The U.S. Taxpayer Bill of Rights: Window Dressing or Expression of Justice?

Authors

  • Alice G. Abreu Professor of Law, Beasley School of Law, Temple University, Philadelphia, Pennsylvania, U.S.
  • Richard K. Greenstein Professor of Law, Beasley School of Law, Temple University, Philadelphia, Pennsylvania, U.S.

Abstract

The subject of taxpayer rights is receiving increasing attention worldwide. Tax scholars, practitioners, and administrators are grappling with the challenges of delivering on the promise of taxpayer rights, the benefits of success, and the price of failure. Nevertheless, a fundamental question has escaped pointed examination: What does the concept of taxpayer rights offer?

In this paper we suggest an answer to that question. Our focus is the U. S. Taxpayer Bill of Rights (TBOR). At first blush, the TBOR may seem to be no more than window dressing because it does not codify legal remedies for violations of the enumerated taxpayer rights. Nevertheless, we argue that by its explicit use of the language of rights and by its adoption by the IRS and enactment by Congress, the TBOR generates a powerful normative force that supports enforcement. That force, in turn, can change the behavior of the IRS toward taxpayers and support calls for Congress, Treasury, or the courts to fashion legal remedies. Put differently, there is strong reason to predict that the adoption and enactment of the TBOR will make the administration of the tax law more just.

Our format is a bit unconventional. What follows is a dialogue in which we ask and answer challenging questions. We believe this format clarifies the fundamental issues raised by the concept of taxpayer rights and best illuminates some of the tensions generated.

References

Abreu, A. & Greenstein, R. (2016). Tax as Everylaw: Interpretation, Enforcement, and the Legitimacy of the IRS. Tax Lawyer, 69, 493-512.

Affaire A.P., Garçon et Nicot c. France. (2017).

Anonymous (2014). Something Wrong in the Taxpayer Bill of Rights? Tax Notes 143, 1323.

Ault, H. (2013). Dispute Resolution: The Mutual Agreement Procedure, OECD Centre for Tax Policy and Administration, Paper No. 8-A. Retrieved from http://www.un.org/esa/ffd/tax/2013TMTTAN/Paper8A_Ault.pdf.

Austin, J.L. (1962). How To Do Things With Words. Oxford: Oxford University Press.

Baker, P. The Charter and the Law, (2008, September, 10). Taxation. Retrieved from http://www.taxation.co.uk/taxation/articles/2008/09/10/6852/charter-and-law.

Bodner, P. (1986). International Taxation: Competent Authorities Share Their Concerns, Tax Notes, 32, 573-575.

Caron, P. (1994). Tax Myopia, or Mamas Don’t Let Your Babies Grow Up to Be Tax Lawyers. Virginia Tax Review, 13, 517-590.

Confessore N. & Luo, M. (2013, May, 26). Groups Targeted by I.R.S. Tested Rules on Politics. New York Times. Retrieved from http://www.nytimes.com/2013/05/27/us/politics/nonprofit-applicants-chafing-at-irs-tested-political-limits.html?pagewanted=all&_r=0.

Cook v. Tait. (1924) 265 U.S. 47.

EEOC v. Arabian Am. Oil Co. (1991) 499 U.S. 244, 248 (1991).

Ferguson, B., Hickman, F. & Lubick, D. (1989). Reexamining the Nature and Role of Tax Legislative History in Light of the Changing Realities of the Process, Taxes, 67, 804-823.

Fogg, K. (2013). Taxation with Representation: The Creation and Development of Low Income Taxpayer Clinics, The Tax Lawyer, 67, 3-66.

FSA 1998-215.d (1998). U.S.-Ireland Tax Treat Lacks ‘Mutual Agreement’ Article; Can’t Resolve Double Tax Cases, Tax Notes, 80, 1568.

Gattoni-Celli, L. & van den Berg, D. (2017, February, 6). Koskinen Considers Succession Planning as Calls for his Ouster Resume. Tax Notes, 154, 678.

Griswold v. Connecticut. (1965) 381 U.S. 479.

Hayner, P. (1956). Expressive Meaning. Journal of Philosophy, 53, 149-157.

Hickman, K. (2013). Unpacking the Force of Law. Vanderbilt Law Review, 66, 465-543.

Hoffer, S. & Walker, C. (2014). The Death of Tax Court Exceptionalism. Minnesota Law Review, 99, 221-296.

Hoffman, W. (2016, October, 10). Koskinen Impeachment Paused but not Forgotten as Elections Near. Tax Notes 153, 183-187

Hoffman, W. (2014). Koskinen and Olson Unveil Taxpayer Bill of Rights, Tax Notes, 143, 1219-1221.

Internal Revenue Service. (2014, June 10). IRS Adopts "Taxpayer Bill of Rights;" 10 Provisions to be Highlighted on IRS.gov, in Publication 1. Retrieved from https://www.irs.gov/newsroom/irs-adopts-taxpayer-bill-of-rights-10-provisions-to-be-highlighted-on-irsgov-in-publication-1. Accessed on September 30, 2017.

Kaplow L. & Shavell, S. (1994). Why the Legal System Is Less Efficient than the Income Tax in Redistributing Income, Journal of Legal Studies, 23, 667-681.

Marbury v. Madison. (1803) 5 U.S 137.

National Taxpayer Advocate. (2013). Most serious problems: Taxpayer Rights: The IRS Should Adopt a Taxpayer Bill of Rights as a Framework for Effective Tax Administration. 2013 Annual Report to Congress (Vol. 1, pp. 5-19).

National Taxpayer Advocate. (2016a). 2016 Annual Report to Congress.

National Taxpayer Advocate. (2016b). Taxpayer Rights Assessment. 2016 Annual Report to Congress (Vol. 1, pp. 42-47).

National Taxpayer Advocate. (2016c). Taxpayer Services in Other Countries. 2016 Annual Report to Congress (Vol. 3, pp. 2-15).

National Taxpayer Advocate. (2016d). Incorporating Taxpayer Rights into Tax Administration. 2016 Annual Report to Congress (Vol. 3, pp. 27-43).

Olson, N. (2015). Procedural Justice for All: A Taxpayer Rights Analysis of IRS Earned Income Credit Compliance Strategy, in Advances in Taxation 22, 1-35 (John Hasseldine ed.).

Patient Protection and Affordable Care Act: Preexisting Condition Exclusions, Lifetime and Annual Limits, Rescissions, and Patient Protections, 75 Fed. Reg. 37187 (June 28, 2010).

Prebble, J. (2002). Income Taxation: A Structure Built on Sand, Sydney Law Review, 24, 301-318.

Puckett, J. (2015). Structural Tax Exceptionalism. Georgia Law Review, 49 1067-1118.

Stack, L. (2017, April, 12). European Court Strikes Down Required Sterilization for Transgender People. New York Times. Retrieved from https://www.nytimes.com/2017/04/12/world/europe/european-court-strikes-down-required-sterilization-for-transgender-people.html?smprod=nytcore-iphone&smid=nytcore-iphone-share.

Sunstein, C. (1996). On the Expressive Function of Law. University of Pennsylvania Law Review, 144, 2021-2053 (p. 2024).

Taxpayer Advocate Service. (2017a). The Taxpayer Advocate Service is your voice at the IRS. Retrieved from https://taxpayeradvocate.irs.gov/. Accessed on September 30, 2017).

Taxpayer Advocate Service. (2017b). 3rd International Conference on Taxpayer Rights. Retrieved from https://taxpayerrightsconference.com/. Accessed on September 30, 2017).

Tyler, T. (2006). Why People Obey the Law (pp. 3-4). London & Oxford: Princeton University Press.

Wikipedia. (2017) IRS Targeting Controversy. Retrieved from https://en.wikipedia.org/wiki/IRS_targeting_controversy#cite_note-120controversy>.

Zelenak, L. (2014). Maybe Just a Little Bit Special, After All? Duke Law Journal, 63, 1897-1920.

Volume 4.2 of JOTA - Abreu and Greenstein Cover

Downloads

Published

29-11-2018

How to Cite

Abreu, A. G., & Greenstein, R. K. (2018). The U.S. Taxpayer Bill of Rights: Window Dressing or Expression of Justice?. Journal of Tax Administration, 4(2), 25–46. Retrieved from https://journals.docuracy.co.uk/jota/article/view/83