The U.S. Taxpayer Bill of Rights: Window Dressing or Expression of Justice?
Genre
Journal articleDate
2018Author
Abreu, Alice G.Greenstein, Richard K.
Subject
TaxTaxpayer rights
Bill of Rights
Taxpayer Bill of Rights
TBOR
Olson, Nina
Performative
Expressive function
Normative basis for enforcement
Rights
Permanent link to this record
http://hdl.handle.net/20.500.12613/6686
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Show full item recordDOI
http://dx.doi.org/10.34944/dspace/6668Abstract
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.Citation
Alice G. Abreu & Richard K. Greenstein, The U.S. Taxpayer Bill of Rights: Window Dressing or Expression of Justice?, 4 JOTA 25 (2018).Available at: http://jota.website/index.php/JoTA/article/view/196
Citation to related work
Journal of Tax Administration (JOTA)Has part
Journal of Tax Administration (JOTA), Vol. 4, No. 2 (2018)ADA compliance
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Embracing the TBORAbreu, Alice G.; Greenstein, Richard K. (2017-11-27)When Congress codified the Taxpayer Bill of Rights (the “TBOR”) in 2015 the tax bar largely shrugged, but that is a mistake. Section 7803(a)(3) is not just another iteration of the phrase Congress used to christen legislation designed to reign in perceived IRS abuses in the 80’s and 90’s, when Congress enacted three different pieces of legislation that bore the name “Taxpayer Bill of Rights.” Despite their lofty titles, none of those enactments contained a single amendment to the Internal Revenue Code that used the word “right,” or employed the language of rights. By contrast, section 7803(a)(3) actually refers to “taxpayer rights” and lists ten items. Therefore, despite the claims of its promoters that the 2015 legislation simply restates rights already provided by the Code, the codification of the TBOR has the power to transform the tax practice and the relationship between taxpayers and the IRS. In this Article we explain why. Specifically, we make three arguments. First, construing the 2015 codification of the TBOR as a meaningless gesture ignores the well-established canon of statutory construction against surplusage, as well as its important corollary: when Congress amends a statute it intends to change something. Second, the TBOR significantly enhances taxpayers’ normative basis for demanding legal remedies for violations of their rights because it invokes procedural justice, using the language of rights where only government duties existed before. Third, the TBOR may have actually created taxpayer rights. We do not argue that all taxpayer rights should be enforced either all the time or to the same extent, as that could be disruptive or even catastrophic for tax administration and may not be necessary to allow the TBOR to achieve its goals. But we do maintain that the codification of the TBOR can transform the legal environment so that demands for enforcement can be weighed by the courts on a case by case basis, in light of all the facts and circumstances, which include the identity and attributes of the taxpayer. Recent events confirm the importance of the TBOR and suggest that the tide of taxpayer indifference has begun to turn. On November 8, 2017, Facebook filed a complaint against the IRS, citing the TBOR’s “right to appeal a decision of the Internal Revenue Service in an independent forum,” section 7803(a)(3)(E)), as the basis for its request that the court “[i]ssue an injunction or mandamus-like relief ordering Defendants to provide Facebook access to IRS Appeals.” We believe that Facebook is just the first of many taxpayers who will formally embrace the TBOR as a source of rights and as the basis for crafting remedies to enforce those rights.
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Listen to Peter: Embrace the TBORsAbreu, Alice G.; Greenstein, Richard K. (2018-01-29)A TBOR is a Taxpayer Bill of Rights and 43 states, and the federal government all have one. Unfortunately, most practitioners either don’t know that TBORs exist, or, if they do, they think TBORs are of little, if any, practical importance—toothless tonics designed to make taxpayers feel better about the unpleasantness of paying taxes but offering no enforceable rights. Nevertheless, as no less an authority than Peter Faber urged in an “In the Trenches” article published in State Tax Notes on September 4, 2017, for tax advisors to ignore the “more general taxpayer protection rules of the sort that are embodied in bill of rights legislation . . . [is] a mistake. There are times when these rules may be helpful in controversy situations.” We think that not only is Peter correct, but that TBORs can do even more. TBORs can transform both tax practice and the relationship between taxpayers and taxing authorities, and their provisions can be enforced by courts even in the absence of legislative language providing for such enforcement. There are at least three arguments in support of that proposition, and we developed them in a Special Report we wrote on the Federal TBOR, and recently published in Tax Notes: Embracing the TBOR. We think each of those arguments could also be made with respect to state TBORs. As we explain in that Article, the first argument is that construing the codification of the TBOR as a meaningless gesture ignores the well-established canon of statutory construction against surplusage. The second is that the TBOR significantly enhances the taxpayer’s normative basis for demanding legal remedies for violations of taxpayer rights because it invokes procedural justice, using the language of rights where only government duties existed before. And the third is that the TBOR may have actually created taxpayer rights. Our Article on the Federal TBOR does not argue that all taxpayer rights should be enforced either all the time or to the same extent, as that could be disruptive or even catastrophic for tax administration and may not be necessary to fulfill the objectives of the TBOR. But it does maintain that the adoption and particularly the codification of the TBOR can transform the legal environment so that demands for enforcement can be weighed by the courts on a case by case basis, in light of all the facts and circumstances, which include the identity and attributes of the taxpayer. Language in many of the state TBORs to the effect that failure to comply with the provisions of the TBOR will not invalidate particular government actions should not preclude redress that takes other forms.