive each day, in the words
of the judicial oath, to administer justice without respect to
persons and do equal right to the poor and to the rich, and in
so doing serve the country to which I owe so much.
I look forward to answering the committee's questions.
[The prepared statement of Mr. Toro appears in the
appendix.]
The Chairman. We have three or four questions we ask every
nominee, not just you folks. Each of you will have to respond
to these.
Is there anything that you are aware of in your background
that might present a conflict of interest with the duties of
the office to which you have been nominated? Mr. Black?
Mr. Black. No, Mr. Chairman.
The Chairman. Mr. Toro?
Mr. Toro. No.
The Chairman. Do you know of any reason, personal or
otherwise, that would in any way prevent you from fully and
honorably discharging the responsibility of the office to which
you have been nominated?
Mr. Black. No.
Mr. Toro. No.
The Chairman. Okay.
Do you agree without reservation to respond to any
reasonable summons to appear and testify before any duly
constituted committee of the Congress, if you are confirmed?
Mr. Black. Yes.
Mr. Toro. Yes.
The Chairman. Do you commit to provide a prompt response in
writing to any questions addressed to you by any Senator of
this committee?
Mr. Black. Yes.
Mr. Toro. Yes.
The Chairman. Okay.
I think I told you, Mr. Black, when you were in my office,
I hope you respond totally in our first letter, not just
acknowledging it, and then a second letter, and then a third
letter, and a fourth letter, before you finally get all the
answers to our questions.
I mean, that is the way it works around here. And I hope
you are an exception.
Mr. Black. Mr. Chairman, I recall that conversation, and I
am still committed to a ``yes.''
The Chairman. Okay, because oversight is very important.
So a 5-minute round of questioning.
Mr. Black, based on discussions I had with you, I know that
you are committed to helping ensure that Social Security will
work to reduce various service delivery backlogs. So this is
what we hear from our constituents: encountering phones that
are busy, long waits to get someone to answer the phone, and
they face large backlogs and have to wait hundreds of days for
a hearing to determine whether they will be awarded disability
benefits. Just some complaints we hear.
So I wondered if you could tell me whether the various
service wait times and backlogs can be headed downward and, if
not headed in that direction or even if they are, what you
could do to reduce them yet further.
Mr. Black. Mr. Chairman, thank you for that question. As I
mentioned in my opening, not only I personally, but my family
has relied on government programs over the years. And so I
agree with you, Mr. Chairman, that timeliness is part of
quality service to the American public.
So I do have some good news to share that some of these
backlogs and wait times are trending downward. When I first
came back to the agency in 2017, we had a hearings backlog of
1.1 million cases with an average wait time of over 600 days.
We all agree at the agency that that is simply unacceptable.
That backlog is trending down. It is currently under
700,000 cases. And that wait time is still at about 525 days--
still unacceptable. However, we see that it continues to trend
down, and that is due in large part to the dedicated employees
who are handling those workloads.
Our 1-800 number, Mr. Chairman, is not faring as well. Wait
times are still significantly long on that 800 number, and that
is going to be a priority for myself and Mr. Saul to dig into
that issue and find out why that is still an issue--everything
from reading the script to looking at how we can bring
technology to bear, looking at the retention rates of those
particular employees so that we can do more to have a timely
response when someone calls into the agency.
The Chairman. Okay.
Mr. Black. What we can do long-term, Mr. Chairman--
sustained resources certainly are helpful to the agency. But
also, Mr. Saul and I have committed to you that we will dig
into the challenges at the agency. We will look at everything
anew. I have spent time with the agency.
But if I am fortunate enough to be confirmed, I am coming
into the agency in a new position, and I am going to take that
seriously. I will dig into all the facts and find out how we
can better improve service to the American public.
The Chairman. Last question: I wonder where things are with
Social Security information technology modernization, in
general, and what is going on with the disability case
processing system in particular.
Mr. Black. Mr. Chairman, thank you for that question. As
Ranking Member Wyden mentioned in his opening statement, due in
large part to this committee and the House Social Security
Subcommittee, the agency has gotten additional funding in the
last number of years to address our backlogs and to address IT
modernization. They take the priority.
Mr. Saul and myself will prioritize IT modernization. We
will be good stewards of those funds.
The agency has an IT modernization plan. It is making very
good progress on that. The Acting Commissioner, Nancy
Berryhill, takes this issue very seriously. She meets with the
executives responsible for IT modernization every week. Mr.
Saul and I plan to continue with that effort. Simple concept of
leadership--where we focus our attention--is where things will
stay on track, not only in timelines but in budget.
Chairman Grassley, the disability case processing system--
the agency has had failures in that in the past, and we own
those mistakes. We have learned from those mistakes, and it is
for that reason that the agency leadership has focused so hard
on IT modernization. We are going to get this right.
The Chairman. Senator Wyden?
Senator Wyden. Thank you very much, Mr. Chairman.
Mr. Black, a couple questions for you. As you know, the
chairman and I both supported Andrew Saul to be the
Commissioner. He pledged that he would be independent and non-
partisan. Let us save some time. Will you pledge this morning
to be independent and non-partisan as well?
Mr. Black. Yes.
Senator Wyden. Okay. Very good to have a one-word answer to
that. Thank you.
Okay, then let me talk to you about the agency's relations
with employee groups. And again, we are aware of your
background, your lifetime service to the country, both in the
military and the Federal Government. As you know, Social
Security has a very dedicated workforce. I mean, people show up
every day really passionate about public service and believe in
the mission.
Now we both, I think, would agree with the proposition that
hiring and retaining dedicated public servants is key.
Unfortunately, the Trump administration and the agency have
been shooting themselves in the foot by trying to implement
executive orders that really gut the role of the Federal labor
unions. The executive orders undermine the decades of rights of
Federal employees to fair representation in the workplace by
imposing arbitrary limits on official time, official travel,
and I gather, even the use of office space and equipment.
The Federal District Court in DC struck down a big chunk of
the provisions, these executive orders. We are still getting
reports that Social Security is deliberately pursuing illegal
provisions in ongoing contract negotiations. And my good
friend, Senator Cardin, is here. Senator Masto is here. Both of
them have been steadfast defenders of Federal employees. The
Maryland Senator is sounding the alarm on what I think is just
a subversion of these workers' rights.
Now, you previously served as General Counsel of the Social
Security Administration. In that capacity, would you have
recommended that the agency pursue illegal orders in defiance
of a court ruling?
Mr. Black. Senator, as the General Counsel, I would have
always recommended that the agency comply with the law fully.
Senator Wyden. So you would not have recommended--this is
another good one for a ``yes'' or a ``no.'' You would not have
recommended that the agency pursue illegal orders in defiance
of a court ruling?
Mr. Black. No, I would not have.
Senator Wyden. Okay.
If confirmed, will you push the agency to stop pursuing
this legally questionable position?
Mr. Black. Senator, as I mentioned in my opening, one of
the reasons I wanted to return to the Social Security
Administration is that I have a great deal of respect for the
agency's mission. And I have a lot of passion for the agency's
mission.
It has an amazing culture, and that culture comes from the
employees of the Social Security Administration. As you have
noted, the vast majority of the Social Security employees are
good, hard-working public servants who just want to carry out
the mission of the Social Security Administration.
It is not unusual that you will find an employee who has
30-40 years dedicated to this mission. Outside the Department
of Defense, I have never been in an organization so dedicated
to its mission.
I have a great deal of respect for these employees and the
talent and dedication they bring to work every single day to do
their job. Similarly, I have a great deal of respect for the
role of the----
Senator Wyden. We are getting a little long here, and let
us just kind of recap it.
Great answer on independence. Yes, you will make sure
Social Security is independent. Really good answer on the
second round that you would not have recommended the agency
pursue illegal orders in defiance of a court ruling. And we are
trying to get a ``yes'' or ``no'' on, if confirmed, will you
push the agency to cease pursuing a legally questionable
position. Can you answer that?
Mr. Black. Yes, I will.
Senator Wyden. You will push the agency to cease pursuing
its legally questionable position.
Mr. Black. Yes.
Senator Wyden. That is a ``yes.'' Very good. Thank you.
Mr. Chairman, Thank you.
The Chairman. Of the people who are here, Cardin, Cortez
Masto, then it would be Portman and then Thune.
Senator Cardin?
Senator Cardin. Thank you, Mr. Chairman.
And let me thank both of our nominees for their willingness
to serve.
Mr. Toro, we appreciate your talent coming on to--being
willing to serve our Tax Court. We recognize that talent is
very much in need in public service, so we thank you for your
willingness to serve, and we thank your family, as we know that
there are sacrifices that will be made.
Mr. Black, you and I have had a chance to talk, and I
appreciate your willingness to continue in public service. And
again, I thank your family, including the newest arrival to
your family.
I want to follow up. I appreciate your response to Senator
Wyden, and I am sorry he had to cut you off on time because of
the shortness of time to get a direct answer. But I appreciate
what you were saying about the dedicated workforce.
I have the honor of representing the State of Maryland and
the Social Security Administration location in Baltimore County
with so many dedicated workers, and I am going to talk a little
bit about that.
But I want to first underscore a point with your exchange
with Senator Grassley. And that is, yes, we are pleased that
the backlog is moving in the right direction. That is certainly
a good sign. And the wait time is moving in the right
direction. And Congress has provided resources to make that a
reality.
But with the 1-800 number moving in the wrong direction, I
am not surprised, because the teleservice has not gotten the
same amount of attention. The field offices are very important,
and there have been closures of field offices.
Just to point out one statistic, the number of people
visiting our field offices today is comparable to number we had
in 2000. So the desire to seek one-on-one type help is very
much needed among our constituents. So you said that you are
going to pursue the priorities of the mission.
The mission is to serve the public. It is the best in the
world in implementing a Social Security system and related
programs. Will you be committed to making sure that we have
that one-on-one exchange so that our constituents can get the
services they need to understand the Social Security laws and
to be able to get the appropriate benefits?
Mr. Black. Yes, Senator.
Senator Cardin. That was a ``yes'' answer. I appreciate
that.
So let me move on to the issue that Senator Wyden was
talking about on our workers and their rights. It is a
dedicated workforce. I am there frequently. They have worked
under extremely challenging circumstances, including budget
problems and all the related issues.
So what Senator Wyden was getting to--and I very much thank
you for your answer--is that our workers are entitled for their
voice to be heard. And it needs to be heard directly, but also
through their representatives. And that is what the collective
bargaining agreements are all about.
Are you committed to working with the workforce, including
their representatives, so that we have a team approach to
carrying out the mission at the Social Security Administration
and not an adversarial relationship?
Mr. Black. Yes, Senator.
Senator Cardin. I am getting great answers. So I thank you
for that.
I want to also just underscore how important it is for us
to work together--this committee, members of Congress. Social
Security is a critically important program, very popular among
the people of this country, for good reason.
The backlogs are too long. The wait times on telephone
service are too long. The cutting of field offices is moving in
the wrong direction. Confrontational policies with the
workforce are not helpful, not just at SSA. But just generally,
the Federal workforce is the key to us as a Nation, providing
the critical services to our people. And I think you can
provide critical leadership at this time to instill that type
of respect and admiration for those who are in public service,
including our front-line workers.
And I would just urge you to look for opportunities where
we can work together--members of this committee, the U.S.
Senate, and you--to just instill, at this time when public
service is so much being challenged, that we find ways to work
together to show our support and appreciation for those who are
carrying out this public service.
Mr. Black. Yes, Senator. I look forward to that working
relationship with the goal to provide better public service for
those who really need it.
Senator Cardin. Thank you.
Thank you, Mr. Chairman.
The Chairman. Senator Cortez Masto?
Senator Cortez Masto. Thank you.
Gentlemen, welcome. Congratulations on your nominations.
Welcome to your families; very excited to see everyone here.
Mr. Toro, let me start with you, because I do not want you
to think you are going to be left out here. In your statement
you highlighted that wise decisions require careful listening,
thorough evaluation, impartial judgment, and fairness. Let me
just tell you as a former Attorney General, I agree with you.
Given your tenure as a long-time practicing litigator, what
is your understanding of the burden of proof for the taxpayer
to provide evidence to the Tax Court?
Mr. Toro. The taxpayer bears the burden of proof. The
Commissioner's determinations generally come with a presumption
of correctness.
Senator Cortez Masto. And so what is the benchmark of the
IRS to provide proof or to disprove evidence in Tax Court?
Mr. Toro. It is the same as in any case. If the taxpayer
does bring evidence that shows by a preponderance that the
taxpayer's position is right, then the government would have to
bring contrary evidence to show that it is not.
But the notice of deficiency, if nothing else comes in, the
notice of deficiency comes with the presumption of correctness.
Senator Cortez Masto. Okay.
And this past year, as a result of the government shutdown
that we just went through, it is my understanding that the IRS
did not conduct any new audits or pursue any non-automated
collections. And I also was under the understanding that many
U.S. Tax Court cases were canceled.
What is your understanding of the current backlog and the
impact of the shutdown on the Court proceedings?
Mr. Toro. So I think that the Court cases were deferred. So
there were trial sessions that were set up during that period
where, because of lack of budget, judges could not go to the
trial sessions, and those were deferred. So I suspect that the
impact on the Court will be a longer time to decision. But
there will be a decision on those.
Senator Cortez Masto. So there is a backlog. The courts
move through it as quickly as they possibly can.
Mr. Toro. Yes. That is right.
Senator Cortez Masto. Okay. Thank you. I appreciate that.
Mr. Black, first of all, let me just say ``thank you'' to
you and Hollie for your service to our country. I so appreciate
you are willing to serve.
I want to associate myself with the concerns that my
colleagues represented here with respect to the backlogs at the
Social Security Administration as well. I hear it all the time
in Nevada. It is the number one issue that I am hearing about.
In fact recently, there was a constituent from northern
Nevada who was overpaid by the Social Security Administration,
and she began contacting the administration to get it
straightened out, to make the repayment, so the overpayments
would stop. And I will tell you, it continued on for over a
year until my office intervened.
And I think that is the challenge we have. We have a
backlog. We have a lack of a workforce. My understanding is,
over the last decade there has been a 12-percent decrease in
the workforce. Something is going on there.
And so I guess my question to you is--I appreciate your
efforts in wanting to address it. But if we are getting a
budget from the administration that is zeroing things out--that
is what I am seeing. The proposal from the President is to
reduce lease space, co-locate offices where practicable, and it
even mentioned shrinking desk sizes to fit more people in a
crammed space.
How are you going to address the backlog and the needs of
the American citizens, from seniors to disabled workers, who
need these payments in a timely manner? So I guess--have you
thought about, as you look at this budget, how you are going to
address the concerns of the backlog and what you need to do?
Mr. Black. Yes, Senator. I thank you for that question.
I agree with you, to address these backlogs we do need
dedicated employees. So the funding from Congress is essential,
and you have a commitment from me, and I would say Mr. Saul,
the Commissioner nominee as well, that once we get into the
agency in our new roles and start digging into the challenges
and the facts of those challenges, if we need more funding, we
will come to Congress and request it.
Senator Cortez Masto. Thank you.
And I also understand you are looking at a new IT system.
Is that correct?
Mr. Black. Yes, Senator. I referenced the IT modernization
effort. The agency for decades has had a very outdated IT
infrastructure based largely in COBOL. So Congress has given us
additional funding to address that, and we are hoping that that
allows our employees to have the tools they need on the front
lines to better serve the American public.
Senator Cortez Masto. Great. Thank you so much.
Again, congratulations on your nominations.
Senator Wyden [presiding]. Thank you, Senator Cortez Masto.
Senator Carper?
Senator Carper. Thank you, Senator Wyden.
Mr. Black, Mr. Toro, good morning. Thanks for your
willingness to serve in these positions.
Mr. Toro, there are some old people sitting right behind
you. It looks like they ought to be in school right now. And do
you know any of them?
Mr. Toro. I may.
Senator Carper. You probably introduced them before I got
here. Just introduce them again starting from left, the oldest
one.
Mr. Toro. Emilia is my youngest.
Senator Carper. Emilia. How old is Emilia?
Mr. Toro. How old are you?
Ms. Toro. Nine.
Senator Carper. Okay.
Is that her sister next to her?
Mr. Toro. No, that is my wife. [Laughter.]
Senator Carper. I am sorry. What is her name?
Mr. Toro. This is Katie.
Senator Carper. Katie, how are you?
Mr. Toro. Sebastian.
Senator Carper. Yes
Mr. Toro. And Juliana.
Senator Carper. Yes; who is next to your wife?
Mr. Toro. This is Sebastian.
Senator Carper. Sebastian. Hi, Sebastian. And who is next
to Sebastian? Is that his wife? [Laughter.]
Mr. Toro. That is his sister, Juliana.
Senator Carper. Juliana. Okay. And who is the lady in blue?
Mr. Toro. That is my sister, Rudina.
Senator Carper. All right. Anybody else in the family----
Mr. Toro. Yes; my brother-in-law and my parents on the
side.
Senator Carper. Anybody here not in the Toro family?
[Laughter.]
All right. Mr. Black, do you have anybody sitting back
there whom we ought to know about? You probably already
introduced them.
Mr. Black. Yes, Senator--my wife, Hollie, and our newborn
son, William.
Senator Carper. William?
Mr. Black. William, yes.
Senator Carper. That is great. First child?
Mr. Black. No; we have a 3-year-old and a 1-year-old who
chose not to attend today, and William----
Senator Carper. Good move. [Laughter.]
All right. Well, congratulations, mom. And Happy Mother's
Day, ladies. It is coming up. Happy Mother's Day.
People ask me why I turned out well in my life. I always
say my sister and I picked the right parents. But in truth, we
actually picked the right mom. [Laughter.]
All right. That is all I have.
Mr. Black. Thank you, Senator.
Senator Carper. Not really. [Laughter.]
Senator Wyden. Let's go to Senator Menendez then.
[Laughter.]
Senator Carper. Mr. Black, I understand you have served in
uniform.
Mr. Black. Yes, Senator.
Senator Carper. You still do that?
Mr. Black. I do. I am still in the U.S. Army.
Senator Carper. How did you get your commission?
Mr. Black. I first enlisted. I was a linguist. And after
law school, I had a direct commission as a JAG officer in the
Army.
Senator Carper. Oh, that is great. Well, Navy salutes Army.
I am a retired Navy captain. Great to see you. Welcome aboard.
Thank you both for being here.
We have a budget deficit this year that is expected to
reach $850 billion--$850 billion. Next year, I am told, this
will be about a trillion dollars.
Our friends at GAO prepare a high-risk list at the
beginning of every Congress. They came out with one in
February, and in this high-risk list, they noted that we had
made, in the last year, about $140 billion of improper
payments.
Improper payments are payments that are, in some cases,
overpayments, in some cases underpayments, and in other cases
mistaken payments. One of the things that they have noted for
us is that we actually make payments from time to time to
people who are dead, and some of them have been dead for a long
time. I think we actually had a report that said there was a
database in the Social Security Administration that said there
about 5 million people age 112 or older, all of which is
concerning.
I am just going to put on the radar that the Republican
Senator from Louisiana, John Kennedy, and I, have introduced
legislation to attempt to deal with such improper payments to
deceased people. And that is something that we will want to
pursue with you and then explore with you. I think it is
something that you may want to support.
Mr. Toro, I would ask you to take 60 seconds and tell me
something that you really think I should know about you that
may not have come up already, and it may not be imminently
apparent. Just something I should know about you, we should
know about you, that says ``I am the right guy for this job.''
Do not be modest.
Mr. Toro. Well, I have been practicing law for about 16
years, and I had two clerkships before that. And in the 16
years that I have been doing this, I have been having a lot of
fun practicing tax law and helping taxpayers comply with their
obligations and get good resolutions with the government and
resolve disputes. And I would bring that mindset to the new
job, if confirmed.
Senator Carper. Okay.
The other thing is something Ben Cardin was getting into in
his questioning, because he has a lot of Federal facilities in
Maryland. We have some in Delaware. He visits them, and
although he is a busy guy, he makes time to do this since he
has a lot of CMS folks and folks in the Social Security
Administration.
In the Navy, we believed in walking around and actually
showing your face and showing some interest in the people you
are leading. Even though these are big organizations, I would
urge you to do that. My guess is, you probably would anyway,
but I would urge you to do that. Thank you. Good luck.
Senator Wyden. Senator Menendez?
Senator Menendez. Well, thank you, Mr. Chairman.
Congratulations to both of you on your nominations. And
since Senator Carper has gone through all the family pedigrees,
I will forgo that.
Mr. Toro, despite many of the promises of the Trump tax
bill, the latest tax bill has made the tax code larger and more
complicated, leading to a nightmare filing season for millions
of Americans.
If confirmed, would you support some leniency to low- to
middle-income taxpayers and small business owners who might
have made honest mistakes while trying to comply with the new
tax code thrown at them a few mere weeks before the start of a
new tax year?
Mr. Toro. Senator, I would follow the law on that, and I
think the law provides for taxpayers to show reasonable cause
and good faith in complying with their tax obligations. And as
long as they show that reasonable faith in complying with their
obligations, they would not be subject to penalties.
So I would follow the law in doing that.
Senator Menendez. And I appreciate that, but as we know,
following the law depends upon what the administration of it
is, and interpreting the law in a way within the confines of
the law to give that flexibility. And one can decide to enforce
it in a way that is not flexible, or one can decide to enforce
it in a way that is flexible.
So I am looking to see that, within the context of the
law--would you give the flexibility within the law that is
available to taxpayers if they show they made an honest
mistake?
Mr. Toro. I think I would follow the law, and to the extent
the law provides flexibility, I think I would follow that as
well.
Senator Menendez. That is not the same as interpreting it
in a way in which that which the law gives you the flexibility
to do, that you would do.
Mr. Toro. Right; the determinations of reasonable cause and
good faith are inherently factual issues. And so to the extent
the taxpayer is able to show facts that would fall within the
legal standard, I would have no objection to doing that.
Senator Menendez. Well, let us try to help one group of
taxpayers. One area of particular confusion deals with
eligibility over the section 199A deduction for pass-through
businesses.
Many real small business owners have no idea if they
qualify or how much they qualify for, while the largest
partnerships and pass-throughs employ expensive tax lawyers to
take full advantage of this windfall.
So can you explain what types of rental property incomes
qualify for the deduction? And if there are categories of
rental income that do not qualify, why is this so?
Mr. Toro. I have not studied section 199A in enough detail
to give you an answer to that question. I believe the
government is preparing regulations to address the 199A. There
are, I think, proposed regulations already.
So I could not give you an answer of how the two----
Senator Menendez. Well, would you look at it and give me a
written answer for the record?
Mr. Toro. I would be happy to.
Senator Menendez. This is a problem. This is exactly what I
am trying to show, that in a tax bill that was thrown together
at the last minute, thrust upon taxpayers right before the
filing season, there is not enough guidance in order to
understand that which you qualify for, do not qualify for,
under what circumstances. So, you know, it is unfair to the
taxpayers at the end of the day to be put in a situation simply
because the administration and Congress at the time passed
something without the reasonable time frame for its
implementation.
So I would like you to look at that for me and give me a
written sense of it.
Mr. Black, do you believe the Social Security
Administration is meeting its obligation to the 10,000 baby
boomers who are hitting retirement age each day?
Mr. Black. Senator, as I mentioned in my opening and
alluded to in a number of questions, we are not following
through on customer service to what your expectations would be
or what mine would be. There is definitely room for
improvement.
But I can assure you the agency is dedicated to serving
those beneficiaries and others.
Senator Menendez. Well, beyond customer service, is it
meeting its core obligation to those 10,000 baby boomers who
hit retirement age every day?
Mr. Black. That is my belief, Senator, yes.
Senator Menendez. You mentioned in your testimony that you
have a customer service focus. Can you tell me in one line what
you think the one change the Social Security Administration
needs to make to improve the customer experience?
Mr. Black. To provide more timely and quality service and
accurate decisions.
Senator Menendez. Let me ask you the last question. Last
fall, the Social Security Administration was criticized by the
Government Accountability Office for failing to have policies
in place to address the role of the Chief Information Officers
for budgeting security and planning purposes. What progress has
the Social Security Administration made in terms of addressing
the GAO's criticism, and can you give me some specific concrete
steps forward?
Mr. Black. Senator, I will have to answer that question for
the record. I am not in a position at the agency to know where
they are in progress on that GAO report, but I will certainly--
--
Senator Menendez. In your goal to provide greater customer
service, I would like to know what it is specifically that is
being done at the agency for this purpose. Obviously, you would
have a major role in this regard.
Mr. Black. Senator, certainly if confirmed, when I get
there, I will personally read that GAO report and check on the
status.
Senator Menendez. Thank you both.
Senator Wyden. Thank you, Senator Menendez.
We are waiting to see if additional colleagues wanted to
come. I, on behalf of the chairman--and I join him in this--
would like to acknowledge the attendance of Chief Judge Foley
and other members of the Tax Court. We understand that you are
here. We appreciate your service, and I do not know if you were
here at the beginning, but we realize that people in coffee
shops from sea to shining sea do not always talk about your
work on a daily basis. But it is much appreciated by the
chairman and myself.
A couple of other questions as we wait for colleagues. Mr.
Black, apropos of the IT situation there at the agency, I
understand you were part of the team that has worked on some of
the security efforts. Mr. Saul, I thought to his credit, was
very interested in those matters as well.
And for people who are following this in something
resembling English--and so much of government is like in a
completely different, you know, La La Land--I learned when I
was director of the Gray Panthers and I ran the legal aid
office, unless you really translated matters so that people can
get it, it just sort of goes over everybody.
But basically, what you have been in the business of--and I
think it is very good and very constructive--is trying to
protect people against theft of their personal information,
their personal information associated with Social Security. So
tell us a little bit about this work, and if confirmed--and you
already heard the favorable comments from the chairman and
myself. Tell me what your priorities would be with respect to
these IT issues, and particularly IT as it relates to security.
Mr. Black. Senator, thank you for your question.
As I mentioned in my opening, one of my dual roles as the
General Counsel was as the agency's Senior Official for
Privacy. And so, like you, I do take the American public's
information that they have entrusted to us very seriously. And
I am an advocate for their privacy.
Some of the efforts that the agency has made through its IT
modernization have been to move to databases that are far more
secure, to put in place IT infrastructure that is far more
secure and more defensive against cyber-attacks.
The agency has made more efforts to bring in far more
qualified people, executive leadership, to work in these areas.
And the agency, as part of its IT modernization, is also going
to look at modernizing policy in the area of authentication so
that we are doing those online transactions and keeping them
secure.
Senator Wyden. What do you think would be, say, the top
three threats to the personal information of people on Social
Security? I mean, this can be countries. This can be people who
have mastered new techniques at cyber and translated that into
ripping people off. What are the three big threats in your
view?
Mr. Black. So, Senator, our CIO certainly would be able to
rattle them off. During my period of time with the agency, we
have seen those threats change. Depending on how we adapt, the
fraudsters quickly adapt to try to continue to defraud.
I think a number of fraud schemes that we have seen more
recently can be something as simple as calling one of our
beneficiaries, a senior citizen, and telling them that there is
a problem with their account.
Senator Wyden. How does a call like that go, because I
think you are absolutely right with respect to the nature of
the rip-off artist. What we learned back in the day was that
the bad guys always seem to be one step ahead of the good guys.
And of course at that point, there were far fewer sophisticated
tools. So it has become a lot easier for them. I am convinced
there is an offshore problem now. The threats are global now.
What do these calls look like? I mean, give us an example.
I am Mr. Jones, and I am home. How did these play out? What
would be a typical one?
Mr. Black. So for the American public that might be
watching, the Social Security Administration will rarely call
you and ask for information over the phone without properly----
Senator Wyden. So that is number one.
Mr. Black. That is number one.
Senator Wyden. First thing people ought to know is Social
Security does not call you and try to pry out a lot of personal
information on the phone.
Mr. Black. And certainly we will not threaten you if you
fail to provide that information.
Senator Wyden. And the people, the rip-off artists, they
are not exactly subtle, as I remember it from back in the day
about the threats. They pretty much say that unless you
cooperate with them, you know, western civilization is going to
end and you are going to be one of the first to suffer. I mean,
they are pretty straight about that, right?
Mr. Black. Yes, our IG, our new IG, has put out a number of
bulletins that that is exactly what is happening with some of
these calls right now. They are very aggressive. They are very
forceful.
So if anyone should have a call like that, they should
immediately hang up. It is not the Social Security
Administration.
Senator Wyden. Good.
Well, I would have, normally, additional questions, but my
friend and Pacific Northwest colleague, Senator Cantwell--who
is very knowledgeable on these issues and the rights of seniors
and what we are looking at today--is here, and she is getting
settled very quickly.
Senator Cantwell. Thank you, Mr. Chairman. Thank you for
allowing me to ask questions here.
I wanted to ask Mr. Black about Administrative Law Judge
issues. Administrative Law Judges perform very important roles
for Social Security benefit cases, such as appeals. And it is
essential that they remain independent, and not politically
influenced in making decisions.
However, in July 2018, the President issued an executive
order to reclassify ALJs so they can be selected not through
the Office of Personnel Management. And basically, it gives
agencies the ability to hire anybody whom they want instead of
using the OPM process.
So that is why I have introduced bipartisan legislation,
Senate bill 3387, to restore the ALJs to their competitive
service. If confirmed, will you commit to respecting the
independence of the ALJs at the Social Security Administration?
And what steps would you take to restore them to a competitive
service system?
Mr. Black. I can unequivocally commit to respecting the
independence of our ALJs. When the American public appears
before the Social Security Administration for a hearing, they
have to have confidence in the fact that they are going to get
a fair due process hearing.
Senator Cantwell. Independent--they can certainly say, ``I
am independent,'' but you expect them to be a professional ALJ?
Mr. Black. Yes, Senator.
Senator Cantwell. Knowledgeable about the subject area that
they are overseeing, not having any conflict of interest--these
issues are enormously important. They basically are a legal
step in the process for a lot of issues for these Social
Security beneficiaries. Is that not correct?
Mr. Black. Yes, Senator.
Senator Cantwell. Okay.
So what do you think helps establish that professional
legal perspective for ALJs? What are the kinds of criteria that
you think meet the criteria for an ALJ in this particular area,
Social Security?
Mr. Black. So, Senator, my experience with the agency--I
think each agency has different criteria that they are looking
for in an ALJ. What makes a good ALJ at the Social Security
Administration may not necessarily be the same skill set that
makes an excellent ALJ at the U.S. Patent and Trade Office.
What I, as agency leader, and I am sure other agencies
would look for, are common things that you look for in an
attorney: outstanding background, knowledgeable, can quickly
learn any new area of the law, ethical, and will guarantee the
American public a fair due process hearing.
For the Social Security Administration, we are the face of
the agency for a number of individuals, vulnerable populations.
So what I would look for in an Administrative Law Judge is
someone who has empathy and someone who can be compassionate to
someone who is waiting for the disability benefits decision
sometimes 600 days or more.
So you have from me, Senator, a commitment that, regardless
of the process that is in place, whether it is working through
OPM or the agency having to define its own process for hiring
ALJs, we are only going to hire the best.
Senator Cantwell. Thank you, and I did not quite hear the
word--well you said ``independent'' earlier, I think. But what
I am concerned about is that agencies, instead of a
professional hiring service, are going to get involved in
saying, ``Oh, this person will agree with us on these issues.''
Basically getting the court, the lawyer to agree with the
agency, as opposed to reviewing the issue based on the law and
the individual constituents we all are trying to serve.
If I could just switch--I do not know if anybody asked
about Social Security field offices and the closures, but
Washington seniors, like many people, need access to those
benefits and those offices. According to a Washington Post
article, nearly one in 10 Social Security offices has been
closed since 2000. I know in our State, benefit offices in 2012
were closed in the Belltown and International districts, and
then merged into one office in the Jackson Federal Building. So
this is something that ends up requiring transportation.
So will you commit to reviewing how these field offices are
affecting services and how you would prioritize in-service
benefits?
Mr. Black. Yes, Senator.
Senator Cantwell. Okay.
Given that many beneficiaries are elderly and lack easy
online access, how would you balance in-person and online
services?
Mr. Black. Senator, I think that balance is important. As I
mentioned in my opening, my mother still lives in rural North
Dakota. The nearest field office is still an hour commute away.
So I firsthand understand the importance of having that
balance, having that physical presence. My mom has gotten
pretty good with the iPhone to see the grandkids, but she does
not have the Internet in her house. She does not own a
computer. And I am sure that she represents other individuals
like that across the country.
So we definitely believe in that balance at the agency. But
at the same time, we do know people want those online services.
So we will be committed to enhancing them and making them more
secure for those who want to do----
Senator Cantwell. Okay.
And just one more, if I could, Mr. Chairman.
The SSA backlog--I do not know if anybody has asked about
that yet this morning, but obviously it is a very substantial
backlog. Currently 915,000 people are awaiting hearing on their
appeal. An average wait time is 598 days.
So SSA has been implementing the CARES Plan to reduce that
backlog. And so to me, this is one of the big priorities. I
just believe that that waiting time is way too long, given the
complexity and challenges that we are facing in the Pacific
Northwest with housing and homelessness and everything else. So
we just need people to be given an answer and a due process.
If confirmed, what steps will you take to ensure that the
CARES Plan to reduce the backlog actually gets initiated and we
see the intended results that we are hoping to see?
Mr. Black. Senator, I agree with you that those backlogs,
those wait times, are unacceptable. The agency has, due in
large part to the additional funding that Congress has given,
focused on those backlogs and wait times. Myself, Mr. Saul, if
confirmed, would continue that aggressive executive focus to
bring attention to those issues.
We will review every single business process and find out
if there are additional ways to be more efficient, to move more
quickly, but with quality, and as you said, ensure individuals
that they have that due process.
Senator Cantwell. Thank you.
Thank you, Mr. Chairman.
Senator Wyden. I think Senator Cantwell was really getting
into these issues with respect to the field offices. And we do
have major concerns in the Pacific Northwest. I want to echo
her points.
I was just curious. When I am home, I hear a lot about wait
times in the field offices. And you know, you look and you see
backlogs and the like, and I have been in Social Security
offices recently, and when they open up, there is a line around
the block. And Mr. Saul touched on this.
And while we wait to see if any other Senators are on their
way, I was curious, apropos of Senator Cantwell's questions,
what the story was on the wait times. And are we getting those
reduced in terms of people's being able to predict, and not
just think they are showing up and, you know, they are going to
still be standing there when it is time for corn flakes the
next morning?
Mr. Black. Senator, I cannot give specifics on exact
minutes of a wait, but I do know, as Mr. Saul testified last
fall, we know it is still a problem. And Mr. Saul and I would
be committed to addressing that problem.
I think he accepted your invitation to travel to some of
those regional field offices. That is a priority for him and
me. I will agree with Senator Carper, who said you have to get
out there and walk around. I agree with that.
I think, as I mentioned before, the employees of the Social
Security Administration are very dedicated and very good at
what they do. I expect that we will get ideas from them on how
we can improve some of those wait times. We want to experience
it ourselves, see those lines, and talk to folks about how we
can improve those wait times.
Senator Wyden. You are getting a sense of how many Senators
care about the importance of your work, and Social Security.
And one of the country's great advocates for seniors and
those on Social Security, Senator Brown, has arrived. And let
us just recognize him for any questions he has. I know he is
trying to get his papers and stuff----
Senator Brown. Has Senator Cantwell gone already?
Senator Wyden. Yes.
Senator Brown. All right. Thank you.
I apologize for arriving late. Thank you both for joining
us. Senator Wyden, thank you.
I want to follow up on a question, on an issue--Senator
Casey has not been here, apparently, but he and I have been
working on this. You have talked about serving in the Social
Security Administration, Senior Agency Official for Privacy. I
appreciate your work in that regard.
I want to ask you about other administration proposals to
monitor the social media accounts of people applying for Social
Security disability benefits. This is deeply troubling. It
amounts to--say the word--``spying'' on the American people.
What you can actually determine about a person from their
Facebook account is questionable at best and raises serious
privacy concerns.
My question is, Mr. Black, is the Social Security
Administration spying on the social media accounts of Americans
applying for disability benefits?
Mr. Black. Senator, I appreciate hearing your concerns
directly today. I know that you and Senator Casey have written
formally to the Acting Commissioner.
Currently, the agency does not use social media, except for
CDI units that are specially trained to look for fraud. The
proposal of which you speak--if confirmed, Mr. Saul and I will
really want to dig into any proposal on the table. We
understand your concerns about privacy.
I would, at a minimum in reviewing any proposal, want to
look at the cost-benefit analysis. Is the investment of scarce
resources worth any benefit? I would want to look at the
business process to address your privacy concerns to see if it
is even practical to implement such a policy. And finally, but
certainly not least, I would ensure that any proposal would go
through formal public rulemaking so that it could be informed
by the public and any concerns that they may have.
Senator Brown. So spying is okay, if the cost-benefit
analysis comes out right?
Mr. Black. No, Senator. When I say that, it is really
looking at--there are so many problems at the Social Security
Administration, my concern would be, is this a wise investment?
Senator Brown. Well, there are so many problems. And a big
part of the problem is, there are not enough employees to get
people Social Security checks, for Social Security to give them
the right amount, so they overpay--where the beneficiary had
nothing to do with the overpayment. The--I will not say
incompetence, because I think this government in Washington,
particularly the past few years, the Republican House and
Senate, has underfunded Social Security. So they make more
mistakes. So people overpay, and it makes their lives harder.
I think all that is true. But it just seems with scarce
resources, dedicating some of those resources to spying on
people--and I do not know any other term but spying. If you are
looking at somebody who is getting Social Security Disability,
or is about to receive it, or is being considered, and you are
looking on their social media accounts to find some kind of
behavior that Big Brother thinks is inappropriate, that they
should not get the money--that is number one.
It is wrong in our name as citizens of this country--I
would call it immoral, second. And third, it is a lot of tax
dollars that could be used elsewhere. Correct?
Mr. Black. Yes, Senator.
Senator Brown. So tell me exactly what would happen now, if
you are confirmed and we move forward, and then you consider
using these social media accounts as you examine cases. You are
not denying that you are going to move forward and at least
look at that, correct?
Mr. Black. Senator, I know it is an interest of the
administration. I am not familiar with the specifics of any
proposal on the table. But I will commit to you today, if
confirmed, I will scrutinize any proposal that might be on the
table to see if it is something that the agency should continue
to pursue.
Senator Brown. So you said ``administration.'' Is this
directive or this brilliant idea coming out of--this idea to
spy on Americans, is this coming out of the White House?
Mr. Black. Senator, I think it was in the President's
budget that the agency would consider this, the use of social
media.
Senator Brown. Could I ask--and Senator Wyden or the
chairman--if you decide to move forward on this, would you,
either you or the Commissioner, come back here and testify
before you do it?
Mr. Black. Most definitely. I would commit to doing that
personally.
Senator Wyden. If my colleague would yield.
Senator Brown. Of course.
Senator Wyden. I just wanted to make sure that people
understood Senator Brown's important point. What you are
talking about is, if confirmed, you want those folks to come
back, right?
Senator Brown. Come back before they----
Senator Wyden. On a regular basis?
Senator Brown. Yes, and particularly if they are actually
considering moving in this direction to use social media to
determine eligibility and medical condition and all the things
that go into--and of course, I want you to deny benefits if
somebody has been fraudulent. But to use their social media
accounts, it is just--I mean, I know 1984 was not written in a
time when we had this kind of technology, but I mean, it is
1984 or Brave New World, or Yevgeny Zamyatin's book We, or any
one of these anti-utopian, dystopian books. I just think we are
better than that in this country.
Although, I also did not think we would have a President
who is a racist, and a President who thought it was okay to
separate families at the border. So maybe I am just living in
different times.
Thank you, Mr. Black.
Senator Wyden. Thank you, Senator Brown.
So I believe at this point we do not have colleagues on
either side of the aisle on their way. And so on behalf of the
chairman, we want to thank both of you gentlemen for your
attendance and participation. We appreciate all the families,
appreciate the good people at the Tax Court.
The chairman and I both want to thank Mr. Black and Mr.
Toro for their willingness to serve. And on behalf of the
chairman of the Finance Committee--he wants to make clear that
any member who wishes to submit questions for the record needs
to do so by the close of business on Tuesday, May 14th.
And with that, the hearing is adjourned.
[Whereupon, at 10:48 a.m., the hearing was concluded.]
A P P E N D I X
Additional Material Submitted for the Record
----------
Prepared Statement of David Fabian Black, Nominated to be
Deputy Commissioner, Social Security Administration
Chairman Grassley, Ranking Member Wyden, members of the committee,
thank you for holding this hearing.
Thank you, Senators Hoeven and Cramer, for that kind introduction.
Joining me today are my wife Hollie, who is an officer in the U.S. Air
Force, and our newborn son William, who at 10 days old is getting his
first civics lesson. Our daughters Olivia, who is almost 4, and Grace,
who is almost 2, are a little older and wiser and chose the playground
over dad's testimony.
I am proud to call North Dakota home because my time growing up on
a farm there charted the course for my character. While I grumbled at
hauling hay bales in the heat or feeding the livestock in the cold,
those early experiences taught me priceless life lessons, and I am
grateful for them. My parents instilled in me the importance of
honesty, hard work, self-reliance, responsibility, and a commitment to
selfless service.
This commitment is why I have dedicated most of my career to the
military and our civilian government. I have served for almost 29 years
in the military as an enlisted soldier and an officer on both active
duty and reserve duty, including deployments to Iraq and Afghanistan. I
am currently a Lieutenant Colonel in the U.S. Army Reserve.
My 8 years as SSA's General Counsel during both the George W. Bush
and Barack Obama administrations educated me not only about the agency,
but also about how its policies and practices play out for Americans
who depend on us. Given this insight, in 2016 when I was approached
about a transition role at the Department of Education where I worked
from 2004-2007, I suggested I could be of more help at SSA.
In my 10 years with SSA, I have witnessed how important it is for
the agency to manage its programs effectively to serve beneficiaries.
My parents raised 12 children on a limited income, so we worked hard to
make ends meet. I benefited from programs including Head Start, reduced
school lunches, summer jobs for low-income youth, Pell grants to attend
college, and the GI Bill. My mom relies on widow's benefits as her only
source of income. I understand firsthand the importance of government
programs for those who qualify. If confirmed, I will never lose sight
of the significance of SSA's work.
Being good stewards of SSA programs means getting the right amount
to the right person on time. The agency must continue its efforts to
eliminate payment error, waste, fraud, and abuse while ensuring that
its Social Security programs serve and are accessible to beneficiaries.
In some cases, this might mean we need to discuss program
simplification, which SSA employees seek and can make SSA's programs
easier for the public to understand.
The basics of public service must come first: answering calls,
reducing wait times in SSA offices, and issuing fair decisions. The
agency needs to evaluate all service channels and bring technology to
bear when it can improve public service.
The agency must also ensure the privacy and security of the
sensitive personal information the American public has entrusted to it.
As SSA's former General Counsel, I served as the Senior Agency Official
for Privacy. I know the agency takes seriously its responsibility to
protect this information, including ensuring that only the internal or
external people who need appropriate access to SSA's sensitive
information have it. In addition to these longstanding tenets of SSA's
disclosure policy, the agency must also stay ahead of persistent
cybersecurity threats.
I have spoken with Andrew Saul, the nominee for Commissioner of
Social Security, about our priorities. We share the same customer-
service focus and commitment to digging into the facts of challenges,
with an emphasis on accountability, action, and transparency. Our
priorities not only align with each other but also reflect issues of
great concern to this committee and the American public.
I believe in SSA's mission, and, if confirmed, I look forward to
working with you on these matters. Thank you. I will be happy to answer
any questions you have.
______
SENATE FINANCE COMMITTEE
STATEMENT OF INFORMATION REQUESTED
OF NOMINEE
A. BIOGRAPHICAL INFORMATION
1. Name (include any former names used): David Fabian Black.
2. Position to which nominated: Deputy Commissioner of the Social
Security Administration.
3. Date of nomination: April 17, 2018.
4. Address (list current residence, office, and mailing addresses):
5. Date and place of birth: October 17, 1968; Rugby, North Dakota.
6. Marital status (include maiden name of wife or husband's name):
7. Names and ages of children:
8. Education (list all secondary and higher education institutions,
dates attended, degree received, and date degree granted):
University of North Dakota: August 1987 to December 1990. BA
Political Science December 1990.
University of Minnesota Law School: September 1993 to May 1996.
Juris Doctorate awarded May 1996.
9. Employment record (list all jobs held since college, including the
title or description of job, name of employer, location of work, and
dates of employment for each job):
Econo Lodge, Rugby, North Dakota: Janitor, dishwasher, and
maintenance; summer during college 1988, 1989, 1990.
U.S. Army: March 1991 to September 1992; active duty for
training.
March 1991 to May 1991; basic training, Fort Leonardwood,
Missouri.
May 1991 to April 1992; Defense Language Institute,
Monterey, California; Russian linguist training.
April 1992 to September 1992; Goodfellow Air Force Base, San
Angelo, Texas; classified training.
Black family farm: Farmer/laborer, September 1992 to September
1993; Towner, North Dakota.
Minnesota Attorney General's office: May 1995 to September
1995, full-time law clerk; September 1995 to May 1996, part-
time law clerk; St. Paul, Minnesota.
UPS: May 1995-September 1995; part-time laborer (unloading
trucks); Minneapolis, Minnesota.
Black family farm: Farmer/laborer, May 1996 to January 1997;
Towner, North Dakota.
U.S. Army: January 1997 to May 2000; active duty Judge Advocate
General's Corps, military attorney; Fort Sam Houston, San
Antonio, Texas.
Self-employed/contract attorney: May 2000 to November 2001; San
Antonio, Texas. Represented individuals in labor and employment
legal actions.
Nelson, Mullins, Riley, and Scarborough: November 2001 to
November 2004, associate attorney, employment law; Columbia,
South Carolina.
U.S. Department of Education: November 2004 to October 2007,
Deputy Assistant Secretary, Office for Civil Rights;
Washington, DC.
Social Security Administration: October 2007 to July 2015,
General Counsel; Baltimore, Maryland.
July 2015 to January 2017: Unemployed. My wife is active duty
military. She was stationed in the United Kingdom. I resigned
from my position at SSA in July 2015, moved overseas, and cared
for our first child until I returned to SSA in January 2017;
Lakenheath, AFB, United Kingdom.
Social Security Administration: January 2017 to present, Senior
White House Advisor to the Commissioner of the Social Security
Administration; Baltimore, MD.
10. Government experience (list any current and former advisory,
consultative, honorary, or other part-time service or positions with
Federal, State, or local governments held since college, including
dates, other than those listed above):
In addition to the military and civilian Federal service listed
above, I have been a member of the U.S. Army Reserves since
July 1990. I enlisted in the Army in July 1990 and was a member
of the 134th Military Intelligence, BN at Fort Snelling,
Minnesota from July 1990 until I accepted my commission as an
officer in January 1997. When I left active duty as a military
attorney in May 2000, I transferred into the U.S. Army Reserves
as a military attorney. I was a member of the active U.S. Army
Reserves until I transferred into the Ready Reserve in November
of 2016.
11. Business relationships (list all current and former positions held
as an officer, director, trustee, partner (e.g., limited partners, non-
voting, etc.), proprietor, agent, representative, or consultant of any
corporation, company, firm, partnership, other business enterprise, or
educational or other institution):
While I was an associate for Nelson, Mullins, Riley, and
Scarborough, the firm assigned me to work in house with the
company Safety Kleen to provide in-house employment law advice.
12. Memberships (list all current and former memberships, as well as
any current and former offices held in professional, fraternal,
scholarly, civic, business, charitable, and other organizations dating
back to college, including dates for these memberships and offices):
Truman National Security Project, Defense Council member: 2013
to present.
American Bar Association: 2001-2004.
North Dakota, Texas, North Carolina, Minnesota, and South
Carolina Bar Associations: Membership tracks with license to
practice law when on active status.
13. Political affiliations and activities:
a. List all public offices for which you have been a candidate
dating back to the age of 18.
None.
b. List all memberships and offices held in and services
rendered to all political parties or election committees,
currently and during the last 10 years prior to the date of
your nomination.
None.
c. Itemize all political contributions to any individual,
campaign organization, political party, political action
committee, or similar entity of $50 or more for the past 10
years prior to the date of your nomination.
None.
14. Honors and awards (list all scholarships, fellowships, honorary
degrees, honorary society memberships, military medals, and any other
special recognitions for outstanding service or achievement received
since the age of 18.):
Phi Beta Kappa Society.
Military Awards: Parachutist Badge; Armed Forces Reserve Medal
with 10 year Device--Bronze; Armed Forces Reserve Medal with M
Device; Army Reserve Component Overseas Training Ribbon; Army
Service Ribbon; Non-Commissioned Officer Professional
Development Ribbon (2nd award); Global War on Terrorism Service
Medal; National Defense Service Medal (2nd award); Army Reserve
Components Achievement Medal (3rd award); Army Achievement
Medal (2nd award); Army Commendation Medal (3rd award); Iraq
Campaign Medal; Afghanistan Campaign Medal; Bronze Star Medal.
15. Published writings (list the titles, publishers, dates, and
hyperlinks (as applicable) of all books, articles, reports, blog posts,
or other published materials you have written):
Law school journal article: ``So You Want to Invest in Russia:
A Legislative Analysis of the Foreign Investment Climate in
Russia.'' University of Minnesota Journal of Global Trade,
1995.
``Employment At-Will in South Carolina, Going, Going, Gone?''
South Carolina Bar Employment and Labor Law Section Newsletter,
2003.
16. Speeches (list all formal speeches and presentations (e.g.,
PowerPoint) you have delivered during the past 5 years which are on
topics relevant to the position for which you have been nominated,
including dates):
None.
17. Qualifications (state what, in your opinion, qualifies you to
serve in the position to which you have been nominated):
I believe that I am qualified to serve as the Deputy
Commissioner of Social Security for the following reasons. I
have substantial work experience in the agency and a passion
for the agency and its mission. I served as SSA's General
Counsel from 2007-2015 and recently returned to the agency in
January of 2017 as a senior advisor to the Acting Commissioner.
I also have substantial work experience in administrative law
and policy. Furthermore, I have substantial management
experience. Finally, I have a strong commitment to public
service as evidenced by my 27 years in the U.S. Army, both on
active duty and the reserves as well as over 12 years of
Federal service at both the Department of Education and the
Social Security Administration.
B. FUTURE EMPLOYMENT RELATIONSHIPS
1. Will you sever all connections (including participation in future
benefit arrangements) with your present employers, business firms,
associations, or organizations if you are confirmed by the Senate? If
not, provide details.
Yes.
2. Do you have any plans, commitments, or agreements to pursue
outside employment, with or without compensation, during your service
with the government? If so, provide details.
No.
3. Has any person or entity made a commitment or agreement to employ
your services in any capacity after you leave government service? If
so, provide details.
No.
4. If you are confirmed by the Senate, do you expect to serve out
your full term or until the next presidential election, whichever is
applicable? If not, explain.
Yes, I would like to serve out my full term.
C. POTENTIAL CONFLICTS OF INTEREST
1. Indicate any current and former investments, obligations,
liabilities, or other personal relationships, including spousal or
family employment, which could involve potential conflict of interest
in the position to which you have been nominated.
None.
2. Describe any business relationship, dealing, or financial
transaction which you have had during the last 10 years (prior to the
date of your nomination), whether for yourself, on behalf of a client,
or acting as an agent, that could in any way constitute or result in a
possible conflict of interest in the position to which you have been
nominated.
None.
3. Describe any activity during the past 10 years (prior to the date
of your nomination) in which you have engaged for the purpose of
directly or indirectly influencing the passage, defeat, or modification
of any legislation or affecting the administration and execution of law
or public policy. Activities performed as an employee of the Federal
government need not be listed.
None.
4. Explain how you will resolve any potential conflict of interest,
including any that are disclosed by your responses to the above items.
(Provide the committee with two copies of any trust or other
agreements.)
Throughout my time at SSA, I have worked closely with the
agency ethics officials to avoid any potential conflicts of
interest. If confirmed, I will continue to work closely with
agency ethics officials and the Office of Government Ethics to
avoid any potential conflicts of interest.
5. Two copies of written opinions should be provided directly to the
committee by the designated agency ethics officer of the agency to
which you have been nominated and by the Office of Government Ethics
concerning potential conflicts of interest or any legal impediments to
your serving in this position.
Provided to the committee.
D. LEGAL AND OTHER MATTERS
1. Have you ever been the subject of a complaint or been
investigated, disciplined, or otherwise cited for a breach of ethics
for unprofessional conduct before any court, administrative agency
(e.g., an Inspector General's office), professional association,
disciplinary committee, or other ethics enforcement entity at any time?
No.
2. Have you ever been interviewed regarding your own conduct as part
of any such inquiry or investigation? If so, provide details,
regardless of the outcome.
No.
3. Have you ever been investigated, arrested, charged, or held by any
Federal, State, or other law enforcement authority for a violation of
any Federal, State, county, or municipal law, regulation, or ordinance,
other than a minor traffic offense? Have you ever been interviewed
regarding your own conduct as part of any such inquiry or
investigation? If so, provide details.
In 1996 I pled guilty to a misdemeanor charge of driving under
the influence. The arrest was in February of 1996. The charge
was filed in the 4th Judicial District of Minnesota, Hennepin
County, MN Clerk of Court, 300 S. 4th Street SE 201,
Minneapolis, MN 55415.
4. Have you ever been involved as a party in interest in any
administrative agency proceeding or civil litigation? If so, provide
details.
In 2007, while I was the Deputy Assistant Secretary of the
Office for Civil Rights at the Department of Education, an
employee filed a discrimination complaint based upon religion.
I was named as a responsible management official as his 2nd-
level supervisor. The claim was filed with the EEOC; however,
it was dismissed by the EEOC without a hearing. While serving
as the General Counsel of the Social Security Administration, I
was named as a responsible management official (4th line
supervisor) in two claims of discrimination based upon age. The
claims were related to promotions or assignment of work.
Neither of the cases went to a formal investigation, but I did
attend several ADR sessions to resolve the concerns of the
employees involved.
5. Have you ever been convicted (including pleas of guilty or nolo
contendere) of any criminal violation other than a minor traffic
offense? If so, provide details.
In 1996 I pled guilty to a misdemeanor charge of driving under
the influence. The arrest was in February of 1996. The charge
was filed in the 4th Judicial District of Minnesota, Hennepin
County, MN Clerk of Court, 300 S. 4th Street SE 201,
Minneapolis, MN 55415.
6. Please advise the committee of any additional information,
favorable or unfavorable, which you feel should be considered in
connection with your nomination.
I have no additional information to offer that I believe the
committee would consider important.
E. TESTIFYING BEFORE CONGRESS
1. If you are confirmed by the Senate, are you willing to appear and
testify before any duly constituted committee of the Congress on such
occasions as you may be reasonably requested to do so?
Yes
2. If you are confirmed by the Senate, are you willing to provide
such information as is requested by such committees?
Yes.
______
Questions Submitted for the Record to David Fabian Black
Questions Submitted by Hon. Chuck Grassley
Question. You served as Social Security's General Counsel from
October 2007 until July 2015. Social Security certainly needs legal
talent, since some of its decisions end up being subject to legal
challenges, and some of its proposed rules are carefully examined by
the legal community, among others. I wonder if there are any lessons
that you learned from your prior work as General Counsel at Social
Security about how the agency can better plan, coordinate, and use
taxpayer resources efficiently.
Answer. Support components like the Office of the General Counsel
(OGC) may benefit from more exposure to the rest of the agency with an
eye toward ensuring OGC is knowledgeable about and involved in an issue
before the issue becomes a crisis. As SSA's General Counsel, I
encountered instances when before we could provide advice we had to dig
through inconsistent answers to factual questions, because the data is
often fragmented and hard to access absent complicated and untimely
processes. Mr. Saul and I will have to discuss how to posture the
agency to be more proactive, ensure components are invested in each
other, improve data collection and availability, and reduce stovepipes
without introducing confusion about areas of responsibility.
Question. Social Security's Office of Inspector General has
expressed concerns about the quality of Social Security's long-term
planning and vision. In fiscal year 2015, Social Security published its
``Vision 2025'' report. But, the Inspector General said that it does
not include specific measurable goals. And, it doesn't outline
strategies needed to implement its proposed vision. Social Security
sometimes undertakes some big projects where it isn't always clear to
at least some of us on this committee how we can track whether the
agency is on track to meet its goals. It isn't always clear how we
should measure whether a project is succeeding or not. An example I'd
offer is the Disability Case Processing System. While I think Social
Security's responsiveness has improved of late, I wonder if you will
commit to working to ensure that we in Congress can keep track of how
your projects are going.
Answer. Yes. If confirmed, Mr. Saul and I will work to be
transparent about the progress we are making--and the challenges we
face--on major projects or initiatives.
Question. According to a recent SSA-funded survey, Americans'
knowledge of the workings of Social Security programs have declined in
recent years, which could be adding to wait times at field offices and
on the SSA 800 phone line as beneficiaries seek help to clarify how
programs work. In addition, when Social Security curtailed its mailing
of Social Security statements back in 2011, reported earning
corrections significantly increased, if I am not mistaken. How do you
think the agency could help Americans better understand Social
Security?
Answer. My understanding is that for many Americans, the Social
Security programs are not something they fully contemplate until the
time comes when they need them. SSA has a responsibility to make
information about its programs clear and easy to understand, but to
consider also how it can do so effectively and accessibly. The agency
has a number of online tools including the Retirement Estimator and the
Social Security Statement, and educational programs. As mentioned in
the President's budget, the agency is looking at ways to modernize the
Social Security Statement and its online tools to improve the public's
understanding of its programs. If confirmed, Mr. Saul and I would
review these current activities to assess what does and does not move
the literacy needle so that we can target what works. I understand that
Americans place significant trust in agency employees' expertise about
its programs, which drives direct contact. We will also need to
consider how to make SSA's programs user-friendly in terms of their
complexity.
Question. Social Security Disability Insurance determinations rely
on an official jobs list to determine whether or not individuals can
perform any job that exists in the national economy. Yet, that official
jobs list has not been updated for decades. While the list includes
outdated jobs such as ``telegram messenger,'' there do not seem to be
jobs related to what have become significant sources of employment,
such as jobs related to the Internet. Do you believe it is important to
update Social Security's jobs listings and working on a better way to
periodically update the listings?
Answer. Yes, I agree that the occupational source should be
updated. The agency has worked with the Department of Labor's Bureau of
Labor Statistics on an occupational requirements survey to collect
occupational information for use in the disability adjudication
process. The Bureau of Labor Statistics recently completed its third
year of data collection and has begun a 5-year refresh cycle, to ensure
that the data remains current. If confirmed as Deputy Commissioner, I
will make this initiative a priority and I will closely follow and
assess the agency's progress.
Question. I have heard that, even today, in the midst of IT
updating at the Social Security Administration, the agency has no way
to research whether an individual notice mailed to Americans causes an
increase or decrease in field office traffic, since current systems do
not allow for agency staff to sort on a ``customer'' across records. Is
this true? And, if so, do you believe that there would be utility in
trying to determine whether mailing of notices correlates with field
office traffic?
Answer. I am not specifically familiar with what data the agency
may (or may not) currently collect about whether a notice increases or
decreases field office traffic. However, it is fair to say that SSA
systems have historically evolved in a standalone fashion to solve an
immediate problem or address a new policy or workload. Thus, while
individual systems may interact with each other, they are not always
fully integrated. As I understand, the agency's current direction on IT
modernization is to create a person-centric approach to information, so
that SSA's various systems not only communicate with each other, but
also strive to store all information about a person's transactions with
the agency in a centralized manner. I agree that there is utility in
having management information that would help the agency improve
service delivery. If confirmed, Mr. Saul and I will look into this
area.
Question. From my experiences interacting with the Social Security
Administration (SSA), most SSA are dedicated and diligent people who
work hard to take care of the needs of the people they serve. However,
I have heard that agency practices could make it hard for managers in
the field to ensure that Americans are fairly served. For example, I
have heard that, after patiently waiting in a long waiting in a long
line at a SSA field office, some claimants are expected to talk by
phone to a claims representative who is teleworking from home. Are you
aware of any constraints on SSA that would impede attainment of a
balance between field office staffing and teleworking that provides the
best outcome for beneficiaries?
Answer. To more fully answer your question, I will need to learn
more about what is happening and how it affects public service, and I
will look into this if confirmed. I recognize the potential benefits of
telework when it allows for at least the same level of public service
as intended by the Telework Act. I am aware that employees who telework
enjoy that opportunity, and I support a positive work experience.
However, I agree that we must find balance and use telework and other
tools as solutions to best serve the public.
Question. As you are aware, SSA must provide support for a large
number of other Federal programs, including sharing of the Death Master
File, Medicare, Medicaid, e-Verify, the Help America Vote Act, some
Veteran's benefits, and so on. Some of this work may come with
significant administrative costs to SSA. If confirmed, what efforts
would you take to better quantify this work, assess agency
effectiveness in providing these services, and ``charging'' other
agencies or stakeholders for the fair market value of providing these
services?
Answer. The agency may use its funds only as authorized under
titles II and XVI of the Social Security Act. To the extent that the
agency carries out work for other purposes, SSA may be legally required
to seek reimbursement for such non-mission work. If confirmed, I will
ensure that the Office of the General Counsel is advising the agency to
assess necessary charges for providing such services, and I will work
with agency officials to improve the agency's ability to track non-
mission work.
Question. If confirmed, will you commit to working with Congress to
improve communications with the Social Security Administration with
respect to budget inputs into the agency and measures of agency output
that can be easily and consistently tracked over time?
Answer. Yes.
Question. The Social Security Administration has a variety of
``demonstration projects'' going on, to test possible programmatic
changes for effectiveness. However, it is not always clear that the
projects have completion times, projected milestones, or consistent
measures by which to gauge whether milestones are met. Lacking end
dates, the risk is that such projects can effectively morph into public
policy. Do you think that demonstration projects should have an end
date? If so, what actions would you take to ensure that projects are
set up with appropriate metrics for measurement of success or failure,
timelines, projected milestones to reach, and actual end dates?
Answer. I believe that demonstration projects should yield
meaningful information for policymakers in Congress. If confirmed, I
will look closely at SSA's demonstration projects, and I will aim to
review possible proposals before they leave the agency to ensure that
projects are designed with appropriate metrics, milestones, and
completion dates.
Question. Questions arose during your confirmation hearing in the
committee regarding potential integration by SSA of social media in
disability determination. Currently, adjudicators in the Social
Security Administration use social media information in evaluations of
some beneficiary claims when there is a report of investigation
containing social media information from a Cooperative Disability
Investigations unit. Other than that, at present, disability examiners
do not look at social media, as I understand things. I do not wish, in
this question, to discuss one way or another whether disability
adjudicators should utilize social media instruments. I do wonder,
however, if you are aware of whether or not disability insurance
claimants have used social media information in making their claims for
benefits.
Answer. I do not know whether or how many claimants use social
media information in making their claims for benefits. While SSA's
rules do not specifically refer to social media, I would assume it is
possible that a claimant might submit some type of social media
information as evidence from a nonmedical source.
Question. I want to follow up on my question at your confirmation
hearing regarding the Disability Claims Processing System, known as
DCPS, that has been under development by the Social Security
Administration (SSA) since June of 2008. This committee has closely
monitored DCPS since a failed first attempt to build DCPS cost
taxpayers $356 million. The second attempt to develop DCPS, known as
DCPS2, began in July 2015, with cumulative program spending through
fiscal 2018 having reached more than $483 million. Further, in
testimony during Fall 2018 before the Ways and Means Social Security
Subcommittee, SSA stated it needs at least $177 million more in funding
and cannot guarantee that it can fully replace the existing systems
without even more taxpayer funding The lack of progress of DCPS2 has
been documented through ongoing reports by the Office of Inspector
General (OIG).
Further, I have heard some concerns about SSA possibly impeding or
blocking States from making fair comparisons of DCPS and commercial
off-the-shelf alternatives. As you know, the Fiscal Years 2018 and 2019
Labor, Health and Human Services, Education, and Related Agencies
appropriations report included language directing SSA to take the
necessary actions that would permit States the ability to select from
all available options in the modernization of their case processing
systems.
As documented by the OIG in their report, Congressional Response
Report: Use of the Disability Case Processing System as of May 2018,
SSA's own Risk Management Plan acknowledged the risk of SSA's potential
inability to convince DDS users of the value and advantage of DCPS
negatively affecting DDS adoption rates.
How would you ensure that States' interests are adequately
accommodated with respect to system choice and your thoughts about the
risk that DCPS adoption rates by DDSs will fall below SSA's
expectations?
Answer. The Disability Case Processing System (DCPS2) is part of an
enterprise-wide integration of electronic case processing systems
across SSA offices and components, as well as State Disability
Determination Services (DDS). As a common national system, DCPS2 will
yield substantial benefits to the government and citizens. These
benefits include more efficient case processing, improved citizen
service, reduced administrative costs, ease in sharing of workloads
across processing sites, more consistent policy-based decisions through
case analysis tools support, and nationally implemented software
enhancements and modifications.
Regarding accommodation of States' interests, development of DCPS2
emphasizes a primary focus on DDS user input in every aspect of product
development. Therefore, numerous DDS personnel across the Nation are
driving the progress and development of DCPS2 on a daily basis. The
ongoing, nationwide DDS input into DCPS2 product development and user
experience will culminate in a product built by users to suit their
case processing needs. DCPS2 product development is scheduled to
complete in September 2019. To date, DCPS2 is currently deployed to 21
of 52 DDSs, with an additional 27 DDSs that have requested and are
being scheduled to deploy DCPS2 in calendar years 2019 and 2020.
If confirmed, I will ensure that States' interests continue to be
heard, correctly considered, and appropriately acted upon.
Questions Submitted by Hon. Tim Scott
Question. You've been at the SSA since nearly the start of this
administration, and you've likely observed my efforts in the past few
years to direct the agency to build a sophisticated anti-fraud SSN
verification system to assist in combating synthetic I.D. fraud, which
disproportionately impacts children. These efforts culminated in the
enactment of my Protecting Children From Synthetic Identity Theft Act,
which was signed into law as section 215 of S. 2155 last Congress. I am
hopeful that implementation of this legislation can move forward
efficiently, given the severity and urgency of the challenge we're
attempting to address--particularly for young Americans. The longer it
takes to get this system up and operational, the more fraudsters will
be able to victimize people by committing synthetic ID fraud. If
confirmed, how will you oversee the implementation of this law to
ensure that implementation is carried out in the most expedient manner
possible?
Answer. The agency should work to implement legislation enacted by
Congress as efficiently as possible. I understand that agency
executives have been meeting with representatives from the banking
industry, as well as with privacy experts, to ensure that the agency is
appropriately meeting the requirements of the legislation. I understand
the major challenge is scaling the system to handle possibly hundreds
of millions of verifications annually while ensuring only appropriate
disclosure of personally identifiable information. If confirmed, I will
work closely with those agency officials who are responsible for
implementation, and will be keep you posted on our progress.
Question. As has been the history with the legacy Consent-Based SSN
Verification service that my law replaces, users of the system have
provided the funding to build and maintain it through user fees and
enrollment fees. In keeping with this, the new law directs SSA to
collect in advance half the costs needed to implement the new
requirements from industry. If confirmed, what steps will you take to
ensure your agency does not impose a cost on users so prohibitively
high as to make the system--and Congress's goal of protecting consumers
from fraud--unfeasible?
Answer. Since enactment of this legislation, I know the agency has
spent considerable time looking at how to efficiently implement a new
electronic system to perform electronic SSN verifications with
financial institutions. In addition, as mentioned above, agency
executives have been meeting with representatives from the banking
industry, as well as with privacy experts. However, the agency's aging
IT infrastructure does limit, to an extent, its ability to expand upon
existing systems to meet new statutory requirements. That is why the
agency has been working on a 5-year IT modernization initiative, which,
when completed, would allow for more expeditious implementation of new
legislative mandates. If confirmed, I intend to spend a great deal of
time making sure the agency carries forward its IT modernization plan
as efficiently and as cost-effectively as possible.
Question. If confirmed, you will be assuming a senior leadership
role at one of the most important Federal bureaucracies in the Federal
Government. In the past, however, this agency has struggled to work
efficiently and to embrace modernization and necessary change. With my
law, Congress is pushing SSA to move beyond its old way of doing
business and instead modernize to provide services needed by a diverse
and sophisticated constituency. I am concerned that an adherence to
legacy policies and procedures could get in the way of implementing
section 215, perhaps even running contrary to the clear intent of
Congress. How will you ensure implementation will follow the law that
my bipartisan colleagues and I enacted?
Answer. I agree that this legislation presents an opportunity for
the agency to improve the process by which it provides identity
verification services to the financial industry. In the same way that
modernization of the agency's legacy IT infrastructure will improve
service in benefit-paying programs, modernization such as that provided
in the legislation opens opportunities to improve the verification
service it provides to external parties. In addition, as former General
Counsel at the agency, I agree that it is of the utmost importance that
the agency carefully implement legislation according to the letter of
the law and the intent of Congress.
______
Questions Submitted by Hon. Todd Young
Question. You mentioned in your testimony that the ``basics of
public service must come first,'' such as answering calls and reducing
wait times. Additionally, the Office of the Inspector General at the
Social Security Administration identified improving customer service as
one of the top management challenges for fiscal year 2019.
If confirmed, what will you do to address the current customer
service deficiencies at the Social Security Administration?
Answer. The OIG is correct to flag this area. I understand that SSA
has many competing priorities--answering phones and timely serving
people in its offices should always be at the top. Mr. Saul and I need
to evaluate resources and how they are currently being used. We need to
find out what data we have and what that data says about service
channels to inform our decisions on modernizing policies, how we
deliver service, and improving wait times across service channels. I
also want to look at data about retention particularly in lower graded
jobs where employees may be able to find better paying jobs in the
private sector or even leave for opportunities at other agencies. To
fix the problem, we need to understand the problem. We also need to
hear from agency employees, unions, Congress, and advocates about their
experiences.
Question. Today, the Social Security Administration relies heavily
on its IT infrastructure, which includes telephone services,
videoconferencing, and the Internet. With the continuous growth of
retirees and beneficiaries, the projected workload will only increase.
The Social Security Administration is currently implementing its IT
modernization plan with a commitment to replace outdated core systems
with technologies related to artificial intelligence, predictive
analytics, mobile connectivity, and the cloud.
What is your strategy to reduce IT operating costs and modernize
the agency's IT infrastructure while remaining within budget?
Answer. The agency initiated a 5-year IT modernization plan in FY
2018 to improve its IT infrastructure and increase its technical
flexibility to adapt to future demands and workloads. Congress has
provided dedicated funding in support of that plan. As I understand it,
as the agency modernizes its IT infrastructure, it expects to improve
its claims taking process, improve the quality of the data used to make
decisions on eligibility and payment, and improve communications with
beneficiaries and recipients. In addition, a major objective of the
agency's IT modernization plan is to reduce IT and other operating
costs by adopting modern technologies. As Mr. Saul testified last Fall,
we believe that improving the agency's IT is a strategic priority and,
if confirmed, I will work closely with Mr. Saul to assess the agency's
current IT modernization plan, make appropriate adjustments (as
needed), and ensure the plan's completion.
Question. Additionally, what cybersecurity plans do you have to
ensure the safety of all Americans' information?
Answer. Improving cybersecurity is critical for any Federal agency,
but certainly for an agency like SSA. I understand that threats in this
area are always evolving and that SSA must remain vigilant to protect
against cyber-attacks. The agency works closely with the Office of the
Inspector General, the Department of Homeland Security, and others in
constantly evaluating its cybersecurity readiness. In addition, in
recent years, the agency has placed an emphasis on bringing in experts
to handle cybersecurity and evolving its IT infrastructure and
practices to better protect against cyber-attacks and the loss of
personally identifiable information. If confirmed, Mr. Saul and I will
dig into this critical area to assess the agency's cybersecurity
posture and plans and, as necessary, make adjustments.
______
Questions Submitted by Hon. Ron Wyden
Question. Why do you believe you are the right person to be Deputy
Commissioner of Social Security?
Answer. I have dedicated the majority of my adult life to public
service, both in the military and our civilian government. This
includes 8 years as SSA's General Counsel during both the George W.
Bush and Barack Obama administrations. My experience at SSA has
educated me not only about the agency, but also about how its policies
and practices play out for Americans who depend on us. I have witnessed
how important it is for the agency to manage its programs effectively
to serve beneficiaries.
Question. If confirmed, what duties do you expect will be assigned
or delegated to you by Mr. Saul (should he be confirmed)?
Answer. Mr. Saul and I have discussed managing the agency as a
team. If confirmed, given my experience at the agency and knowledge of
the agency's programs, I will take an active role in operational issues
with an eye towards improving the service, experience, and outcomes for
the American public.
Question. Will you commit to maintain the field office option for
our constituents who need or prefer to meet with a real person?
Answer. As Mr. Saul testified last year, the agency needs to have
the right balance of services for beneficiaries. I appreciate the
current need to maintain local offices where beneficiaries can access
face-to-face services. At the same time, given the increasing public
expectation for and acceptance of online services, the agency needs to
continue to enhance its online services, while also investing in a more
robust suite of online services.
Question. As the Social Security Administration continues to
develop a new hiring process for Administrative Law Judges, will you
commit to develop a process that selects individuals based solely on
merit and without considering their political affiliations or
connections?
Answer. Yes.
Question. If confirmed, do you pledge to this committee and to the
American public that you will discharge your duties in an independent
and non-partisan manner?
Answer. Yes.
Question. When you served as General Counsel of the Social Security
Administration, would you have recommended the agency pursue illegal
executive orders in defiance of a court ruling? If confirmed, will you
push the agency to cease pursuing its legally questionable position
concerning labor unions and management relations?
Answer. As General Counsel, I would not have provided advice that
was not legally defensible. If confirmed, I will advise Mr. Saul and
guide the agency to act in accordance with the law, and would not
pursue any unlawful course of action.
Question. If you and Mr. Saul are both confirmed, how do you plan
to eliminate the backlog of disability hearings without neglecting
customer service?
Answer. As I understand, the agency has made considerable progress,
as the disability hearings backlog has gone from a high of over 1.1
million pending at the end of fiscal year 2016, to less than 700,000 in
April 2019 and is on track to eliminate the backlog in 2021. While
service has improved, any wait times above the 270-day goal is
unacceptable, and Mr. Saul and I will be focused on continuing to
implement the agency's backlog reduction efforts.
As you point out, the agency must also be mindful of maintaining
and improving its customer service in other areas, including in its
field offices, processing centers, and teleservice centers. We will
have to strike the right balance in moving forward to maintain and
improve service in all areas. To that end, if confirmed, I will look
closely at SSA's budget and its numerous workloads to better ensure
resources are targeted appropriately and spent wisely. As Mr. Saul
testified last Fall, we will work to improve service and to make the
right decision as early as possible in the process. If Mr. Saul and I
determine that based on our budget, we are not able to address certain
workloads, we will be transparent with Congress about this.
Question. If you are confirmed, how will you ensure that Americans'
data and personal information are protected from all forms of cyber-
attacks at every stage of SSA's business operations?
Answer. Improving cybersecurity is critical for any Federal agency,
but certainly for an agency like SSA. I understand that threats in this
area are always evolving and that we need to remain vigilant to protect
against cyber-attacks. The agency works closely with the Office of the
Inspector General, the Department of Homeland Security, and others in
constantly evaluating its cybersecurity readiness. In addition, in
recent years, the agency has placed an emphasis on bringing in experts
to handle cybersecurity, and it is evolving its IT infrastructure and
practices to better protect against cyberattacks and the loss of
personally identifiable information.
Question. What are your views on staffing front-line positions,
including management, in SSA's field offices and teleservice centers?
Answer. I do not think there is a one-size-fits-all approach that
would work at SSA. That being said, ideally the agency should have as
many front-line employees as are needed to ensure that it provides
quality service.
Question. What is your plan for ensuring SSA provides a quality
workforce in terms of hiring, training, and retaining staff while at
the same time being faced with restricted or reduced budgets?
Answer. I think there are several factors to consider. There may be
a perception that Federal service is not as attractive as it once was;
however, SSA's mission is so clear and easy to embrace and almost
everyone has a personal story about the agency. I mentioned in my
testimony that we need to be open to policy simplification. In some
areas, SSA's program policies may be too complex for employees to
implement well, for the public to understand, and for IT to automate
easily. SSA employees raise these concerns and are aware of the
inefficiencies that can arise from program complexity, and I believe we
should pay close attention to what employees would seek to change.
Question. What will you do to make sure claimants are better
informed about the SSDI claims process?
Answer. I would like to understand more about any specific concerns
regarding the extent to which claimants are uninformed about the SSDI
claims process. The agency maintains a lot of information on its
website about claiming disability benefits and, in addition, claimants
can seek information about the claims process on the agency's 800
number or in field offices. The agency can look for ways to improve its
communications with the public, but it would be helpful to understand
the nature of the concerns. If confirmed, I will work with your staff
to get more information on this issue from your perspective.
Question. What steps would you take to restore the balance between
support for field office activities and online service?
Answer. I appreciate that SSA needs to be responsive to people who
want to come in person, people who find a call more comfortable and
convenient, and people who want to do as much as they can online on
their own. Balance is the right word. Another important word is
resources. SSA can only meet service goals if it has sufficient
resources and Congress has been helpful in recent years. But even with
that support, Mr. Saul and I will have to pick where we do and do not
spend money. We can certainly look for areas where resources can be
rerouted to the frontlines, work with SSA's IG to identify waste, and
objectively review and improve current service channels. To the extent
SSA is able to simplify its programs, it will create opportunities to
improve automation, make notices clearer, and reduce the need for
people to have to make contact with the agency while also making SSA
staff more efficient.
______
Question Submitted by Hon. Thomas R. Carper
Question. As I discussed at your nomination hearing, I've been
working on curbing improper payments for some time. In Fiscal Year 2017
the government made about $140 billion in improper payments, so we
clearly have a lot of work ahead to reduce wasteful spending. I was
pleased to see in your testimony that you believe the ``agency must
continue its efforts to eliminate payment error, waste, fraud, and
abuse.''
One way I believe the Social Security Administration (SSA) can
achieve this goal is by allowing all appropriate Federal agencies to
have access to the SSA's death database to ensure program integrity.
Preventing improper payments to deceased individuals would save the
Federal Government millions of dollars and, in certain instances, help
agencies better administer their programs.
SSA currently uses a narrow definition of ``benefits-paying
agencies,'' which results in SSA's full death file being shared with
only eight Federal agencies. Due to this narrow definition, the SSA is
not sharing the most complete, accurate, and timely death data widely
across the Federal Government and several agencies such as the
Department of Justice and the Department of the Treasury's ``Do Not
Pay'' Business Center (which screens Federal payments before they go
out the door to ensure they are not improper) do not have access to the
SSA's full death file, increasing the likelihood of improper payments
being made to deceased individuals.
If confirmed, will you commit to reviewing SSA's definition of
``benefits-paying agencies''?
Answer. SSA collects and maintains death data in order to
administer the Social Security and SSI programs. The majority of this
death data comes from the States. SSA pays the States for the States'
death information, and must follow both its agreements with the States
and the Social Security Act in weighing any request to share State
death information with external parties. If confirmed, I will commit to
reviewing SSA's legal and policy framework for sharing information with
external parties, including death information.
On a related note, I understand the President's budget includes a
legislative proposal that would authorize the agency to share State
death information with Treasury's Do Not Pay portal.
______
Questions Submitted by Hon. Sherrod Brown
Question. Last August, Judge Ketanji Brown Jackson issued a
decision reversing the executive orders relating to union collective
bargaining agreements. Prior to that decision, SSA was particularly
aggressive as compared to other Federal agencies in its enforcement of
these executive orders, having reduced official time, confiscated union
equipment, and locked union members from their spaces. In the face of
that ruling, SSA has continued this harsh treatment of its union-
represented employees in their collective bargaining agreement
negotiations.
Should you be confirmed, how will you ensure that SSA remains fair
and balanced in its relations with its Federal employee unions?
Answer. SSA's primary mission is to provide optimal service to the
American public. To that end, it is important for SSA to have
constructive and fair engagement with the unions. If confirmed, I will
advise Mr. Saul and guide the agency to act in compliance with the
Federal Labor-Management Relations Statute and all applicable laws.
Question. Should you be confirmed, will you follow the judge's
decision striking the executive orders (EOs) and ensure that elements
of these EOs are not memorialized in collective bargaining agreements
with SSA's employees?
Answer. If confirmed, Mr. Saul and I will guide the agency to
comply with all applicable laws.
______
Questions Submitted by Hon. Robert P. Casey, Jr.
Question. SSA has evaluated monitoring the social media accounts of
Americans who receive disability benefits to help determine eligibility
for these benefits. Such invasive proposals go against the original
intent of SSDI and would seemingly represent an irresponsible use of
SSA's limited funding.
Do you support the use of monitoring social media to determine
initial eligibility and ongoing eligibility for SSI or SSDI? If so,
describe the parameters under which you would recommend the agency
would use social media data when making eligibility and continuing
eligibility decisions.
If you support the use of monitoring social media for initial and
ongoing eligibility for SSI and SSDI, provide a rationale for using
social media information, including ensuring the data is reliable,
guidelines for how to interpret the information, and how the
information should be used in conjunction with the medical information
provided by physicians and other health care professionals.
Do you support diverting funds allocated to reduce wait times for
SSI and SSDI eligibility decisions to be used for social media
monitoring? If yes, provide a rationale why funds should be diverted
from efforts to reduce wait times. What level of funding would you
recommend be used for social media monitoring of applicants and current
recipients of SSI and SSDI?
Answer. I appreciate the concerns that you and others have raised
about the possible use of social media in determining eligibility for
SSA's disability programs. Though I am not yet fully immersed in the
issue, as an initial matter, I believe there are privacy questions
about the use of social media information in making disability
determinations, and I have questions about the utility of social media
information in evaluating disability claims. If confirmed as Deputy
Commissioner, I will take a hard look at the utility of using social
media in the disability adjudication process. In addition, the agency
would seek public input before finalizing any particular policy.
I would note that social media information is being used by
Cooperative Disability Investigations (CDI) units, which are led by
SSA's Office of the Inspector General. These units play a role in
combating fraud and abuse within SSA's disability programs and, as part
of the Bipartisan Budget Act of 2015, Congress has supported the
expansion of the CDIs to cover all 50 States. As I understand, the CDI
units, when they already have some evidence to support a possible
allegation of disability fraud, may use social media information to
further assess the possibility that fraud has occurred. These units
have law enforcement resources that are trained in using investigative
tools in the course of their investigation. I believe such use of
social media by trained CDI units, led by the Office of the Inspector
General, may be effective.
Question. SSA is responsible for several key Medicare functions,
including providing basic education about when and how to sign up for
Medicare and processing Medicare enrollment. Increasingly, people new
to Medicare are delaying retirement beyond age 65. Without adequate,
advance notification, these individuals often lack sufficient
information on when and how to sign up for Medicare. The consequences
of enrollment missteps, particularly in Medicare Part B, can be
significant and may include lifetime late enrollment penalties as well
as lengthy gaps in coverage.
Will you commit to an evaluation of SSA's processes and procedures
for educating individuals approaching Medicare eligibility about basic
Medicare enrollment rules, including how Medicare benefits coordinate
with other forms of insurance, Part B enrollment periods and coverage
start dates and eligibility for and enrollment in Medicare low-income
support programs?
Will you commit to working with my office to identify opportunities
to strengthen notification and resources for individuals nearing
Medicare eligibility?
How would you ensure that SSA will appropriately balance online
educational initiatives pertaining to Medicare enrollment with both
paper mailings and in-person assistance?
Will you provide information to my office about the resources made
available by the Centers for Medicare and Medicaid Services to SSA to
carry out the agency's functions related to Medicare, including those
related to enrollment and the administration of low-income programs?
And, will you provide information on any additional resources the
agency might need to improve upon those functions?
Answer. As Mr. Saul testified last fall, if confirmed, we will work
with Congress and the Administrator of CMS on ways to better educate
the public about Medicare enrollment.
Question. Created through Federal law, equitable relief is an
administrative process that allows people with Medicare to request
relief from SSA in the form of immediate or retroactive enrollment into
Part B and/or the elimination of a Medicare Part B Late Enrollment
Penalty (LEP). It is my understanding that SSA does not currently
collect or retain information on equitable relief cases, including the
number of cases processed, the outcomes of these requests or
information on the basis for these requests.
Will you commit to collecting basic, State-by-State data on
equitable relief cases (including the number requested, the outcome of
the requests, and the basis for requests) and ensure that data is made
available to my office?
Will you ensure this data collection process includes information
on current and former marketplace enrollees who seek time-limited
equitable relief, a process recently extended by CMS through September
30, 2019?
Will you provide my office with information on how SSA manages,
processes and decides equitable relief requests?
Will you provide information to my office on the extent to which
SSA trains field office staff regarding cases of equitable relief and
special enrollment periods?
Answer. As Mr. Saul testified last fall, I will review the data SSA
collects and maintains to determine whether it addresses your data
requests.
Question. SSA is in the process of adding the reconsideration step
back into the disability appeals process in 10 States, including
Pennsylvania. According to SSA's own analysis, roughly 20,000
Pennsylvanians may have to go through this additional step and could
see their wait time increase as a result in the first year alone. Wait
times in Pennsylvania and across the Nation are already unacceptably
long, and action must be taken to ensure no group is forced to wait
longer as a result of SSA pushing forward with this change.
On May 9, 2019, I sent a bipartisan letter with a number of my
colleagues to Acting Commissioner Berryhill requesting Congress be
frequently updated on the impacts of these changes. It is essential
that policymakers are able to tell immediately whether wait times are
worsening for any individuals applying for disability benefits and that
SSA take immediate corrective action if this does occur.
Will you commit to providing us with regular updates and data on
the impacts of the changes being made to the disability application
process in Pennsylvania and nine other States?
Answer. Yes.
Question. If SSA sees that the addition of the reconsideration step
is worsening wait times for any group of applicants, can you commit to
taking immediate action to reverse such an increase in wait times?
Answer. I will be direct and transparent with the Congress about
the anticipated effects of policy or process changes on claimants and
beneficiaries. In addition, I commit to engaging in a dialogue about
possible or intended changes to policies or processes. It may be that
certain changes would result in short-term outcomes that may not appear
beneficial but that, in the longer term, improve the administration of
the programs and, ultimately, decrease wait times for claimants or
beneficiaries.
Question. Prior to the U.S. Supreme Court's affirmation of the
constitutional right to marry for same-sex couples in Obergefell vs.
Hodges, discrepancies between the recognition of same-sex marriage
among the States and the Federal Government created confusion. During
this period, SSA needed to decide how to address claims from same-sex
couples residing in States that had not yet recognized same-sex
marriage. Following the ruling, SSA also had to decide how it would
respond and how quickly it would respond.
Prior to the ruling in Obergefell vs. Hodges, were you involved in
the decision-making process concerning how to address discrepancies
between States and the Federal Government regarding recognition of
same-sex marriages? If yes, what role did you play and what position
did you recommend SSA take?
Answer. After the Supreme Court decided United States v. Windsor on
June 26, 2013, the Department of Justice (DOJ) coordinated with Federal
agencies to implement the decision. Over the following 2 years, SSA
worked closely with DOJ as SSA revised its policies in light of Windsor
and the numerous changes to State law resulting from the litigation
that followed Windsor. That litigation, which more broadly challenged
the constitutionality of State law bans on same-sex marriage, resulted
in the Supreme Court's 2015 decision in Obergefell. Staff in SSA's
Office of the General Counsel under my direction provided legal advice
to SSA regarding the changes to SSA's policies that were required by
Windsor and subsequent litigation, served on the intra-agency Windsor
workgroup that drafted revised instructions for agency approval, and
coordinated SSA's implementation of Windsor and subsequent litigation
with DOJ.
Question. After the ruling in Obergefell vs. Hodges, were you
involved in the
decision-making process concerning how to change SSA practices in
response to the ruling? If yes, what role did you play and how did you
recommend SSA respond?
Answer. The Supreme Court decided Obergefell on June 26, 2015, at
approximately the same time as I left my position as SSA's General
Counsel. I was not involved in SSA's decision-making process regarding
its implementation of Obergefell.
Question. SSA has endured years of budget cuts and freezes that
have taken their toll on the agency's ability to serve the American
public. Over the last decade, SSA has seen staff numbers fall and a
significant number of field offices close. This has impacted SSA's
ability to provide high-quality service at a time when the agency's
workload is growing rapidly.
How would you prioritize front-line service at SSA field offices
and teleservice centers to ensure that the agency is able to respond to
the needs of a growing beneficiary population?
Will you commit to being transparent and forthcoming with Congress
about the level of administrative funding SSA needs to meet all of its
statutory obligations and maintain essential front-line services?
Answer. Yes. As Mr. Saul testified last year, I believe in
efficient, timely, and accurate service, and protecting taxpayer funds
through effective management of the Social Security programs. If
confirmed, I will look closely at SSA's budget and its numerous
workloads to better ensure resources are targeted appropriately and
spent wisely. If we find that additional resources are warranted, we
will be transparent with Congress.
Question. SSA has expended significant resources developing MySSA
and is continuing to prioritize expanding overall online services.
While this can help SSA manage its growing workload if implemented
correctly, many Americans may not be able to utilize online services or
may prefer applying for benefits or having their questions answered at
a field office or over the phone. In many rural areas of Pennsylvania,
in particular, access to broadband Internet is limited.
What steps would you take to balance between support for field
office activities and online service and ensure that expansion of
online services does not come at the expense of in-person services?
Answer. As Mr. Saul testified last year, the agency needs to have
the right balance of services for beneficiaries. I appreciate the need
to maintain local offices where beneficiaries can access face-to-face
services. At the same time, given the increasing public expectation for
and acceptance of online services, the agency needs to continue to
maintain and enhance the services that are available online. As more
people use SSA's online services, especially for more straightforward
transactions, field office employees would have greater availability to
handle issues that are more complex and to serve individuals who are
unable to access online services.
Question. Will you commit to working to keep Social Security field
offices open and to maintaining the critical in-person services
provided by these field offices?
Answer. Yes.
______
Prepared Statement of Hon. Chuck Grassley,
a U.S. Senator From Iowa
Today, the Finance Committee will hear from two nominees.
David Black has been nominated by the President to be Deputy
Commissioner of the Social Security Administration, where he is
currently working as the White House Senior Advisor. Mr. Black spent
nearly 9 years at Social Security, between 2007 and 2015, as the
agency's General Counsel.
Mr. Black is well-qualified for the position of Deputy
Commissioner. And I'm pleased that we seem to be making progress in
getting a confirmed Deputy Commissioner and a confirmed Commissioner in
place at Social Security.
Social Security has not had a confirmed Commissioner since February
of 2013.
As this committee knows, we have acted in committee to favorably
approve President Trump's nominee for the Commissioner position, and I
trust that his nomination will be taken up in the full Senate in the
near term.
Social Security is a large agency, paying out more than $1 trillion
in benefits. Its administrative budget is above $12.25 billion.
The programs that the Social Security Administration oversees are
also large. Last year, Social Security paid benefits to around 63
million people. That includes retirees, dependents, survivors, and
disabled workers.
Somewhere around 175 million people paid payroll taxes into Social
Security on their earnings.
Despite the success we had in 2015 in averting benefit cuts in the
Social Security Disability Program, Social Security overall remains on
an unsustainable fiscal path. Its combined trust funds are projected to
be exhausted in just 16 years or less, depending on the estimates that
you use.
Everything that I have seen indicates that Mr. Black will work to
protect taxpayer resources and ensure that Social Security's benefit
programs will run as efficiently and as effectively as possible. And
that's what hardworking American taxpayers deserve.
And let me say that I want to see that Social Security programs are
put on a sound financial footing so they succeed for the American
people.
We will also hear from Emin Toro, who has been nominated to be a
judge on the U.S. Tax Court. The Tax Court is very important because it
provides taxpayers a venue to resolve tax disputes with the IRS before
actually having to pay the amount in question. Though based in
Washington, DC, the Tax Court does not require taxpayers to travel to
DC, but holds sessions in cities across the country throughout the
year. The schedule posted to the Tax Court webpage for the fall shows
sessions set to be held in 47 cities. There aren't many courts that
make an effort to bring the courtroom to you.
Taxpayers need to know that they are treated fairly and have a
chance to make their case to an impartial judge in a disagreement with
the IRS. The Tax Court gives all taxpayers, from large corporations to
individuals, a chance to make their arguments in an independent forum
and know they have received a fair hearing. The Tax Court is
particularly important to individuals who cannot afford expensive
attorneys to help them resolve their issues with the IRS. I applaud the
efforts that the Tax Court takes to help these taxpayers representing
themselves work through the process and receive a full and fair hearing
of their cases.
Thank you both for your willingness to serve, and now I turn to
Ranking Member Wyden.
______
Prepared Statement of Emin Toro, Nominated to be a
Judge of the United States Tax Court
Chairman Grassley, Ranking Member Wyden, and members of the Finance
Committee, it is a privilege and honor to be here today. Thank you for
holding this hearing to consider my nomination to serve as a judge on
the United States Tax Court. I would also like to express my thanks to
the committee staff for their support throughout this process.
I am delighted to have family, friends, and colleagues with me here
today. I am particularly grateful to my parents Salih and Lavdie Toro,
who from my earliest days taught me to work hard and be kind; to my
wife Katie, whose love and support is an immeasurable source of
strength; to my children Juliana, Sebastian, and Emilia, who bring such
joy to us; and to my sister Rudina and brother-in-law Jason Powell,
whose friendship enriches our lives.
I am grateful to the President for the nomination and the
opportunity, if confirmed, to serve our great country. When I first
came to the United States from Albania as a senior in high school, I
had no idea I might one day appear before a committee of the U.S.
Senate as a nominee for a Federal court. I was too busy learning how to
write research papers to think of such things. But it is a credit to
this great Nation that the path to public service is open to all--
including those who only recently started calling this country their
home.
Credit also goes to those who, looking beyond an unusual name and
an accent, were willing to support my development, both as a lawyer and
as a person--people like Judge Karen LeCraft Henderson and Justice
Clarence Thomas, who gave me my start in the law; my professors at Palm
Beach Atlantic University and the University of North Carolina School
of Law, who made me a better thinker and writer; my colleagues at
Covington, who helped me learn how to solve problems and resolve
controversies; and my pastors and mentors in West Palm Beach, Durham,
and Falls Church, who taught me to have faith and serve others. It is
thanks to their efforts and God's grace that I appear before you today.
The opportunity to serve on the Tax Court is exciting for someone
who has spent the last 16 years working on tax issues. In that time, I
have had the opportunity to resolve client controversies with the
Internal Revenue Service, advise clients on complicated tax issues in
the United States and abroad, and represent clients before the Tax
Court. Through my clerkships at the U.S. Court of Appeals for the
District of Columbia Circuit and the U.S. Supreme Court, I saw first-
hand how many tax and non-tax cases were litigated. These experiences
have given me a strong understanding of our tax laws and the litigation
process for tax cases. Through them I have come to appreciate the key
role trial courts play in our judicial system and the hard work
required to hear and decide cases.
Legal practice and service in the community have taught me that
usually there are two sides to every dispute and that wise decisions
require careful listening, thorough evaluation, impartial judgment, and
fairness. My work at Covington and while clerking has also instilled in
me a deep commitment to collegiality. I trust that these perspectives
will facilitate the workings of the Tax Court, especially given its
collegial decision-making process and the need for a uniform
application of the law in light of the Court's nationwide jurisdiction.
Finally, my personal background gives me a deep appreciation for
the U.S. Constitution, the American legal system, and the importance of
the rule of law. If confirmed by the Senate, I would strive each day,
in the words of the judicial oath, to ``administer justice without
respect to persons, and do equal right to the poor and to the rich,''
and in so doing serve the country to which I owe so much.
I look forward to answering the committee's questions.
______
SENATE FINANCE COMMITTEE
STATEMENT OF INFORMATION REQUESTED
OF NOMINEE
A. BIOGRAPHICAL INFORMATION
1. Name (include any former names used): Emin Toro.
Family in Albania call me ``Besnik,'' which is an Albanian
translation of ``Emin.'' Also, I have sometimes used Emin S.
Toro, where ``S.'' stood for my father's name ``Salih,'' a
common practice for stating a person's name in Albania.
2. Position to which nominated: Judge, United States Tax Court.
3. Date of nomination: April 10, 2018.
4. Address (list current residence, office, and mailing addresses):
5. Date and place of birth: November 10, 1974; Tirana, Albania.
6. Marital status (include maiden name of wife or husband's name):
7. Names and ages of children:
8. Education (list all secondary and higher education institutions,
dates attended, degree received, and date degree granted):
Asim Vokshi School (Tirana, Albania), 1989-1992, no degree
received.
The King's Academy, 1993, high school diploma granted June
1993.
Palm Beach Community College, 1995, no degree received.
Palm Beach Atlantic University, 1993-1997, bachelor of arts,
summa cum laude, granted May 1997.
University of North Carolina, Chapel Hill, 1997-2000, Juris
Doctor, with highest honors, granted May 2000.
9. Employment record (list all jobs held since college, including the
title or description of job, name of employer, location of work, and
dates of employment for each job):
Intern, Templeton and Co. (West Palm Beach, FL), 1996-1998.
Summer associate, Robinson, Bradshaw, and Hinson, P.A.
(Charlotte, NC), Summer 1998.
Summer associate, Pepper Hamilton (Washington, DC), Summer
1998.
Research assistant, UNC School of Law (Chapel Hill, NC), Spring
1999.
Summer associate, Cleary, Gottlieb, Steen, and Hamilton (New
York, NY), Summer 1999.
Law clerk to the Honorable Karen L. Henderson, U.S. Court of
Appeals for the District of Columbia Circuit (Washington, DC),
2000-2001.
Associate, Covington and Burling LLP (Washington, DC), 2001-
2002.
Law clerk to the Honorable Clarence Thomas, Supreme Court of
the United States (Washington, DC), 2002-2003.
Associate and partner, Covington and Burling LLP (Washington,
DC), 2003-present.
10. Government experience (list any current and former advisory,
consultative, honorary, or other part-time service or positions with
Federal, State, or local governments held since college, including
dates, other than those listed above):
None.
11. Business relationships (list all current and former positions held
as an officer, director, trustee, partner (e.g., limited partners, non-
voting, etc.), proprietor, agent, representative, or consultant of any
corporation, company, firm, partnership, other business enterprise, or
educational or other institution):
Chair of the board of trustees, Rivendell School (Arlington,
VA), 2017-present.
Member of the board of trustees, Rivendell School (Arlington,
VA), 2015-present.
12. Memberships (list all current and former memberships, as well as
any current and former offices held in professional, fraternal,
scholarly, civic, business, charitable, and other organizations dating
back to college, including dates for these memberships and offices):
Member, New York Bar, 2001-present.
Member, District of Columbia Bar, 2001-present.
Fellow, American College of Tax Counsel, 2017-present.
Vice chair, Continuing Legal Education Committee, ABA Tax
Section, 2012-present.
Appointments to the Tax Court Committee, ABA Tax Section, 2014-
present.
Nominating Committee, ABA Tax Section, 2016-present.
Secretary, Taxes Committee, International Bar Association,
2015-2017.
Vice chair, Taxes Committee, International Bar Association,
2017-present.
The J. Edgar Murdock American Inn of Court, 2011-present.
Taxes Committee, International Bar Association, 2007-present.
ABA Tax Section, special assistant to the vice chair,
government relations, 2006-2007.
ABA Tax Section, 2006-present.
North Carolina Law Review, articles editor and staff member,
1999-2000.
History Club, International Club, and Challenge Bowl team,
1994-1997.
The Falls Church (Anglican) (Falls Church, VA), 2002-present.
McLean Presbyterian Church (McLean, VA), 2001-2002 (regular
attendee).
Church of the Good Shepherd (Durham, NC), 1998-2000.
Berean Baptist Church (West Palm Beach, FL), 1994-1997.
13. Political affiliations and activities:
a. List all public offices for which you have been a candidate
dating back to the age of 18.
None.
b. List all memberships and offices held in and services
rendered to all political parties or election committees,
currently and during the last 10 years prior to the date of
your nomination.
None.
c. Itemize all political contributions to any individual,
campaign organization, political party, political action
committee, or similar entity of $50 or more for the past 10
years prior to the date of your nomination.
Campaign for Election of Justice David Stras, Minnesota Supreme
Court, 2012, $250.
Covington and Burling LLP Political Action Committee, $125
monthly since August 1, 2009.
14. Honors and awards (list all scholarships, fellowships, honorary
degrees, honorary society memberships, military medals, and any other
special recognitions for outstanding service or achievement received
since the age of 18):
Fellow, American College of Tax Counsel, 2017-present.
Recognized by Chambers USA--Tax, Legal 500 US--Tax, and
Washington DC Super Lawyer.
Winner of scholarship by Taxation Committee of the
International Bar Association to attend the 2008 IBA Annual
Conference based on paper that analyzed new arbitration
procedures contained in certain tax treaties and the OECD model
treaty entitled ``Avoiding Double Taxation Through Binding
Arbitration: A Comparative Review'' (May 19, 2008).
The University of North Carolina School of Law (Chapel Hill,
NC).
Dean's list, all semesters, ranked 1/222.
Edgar S.W. Dameron, Sr. Scholarship (scholarship for outstanding
performance in law school).
Certificate of Merit (for highest grade in section): Corporate
Finance, Spring 2000; Mergers and Acquisitions, Spring 2000; Securities
Regulation, Spring 2000; Antitrust, Fall 1999; Banking, Fall 1999;
Corporate Tax, Fall 1999; International Business Transactions, Fall
1999; Business Associations, Spring 1999; European Perspectives on the
Law, Fall 1998; Law and Economics, Fall 1998; Property, Spring 1998;
Research, Reasoning, Writing, and Advocacy, Spring 1998; Torts, Spring
1998; Criminal Law, Fall 1997; Property, Fall 1997.
Gressman and Pollitt Award for Outstanding Oral Advocacy, Spring
1998.
Palm Beach Atlantic University (West Palm Beach, FL).
Outstanding University Graduate, 1997 (selected #1 graduate in
class).
Outstanding Graduate of the Rinker School of Business and
Outstanding Accounting Student, 1997.
Recipient of the Society of Colonial Wars History Award, 1997
(for best history student).
Outstanding Freshman Supper Honors Scholar, 1994.
Recipient of The Frederick M. Supper Honors Scholarship (full
academic scholarship for 4 years).
15. Published writings (list the titles, publishers, dates, and
hyperlinks (as applicable) of all books, articles, reports, blog posts,
or other published materials you have written):
``Examination and Appeals,'' in Practical Guide to U.S.
Transfer Pricing (Robert T. Cole ed., Matthew Bender 3rd ed.
2015 and 2017 update) (co-authored with Reeves C. Westbrook and
Sam Maruca).
``Supplemental Unemployment Benefits Subject to FICA Tax,
Supreme Court Holds,'' March 25, 2014, Inside Compensation (co-
authored with Robert Newman), https://
www.insidecompensation.com/2014/03/25/supplemental-
unemployment-benefits-subject-to-fica-tax-supreme-court-holds/
?_ga=2.1578737.15540
69257.1526433414-557148540.1519933775.
``U.S. Seeks Supreme Court Review of Decision That Severance
Pay for Layoffs Is Not Subject to FICA Tax,'' June 3, 2013,
Inside Compensation (co-authored with Robert Newman), https://
www.insidecompensation.com/2013/06/03/u-s-seeks-supreme-court-
review-of-decision-that-severance-pay-for-layoffs-is-not-
subject-to-fica-tax/?_ga=2.71338004.622033976.1527537754-
557148540.1519933775.
``An Opportunity to Support U.S. Customs Valuations,''
International Tax Review, June 2012 (co-authored with David
Grace and Mateo Caballero).
Comment, ``Of Courts and Rights: Constitutionalism in Post
Communist Albania,'' 25 North Carolina Journal of International
Law and Commercial Regulation 485 (2000).
16. Speeches (list all formal speeches and presentations (e.g.,
PowerPoint) you have delivered during the past 5 years which are on
topics relevant to the position for which you've been nominated,
including dates):
I have not given any formal speeches, but have participated in
bar association panels and other similar public events, which
are listed below.
``To Litigate or Not To Litigate? Strategic Considerations in
Deciding Whether, When, and Where To Go to Court in Latin
America,'' June 15, 2017, co-chair of panel at the 10th Annual
U.S.-Latin America Tax Planning Strategies.
``The Terrible Two: Why Tax Reform and Transfer Pricing Are
Keeping Tax Directors Awake at Night,'' April 26, 2017;
panelist at CBIT's 32nd Annual Spring Tax Day.
``Tax Controversy: Handling Inspections, Audits, and Litigation
in an Electronic Environment,'' June 9, 2016, co-chair of panel
at the 9th Annual U.S.-Latin America Tax Planning Strategies.
``Binding Arbitration: A Comparative Overview,'' June 23, 2016,
ANEFAC Monterrey meeting in Washington, DC.
``The Impact of BEPS on APAs and Dispute Resolutions,'' May 14,
2016, panelist at 6th International Tax Retreat, Maisto e
Associati.
``Align Transfer Pricing Outcomes With Value Creation: Action
Items 8-10,'' April 28, 2016, co-presenter at TEI 2016 U.S.
International Tax Seminar--BEPS Is Now.
``Assistance in Tax Matters and Alternative Dispute Resolution
Methods,'' December 3, 2015, co-chair of panel at ``The New Era
of Taxation: The Keys to Providing Legal Advice on Tax Law in a
Rapidly Changing World'' IBA Conference in Mexico City.
``Recent Trends in the Negotiation and Application of Tax
Treaties in Latin America,'' June 12, 2015, co-chair of panel
at the 8th Annual U.S.-Latin America Tax Planning Strategies.
``Primer on Tax Treaties,'' January 31, 2015, panelist at ABA
Tax Section midyear meeting in Houston, TX.
``Navigating Tax Treaties: Getting and Keeping Treaty Benefits
in Uncertain Times,'' November 3, 2014, panelist at Tax
Executives Institute 2014 Annual Conference.
``Global Trends--Recent Experience in Tax Audits,'' October 22,
2014, co-chair of panel at the Annual IBA Conference in Tokyo,
Japan.
``Fear of flying or just worried about your co-pilot? Working
cross border and in association with lawyers from other
jurisdictions,'' October 21, 2014, panelist at the Annual
International Bar Association Conference in Tokyo, Japan.
``Treaties: A New Balance? Have Governments Become More Focused
on Preventing Fiscal Evasion Than Avoiding Double Taxation?'',
June 6, 2014, co-chair of panel at the 7th Annual U.S.-Latin
America Tax Planning Strategies.
``Do I Need an Expert?'', May 22, 2014, panelist at Tax
Executives Institute IRS Audits and Appeals Conference.
``Managing and Resolving Bilateral Tax Disputes,'' March 18,
2014, panelist at ABA Tax Section 2nd Annual International Tax
Enforcement.
``Cutting Your Losses: Where Did All My NOLs Go?'', October 10,
2013, co-chair of panel at the Annual International Bar
Association Conference in Boston.
``Trends in Interpretation and Application of Double Taxation
Treaties in Latin America,'' June 14, 2013, co-chair of panel
at the 6th Annual U.S.-Latin America Tax Planning Strategies.
17. Qualifications (state what, in your opinion, qualifies you to
serve in the position to which you have been nominated):
I have dedicated my professional career to helping clients
understand their Federal tax obligations. In more than 15 years
of practice, I have had the opportunity to resolve numerous
client controversies with the Internal Revenue Service and to
advise clients on complicated tax issues in connection with
their operations in the United States and abroad. I have also
represented clients before the United States Tax Court. During
my clerkships at the United States Court of Appeals for the
District of Columbia Circuit and the United States Supreme
Court, I had first-hand experience with litigation in many
cases, involving both tax and non-tax matters. These
experiences, as well as studies during and after law school and
participation in the activities of The J. Edgar Murdock
American Inn of Court (organized by the United States Tax
Court), have given me a strong understanding of our tax laws
and the litigation process for tax cases. Through them I have
come to appreciate the key role trial courts play in our
judicial system and the hard work required to hear and decide
cases.
In addition, legal practice and service in the community have
taught me that usually there are two sides to every dispute and
that wise decisions require careful listening, thorough
evaluation, impartial judgment, and fairness. These
characteristics are essential to a proper judicial temperament.
My personal temperament is aligned with these requirements and,
I believe, would be an asset to the United States Tax Court.
Furthermore, life at Covington and while clerking has instilled
in me a deep commitment to collegiality. In my view, results
are better and the work product stronger when colleagues
cooperate toward a common goal. I trust that this perspective
will facilitate the workings of the United States Tax Court,
particularly given its collegial (rather than individual)
decision-making process and the need for a uniform application
of the law in light of the Court's nationwide jurisdiction.
Finally, my personal background gives me a deep appreciation
for the United States Constitution, the American legal system,
and the importance of the rule of law. If confirmed by the
Senate, I would strive each day, in the words of the judicial
oath, to ``administer justice without respect to persons, and
do equal right to the poor and to the rich,'' and in so doing
serve the country to which I owe so much.
B. FUTURE EMPLOYMENT RELATIONSHIPS
1. Will you sever all connections (including participation in future
benefit arrangements) with your present employers, business firms,
associations, or organizations if you are confirmed by the Senate? If
not, provide details.
Yes, although I anticipate continuing my involvement with bar
associations and volunteering on the board of trustees of
Rivendell School.
2. Do you have any plans, commitments, or agreements to pursue
outside employment, with or without compensation, during your service
with the government? If so, provide details.
No
3. Has any person or entity made a commitment or agreement to employ
your services in any capacity after you leave government service? If
so, provide details.
No.
4. If you are confirmed by the Senate, do you expect to serve out
your full term or until the next presidential election, whichever is
applicable? If not, explain.
Yes.
C. POTENTIAL CONFLICTS OF INTEREST
1. Indicate any current and former investments, obligations,
liabilities, or other personal relationships, including spousal or
family employment, which could involve potential conflicts of interest
in the position to which you have been nominated.
If my investments, obligations, liabilities, or other personal
relationships give rise to potential conflicts of interest, I
will resolve such conflicts consistent with the rules of the
United States Tax Court, the Code of Conduct for United States
Judges, or 28 U.S.C. Sec. 455, including recusal.
2. Describe any business relationship, dealing, or financial
transaction which you have had during the last 10 years (prior to the
date of your nomination), whether for yourself, on behalf of a client,
or acting as an agent, that could in any way constitute or result in a
possible conflict of interest in the position to which you have been
nominated.
I am not aware of any existing conflicts. During the last 10
years I have represented clients before the Internal Revenue
Service and the U.S. Department of the Treasury in several
matters. I have also provided advice and counseling to clients
in connection with Federal income tax issues. Should any
matters in which I have been involved give rise to litigation
before the United States Tax Court in the future, I will
resolve any possible conflict of interest consistent with the
rules of the United States Tax Court, the Code of Conduct for
United States Judges, or 28 U.S.C. Sec. 455, including recusal.
3. Describe any activity during the past 10 years (prior to the date
of your nomination) in which you have engaged for the purpose of
directly or indirectly influencing the passage, defeat, or modification
of any legislation or affecting the administration and execution of law
or public policy. Activities performed as an employee of the Federal
Government need not be listed.
From time to time during the last 10 years, I have provided
technical assistance to colleagues at Covington whose practice
involves advocacy before Congress. I have not, however,
personally appeared before Congress.
In representing clients before the Internal Revenue Service and
Treasury, a lawyer as a matter of course makes arguments
supporting his or her client's position. In a broad sense, such
arguments are intended to ``affect the administration and
execution of law or public policy'' with respect to that
particular client. In that broad sense, my legal practice over
the years could be viewed as affecting the administration and
execution of Federal income tax law and policy.
In addition, in a narrower and more specific sense, in response
to the Internal Revenue Service's request for comments on the
potential application of the proposed Schedule UTP disclosure
requirements to partnerships and other pass-through entities,
my colleagues Elizabeth A. Bell and Jeremy D. Spector and I
submitted a comment letter (dated June 14, 2010) on behalf of a
group of interested partnerships that shared the Service's goal
of improving the fair and effective administration of the tax
system. A copy of the letter is enclosed.
4. Explain how you will resolve any potential conflict of interest,
including any that are disclosed by your responses to the above items.
I will adhere to all of the ethics rules applicable to judges
of the United States Tax Court and, when required by the rules
of the United States Tax Court, the Code of Conduct for United
States Judges, or 28 U.S.C. Sec. 455, recuse myself from
participating in matters that give rise to any conflict of
interest.
5. Two copies of written opinions should be provided directly to the
committee by the designated agency ethics officer of the agency to
which you have been nominated and by the Office of Government Ethics
concerning potential conflicts of interest or any legal impediments to
your serving in this position.
Not applicable.
D. LEGAL AND OTHER MATTERS
1. Have you ever been the subject of a complaint or been
investigated, disciplined, or otherwise cited for a breach of ethics
for unprofessional conduct before any court, administrative agency
(e.g., an Inspector General's office), professional association,
disciplinary committee, or other ethics enforcement entity at any time?
Have you ever been interviewed regarding your own conduct as part of
any such inquiry or investigation? If so, provide details, regardless
of the outcome.
No.
2. Have you ever been investigated, arrested, charged, or held by any
Federal, State, or other law enforcement authority for a violation of
any Federal, State, county, or municipal law, regulation, or ordinance,
other than a minor traffic offense? Have you ever been interviewed
regarding your own conduct as part of any such inquiry or
investigation? If so, provide details.
No.
3. Have you ever been involved as a party in interest in any
administrative agency proceeding or civil litigation? If so, provide
details.
No
4. Have you ever been convicted (including pleas of guilty or nolo
contendere) of any criminal violation other than a minor traffic
offense? If so, provide details.
No.
5. Please advise the committee of any additional information,
favorable or unfavorable, which you feel should be considered in
connection with your nomination.
None.
E. TESTIFYING BEFORE CONGRESS
1. If you are confirmed by the Senate, are you willing to appear and
testify before any duly constituted committee of the Congress on such
occasions as you may be reasonably requested to do so?
Yes.
2. If you are confirmed by the Senate, are you willing to provide
such information as is requested by such committees?
Yes.
______
Covington and Burling LLP
1201 Pennsylvania Avenue, NW
Washington, DC 20004-2401
Tel 202-662-6000
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https://www.cov.com/
June 14, 2010
Internal Revenue Service
CC:PA:LPD:PR (Announcement 2010-9)
Room 5203
P.O. Box 7604
Ben Franklin Station, NW
Washington, DC 20044
Re: Application of Proposed Schedule UTP to Partnerships
Dear Sir or Madam:
We write in response to the request for comments on the potential
application of the proposed Schedule UTP disclosure requirements to
partnerships and other pass-through entities. We represent a group of
interested partnerships that share the Service's goal of improving the
fair and effective administration of the tax system. While we
understand the Service's objective of increasing audit efficiency and
its belief that it can achieve this objective through the use of
Schedule UTP, we are concerned that extending the Schedule's filing
requirements to include partnerships will impose an undue burden on
partnerships, will contradict the policy considerations set out by the
Service in support of Schedule UTP, and may result in duplicative
reporting.
We therefore recommend that the Service continue to exclude
partnerships from the disclosure requirements of proposed Schedule UTP
in future tax years. As explained below, this approach achieves the
best balance between providing the Service the information that it
believes it needs for efficient tax administration and limiting the
burden imposed on taxpayers. Only in the event that this recommendation
is rejected and the Service decides to expand the reporting regime, we
urge that any requirement that partnerships file Schedule UTP be
limited to cases in which a partnership itself has potential income tax
liability.
1. Proposed Schedule UTP
On January 26, 2010, the Service issued Announcement 2010-9,\1\
which proposed that business taxpayers with total assets in excess of
$10 million be required to disclose to the Service uncertain tax
positions for which they have recorded a reserve under Financial
Accounting Standards Board Interpretation No. 48 \2\ (``FIN 48'') or
other similar accounting standards. FIN 48 requires a taxpayer to
assess the impact of its tax positions on its audited financial
statements. A ``tax position'' is a decision that can result in a
reduction of income tax payable, a deferral of income tax otherwise
currently payable, or a change in the ability to realize deferred tax
assets. The term ``tax position'' includes other positions and
decisions as well, including the classification of an entity as a pass-
through or tax-exempt entity.\3\
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\1\ 2010-7 I.R.B. 408 (February 16, 2010).
\2\ Financial Accounting Standards Board, ``Interpretation No. 48--
Accounting for Uncertainty in Income Taxes, an Interpretation of FASB
Statement No. 109'' (June 2006). FIN 48 has since been codified at FASB
ASC 740-10, pursuant to FAS 168, ``The FASE Accounting Standards
Codification and the Hierarchy of Generally Accepted Accounting
Principles.'' All references to FIN 48 in this comment letter refer to
FIN 48 as codified.
\3\ FASB ASC 740-10-65-2.
Announcement 2010-9 contemplated that taxpayers within its scope
would be required to include in their returns a schedule that would
provide a concise description of each uncertain tax position and the
maximum amount of potential federal tax liability that would be due if
the position were disallowed. Announcement 2010-9 also noted that
taxpayers are already required by FIN 48 to account for uncertain tax
positions.\4\
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\4\ 2010-7 I.R.B. at 408-09.
On March 5, 2010, in Announcement 2010-17,\5\ the Service indicated
that the schedule contemplated by Announcement 2010-9 would apply to
returns relating to tax years beginning in 2010.
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\5\ 2010-13 I.R.B. 515 (March 29, 2010).
On April 19, 2010, the Service issued Announcement 2010-30,\6\ a
draft of Schedule UTP,\7\ and draft Instructions for Schedule UTP \8\
(the ``Instructions''). The Schedule and Instructions require a
corporation that files Form 1120, 1120 F, 1120 L, or 1120 PC to file
the Schedule if (1) the corporation has assets equal to or exceeding
$10 million, (2) the corporation issues or is included in an audited
financial statement, and (3) the corporation has one or more tax
positions that must be reported on the Schedule.\9\ The Schedule
requires the reporting of federal income tax positions for which the
corporation or a related party has recorded a reserve in an audited
financial statement or for which no reserve has been recorded based on
an expectation to litigate or an IRS administrative practice.\10\
Announcement 2010-30 notes that the Service will not require pass-
through entities to file a Schedule UTP for the 2010 tax year.
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\6\ 2010-19 I.R.B. 668 (May 10, 2010).
\7\ Id. at 669-71.
\8\ Id. at 672-80.
\9\ Id at 673.
\10\ Id. at 672.
Pass-through entities themselves are not required to record a
reserve with respect to the tax liability of their owners. However, the
Instructions make clear that if a Schedule filer--i.e., a corporation--
records a reserve for a tax position taken by a partnership in which
the filer holds an interest, the filer must disclose that position.\11\
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\11\ Id. at 679.
2. Partnerships Should Continue To Be Excluded From the Requirement To
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File Schedule UTP
We agree with the Service's decision to exempt partnerships from
the requirements to file the Schedule for the 2010 tax year. We further
recommend, consistent with the policy considerations underlying
Announcement 2010-9, that partnerships not be required to file the
Schedule for future tax years.
(a) Requiring Partnerships To File the Schedule Would Impose a
Large Collective Burden While Providing the Service Almost No Useful
Information.
Over 3 million partnerships file federal income tax returns.\12\
Although partnerships have been subject to FIN 48 reporting
requirements since December 2008, almost none of them record reserves
under FIN 48. FIN 48 has little practical impact on the vast majority
of partnerships because income tax liability based on the activities of
a partnership is a liability of its partners, not of the
partnership.\13\ Partnerships themselves are typically not subject to
federal income tax liability, and thus will not record reserves related
to income tax positions.
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\12\ IRS Statistics of Income, Selected Returns and Forms Filed or
To Be Filed by Type During Specified Calendar Years, available at
http://www.irs.gov/taxstats/article/0,,id=175902,00.
html.
\13\ Financial Accounting Standards Board, Accounting Standards
Update No. 2009-06, Implementation Guidance on Accounting for
Uncertainty in Income Taxes and Disclosure Amendments for Nonpublic
Entities 1 (September 2009); see also, e.g., FASB ASC 740-10-55-226;
I.R.C. Sec. 1(h)(10) (defining partnerships as ``pass-through''
entities).
While it is conceivable that partnerships might have entity-level
income tax liability exposure, such exposure is extremely rare.
Specifically, under FIN 48, the term ``tax position'' includes an
entity's status, such as its status as a partnership.\14\ A
partnership's status could be uncertain if the partnership could
potentially be considered a publicly traded partnership under Section
7704 or if an election to be treated as a partnership under Treas. Reg.
Sec. 301.7701-3 could be considered defective. This issue is unlikely
to arise for all but a handful of partnerships, and we are unaware of
any other issues that would expose a partnership to entity-level
federal income tax liability.
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\14\ FASB ASC 740-10-65-2.
Mandating that partnerships file Schedule UTP after 2010 would
force the more than 3 million partnership filers to evaluate whether
they meet the criteria for filing, which would also require an
investigation of any related party's audited financial statements.
Thus, even though only the rare partnership will have an income tax
reserve and actually need to file Schedule UTP, every partnership would
need to expend resources to determine whether it is subject to the
Schedule UTP filing requirements. Imposing such an obligation on
partnerships would result in a very large collective burden for the
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sake of receiving an exceedingly limited amount of information.
(b) Requiring Partnerships To File the Schedule Would
Contradict the Policy Considerations Set Out by the Service in Support
of Schedule UTP.
Requiring that all partnerships engage in a Schedule UTP analysis
would run counter to the limited-burden rationale offered by the
Service in support of the Schedule UTP. As Announcement 2010-9 noted,
the scope of disclosures to be included in the Schedule is limited to
those uncertain tax positions the evaluation of which is already
mandated by FIN 48 or similar accounting standards.\15\ This was
intentional. The objective was for the Service to obtain additional
information without demanding additional analysis from taxpayers.
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\15\ 2010-7 I.R.B. at 408-09.
During his speech to the New York State Bar Association Taxation
Section explaining the motivations behind Announcement 2010-9,
Commissioner Shulman emphasized that the Service does not ``think we're
going to be adding substantial new work burden on taxpayers because
these taxpayers are already required to establish tax reserve for
uncertain tax positions. . . . So this is work that is already being
done.''\16\ Other IRS officials have echoed the burden-limiting aspects
of the proposal in various contexts. For example, Chief Counsel Wilkins
has stated that the IRS intends to rely on accounting processes already
in place and is not developing ``a new, IRS-written filter for issue
identification,''\17\ and Large and Mid-Size Business Division
Commissioner Maloy has observed that Schedule UTP reporting is merely
``factual''--that is, if a taxpayer makes a reserve decision, it must
simply disclose that decision.\18\
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\16\ Douglas H. Shulman, Commissioner, Internal Revenue Service,
Address at the New York State Bar Association Taxation Section Annual
Meeting (January 26, 2010).
\17\ William Wilkins, Chief Counsel, Internal Revenue Service,
Remarks at KPMG LLP Tax Governance Institute (March 2, 2010).
\18\ Heather Maloy, Commissioner, Internal Revenue Service Large
and Mid-Size Business Division, Remarks at American Bar Association
Section of Taxation May Meeting (May 7, 2010).
As described above, the burden that would be placed on partnerships
if they were subject to the new disclosure rules would be out of
proportion with any benefits that the Service might obtain from the
little information that would be reported as a result of such
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disclosure.
(c) Requiring Partnerships To File the Schedule May Result in
Duplicative Reporting.
As Commissioner Shulman has noted, taxpayers are legitimately
concerned about Schedule UTP imposing redundant reporting
requirements.\19\ Requiring partnerships to disclose tax positions
regarding their partners could result in duplicative reporting. Many
tax positions taken by partnerships are already captured by the
Schedule as currently drafted. For example, a corporate partner is
required by the Schedule and Instructions to disclose its tax positions
related to partnerships in which it holds an interest, along with the
EINs of the partnerships.\20\ Requiring a partnership to also report
this same information would be duplicative. Moreover, such a disclosure
requirement would impose an additional and unnecessary burden, contrary
to the IRS policy described above. Finally, and significantly, it would
exceed the scope of FIN 48, which applies only to partnerships' entity-
level federal income tax positions.
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\19\ Douglas H. Shulman, Commissioner, Internal Revenue Service,
Remarks at the Tax Executives Institute's 60th Midyear Conference
(April 12, 2010).
\20\ 2010-19 I.R.B. at 679. Example 1 of the draft instructions,
which discusses a corporation's reporting of its partnership's tax
position, illustrates this relationship. Id. at 674.
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* * *
In summary, while we understand the Service's interest in gathering
information that it believes could lead to a more efficient audit
process for the Service, we submit that requiring partnerships to file
Schedules UTP would not advance that objective in a meaningful fashion.
Moreover, such a requirement would, in the aggregate, impose
significant burdens on a large number of entities while providing few,
if any, of the benefits that the Service expects to obtain from
Schedules UTP. We therefore recommend that partnerships be excluded
from the requirement to file Schedule UTP.
3. If Partnerships Are Required To File the Schedule, the Requirement
Should Be Limited to Partnerships With an Income Tax Liability
Exposure.
If the Service rejects our recommendation, any extension of the
application of the Schedule UTP to partnerships should be restricted to
those tax positions that expose a partnership itself to federal income
tax liability. A broader application of the Schedule, such as requiring
a partnership to report a tax position that potentially affects only
partner-level liabilities, would require additional analysis that is
not currently undertaken at the partnership level. As noted above,
partnerships are required under FIN 48 to record reserves only for tax
positions that affect their own tax liabilities (such as positions
regarding the partnership's status as a pass-through entity). Moreover,
directing a partnership to report tax positions that might be relevant
to its partners would require the partnership to reevaluate its
positions from its owners' perspectives, which may be tied to different
materiality thresholds. Such an expansive application of the disclosure
requirements would be entirely inconsistent with the policy
considerations, and specifically the intent to limit additional
burdens, underlying Announcement 2010-9. Thus, while still imposing an
undue burden on most partnerships, narrowly tailoring any additional
reporting obligation of partnerships to reach only tax positions that
implicate entity-level reserves would at least limit this burden.
* * *
Thank you for your consideration of our views. We would be pleased
to provide more information in support of these comments or to be
available for discussion of the comments if that would be helpful.
Sincerely,
Elizabeth A. Bell
Jeremy D. Spector
Emin Toro
______
Questions Submitted for the Record to Emin Toro
Questions Submitted by Hon. Maria Cantwell
pro se plaintiffs
Question. If confirmed as a judge to the United States Tax Court,
you will be responsible for resolving difficult tax controversies
brought before you in large and small cases. Judges for the U.S. Tax
Court travel around the country and hear cases in 75 cities.
Oftentimes, volunteer tax practitioners provide assistance to
unrepresented taxpayers or pro se taxpayers as they navigate the
process of petitioning the IRS. These cases are often small businesses,
innocent spouses, or low-income tax payers.
As a judge for the U.S. Tax Court, what role would you play to
ensure that cases for pro se plaintiffs are being adjudicated in a fair
and timely manner?
Answer. The question addresses a critical issue. More than 75
percent of cases in the United States Tax Court are brought by
taxpayers who represent themselves, often referred to as pro se
taxpayers. For nearly 40 years, the Tax Court has worked with bar
associations, legal services organizations, and law schools to provide
representation to pro se taxpayers. As a result of these efforts, 134
low income taxpayer clinics have been established around the country
and are available in each of the 74 cities in which the Tax Court holds
trial sessions. In addition, nine calendar call programs run by bar
associations are available to assist pro se taxpayers during calendar
calls. The Tax Court advises pro se taxpayers of these opportunities
three times during the course of a case: (1) when the petition is
filed, (2) when the notice of trial is issued, and (3) 30 days before
the calendar call. Furthermore, on May 10, 2019, the Tax Court adopted
an order permitting practitioners before the Court to enter an
appearance limited to a date or dates during a scheduled trial session,
which should further facilitate the representation of pro se taxpayers
during a trial session. If confirmed, I would support these programs
and encourage pro se taxpayers to avail themselves of the resources
they provide. I would also encourage them to use the very helpful forms
and videos found on the Court's website. Moreover, to the extent pro se
taxpayers still decide to represent themselves, I would treat them, and
all litigants, with respect, explaining how the Tax Court works and
offering them an opportunity to have their concerns heard by a fair and
impartial judge. I would also work hard to narrow the disputes between
the parties and, after careful consideration, rule expeditiously on any
disputes that the parties cannot resolve themselves.
new tax law
Question. If confirmed as a judge to the United States Tax Court,
you will be responsible for interpreting how our tax laws apply for a
wide variety of plaintiffs from multinational corporations with large
numbers of lawyers serving as counsel to small businesses and
individuals who often appear before the court as plaintiffs pro se. As
the Internal Revenue Service reviews and publishes new regulations to
implement the 2017 tax bill, differences are emerging regarding the
interpretation of these tax provisions. Some of issues may result in
possible future litigation. And the U.S. Tax Court will be in a
position to help settle interpretation of many issues arising from the
2017 tax bill.
As a judge for the U.S. Tax Court, what role would you give to
legislative intent, conference report language, or statements from
members of Congress as you interpret and apply the previously
unlitigated tax law?
Answer. Because the United States Tax Court is a trial court with
national jurisdiction, appeals from its decisions are heard by 12
courts of appeals. Thus, in resolving a particular dispute before them,
Tax Court judges must be aware of, and apply, binding authority from
the court of appeals that would hear an appeal from that case, in
addition to precedent from the U.S. Supreme Court. Courts of appeals
take different views on the proper use of conference report language or
statements from members of Congress. In keeping with my obligation to
apply the law faithfully and impartially, I would follow the applicable
precedent from the U.S. Supreme Court and the circuit court of appeals
to which the case would be appealed on this issue.
administrative procedure act
Question. The Administrative Procedure Act sets the standard for
the way that Federal Government agencies propose and establish
regulations. Currently, there is discussion about how the
Administrative Procedure Act applies to tax guidance, rulings of
deficiency, and other determinations.
What is your opinion on the application or applicability of the
Administrative Procedure Act with respect to temporary regulations and
informal IRS guidance, such as notices, revenue procedures, revenue
rulings, and private letter rulings?
Answer. The application of the Administrative Procedure Act
(``APA'') in particular circumstances turns on whether a specific
agency action falls within the rules set out in the statute. For
example, the APA requires agencies to provide notice and an opportunity
for comment with respect to a ``proposed rule making.'' The statute
defines ``rule making'' as the ``agency process for formulating,
amending, or repealing a rule,'' 5 U.S.C. Sec. 551(5), and a ``rule,''
in relevant part, as ``the whole or a part of an agency statement of
general or particular applicability and future effect designed to
implement, interpret, or prescribe law or policy or describing the
organization, procedure, or practice requirements of an agency'' (5
U.S.C. Sec. 551(4)). Thus, application of the notice and comment
requirements of the APA to tax guidance turns on whether such guidance
constitutes a ``rule'' within the definition of the APA.
A decision on the application of the APA to the various types of
guidance noted in the question requires complex analysis. In deciding
cases that might come before me, if confirmed, I would carefully
consider the relevant law as well as additional briefing by the parties
before reaching a conclusion on the proper application of the APA to a
particular item of regulatory guidance.
______
Prepared Statement of Hon. Ron Wyden,
a U.S. Senator From Oregon
This morning the Finance Committee meets to discuss two important
nominations. David Black is nominated to serve as Deputy Social
Security Commissioner, and Emin Toro is nominated to serve as a judge
on the United States Tax Court. Let me start with Mr. Black's
nomination.
When you talk about Social Security, you're talking about a
lifeline for 69 million Americans. They're seniors, people with
disabilities, and other individuals who've earned their benefits after
years of paying into the program with each and every paycheck. Every
one of those 69 million people--and the generations who will come after
them--are counting on those who run the Social Security program to
maintain a high level of service.
Because of this committee and the hard work of dedicated advocates
for Social Security, the agency's administrative budget has improved
recently. Americans don't have to wait as long as they did a few years
ago for a hearing on a disability appeal, but there's a lot more work
to do. That's also the case with respect to improving and managing
Social Security IT infrastructure.
Those are among the key challenges Mr. Black will need to address
if he's confirmed. He's a qualified nominee who knows the ins and outs
of the Social Security Administration.
This morning, while we consider this nomination for SSA Deputy
Commissioner, I also want to remind the committee that Social Security
has not had a confirmed Commissioner in place since February 2013.
Bottom line, that's far too long for the top position to go unfilled.
Just like any government agency or any private business, SSA runs best
when it has strong leadership with a vision for how to improve. In my
judgement, the Senate should not confirm a Deputy Commissioner before
confirming the Commissioner.
Andrew Saul's nomination to serve as Commissioner has been approved
by this committee twice. I hope he's able to get on the job soon. I
also note that, in terms of going forward on the Senate floor, it would
be appropriate to take up the nomination of the Commissioner before
taking up the nomination of the Deputy Commissioner.
Now onto Emin Toro's nomination for the U.S. Tax Court. The U.S.
Tax Court may not generate a whole lot of conversation over America's
dinner tables, but it is the judicial backbone of the Federal tax code.
It's the best opportunity Americans have to dispute tax bills before
they have to pay, and it keeps them from getting stuck in slow-moving
courts when issues come up. The Tax Court is a big part of ensuring
fairness for taxpayers, and serving as a judge is a tough job that
requires a lot of time on the road. So I appreciate Mr. Toro's
willingness to serve.
I want to thank both of the nominees here today, and I look forward
to questions.
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