Friday, August 20, 2010
This Essay was written for a symposium entitled The Delicate Balance: Revenue Authority Discretions and the Rule of Law, to be held in Prato, Italy on September 23-24, 2010. The purpose of the symposium is to consider how different countries approach and think about delegations of decision-making authority to tax administrators, and the implications of such delegations. The purpose of the Essay is to address the U.S. experience with delegating administrative discretion to Treasury and the IRS. In the essay, I relate U.S. tax administration to administrative law doctrine and practice more generally. I link the courts’ willingness to accept congressional delegations as constitutionally permissible to the Administrative Procedure Act and the courts’ interpretation thereof. I identify three key ways in which U.S. tax administration deviates from general administrative law doctrine. Finally, I offer preliminary thoughts regarding the broader implications of those deviations.