Blank, Osofsky & Zelenak On Tax Simplexity

Joshua D. Blank (NYU) & Leigh Osofsky (Miami), Simplexity: Plain Language and the Tax Law, 66 Emory L.J. 189 (2017):

In recent years, federal government agencies have increasingly attempted to use plain language in written communications with the public. The Plain Writing Act of 2010, for instance, requires agencies to incorporate “clear and simple” explanations of rules and regulations into their official publications. In the tax context, as part of its “customer service” mission, the Internal Revenue Service bears a “duty to explain” the tax law to hundreds of millions of taxpayers who file tax returns each year. Proponents of the plain language movement have heralded this form of communication as leading to simplicity in tax compliance, more equitable access to federal programs, and increased open government.

This Article casts plain language efforts in a different light. As we argue, rather than achieving simplicity, which would involve reform of the underlying law, the use of plain language to describe complex legal rules and regulations often yields “simplexity.”

As we define it, simplexity occurs when the government presents clear and simple explanations of the law without highlighting its underlying complexity or reducing this complexity through formal legal changes. We show that in its numerous taxpayer publications, the IRS frequently uses plain language to transform complex, often ambiguous tax law into seemingly simple statements that: (1) present contested tax law as clear tax rules, (2) add administrative gloss to the tax law, and (3) fail to fully explain the tax law, including possible exceptions. Sometimes these plain language explanations benefit the government; at other times, they benefit taxpayers.

Having introduced the concept of simplexity to the legal literature, we show how the IRS’s use of simplexity poses a trade-off between representing the tax law accurately and making it understandable to the public. We offer approaches for preserving some of the benefits of simplexity while also responding to some of its drawbacks. We also forecast the likely emergence of simplexity in potential future tax compliance measures, such as government-prepared tax returns, interactive tax return filing, and increased third-party reporting.

Lawrence Zelenak (Duke), The Uses and Abuses of Simplexity, 66 Emory L.J. Online 2011 (2017):

Although the importance of IRS publications in the administration of the federal income tax can hardly be overstated, before Joshua D. Blank’s and Leigh Osofsky’s comprehensive study of simplexity in IRS publications scholars had given those publications almost no attention. In their article, Blank and Osofksy make two important contributions to the scholarly literature on tax administration. The first (and more specific) contribution is the analysis of simplexity in IRS publications—their diagnosis of the problem of simplexity and their explanation of how it can be managed (not cured). The second (and more general) contribution is their opening up of the unexplored field of IRS publications to scholarly examination.

I agree with all their major conclusions—including, most significantly, that some simplexity is inevitable in carrying out the IRS’s duty of explaining immensely complex tax laws to a general readership. I also agree that the primary response to that inevitability should be extensive “red-flagging” of publications to alert readers to particular instances of simplexity and to refer them to the regulations, rulings, and judicial opinions which the publications have simplexified. Given their focus on the virtues of plain writing, I should add that Blank’s and Osofsky’s article is a model of clarity and grace of expression, and a pleasure to read.

The remainder of this brief essay is devoted to a few points on which I disagree with the analysis of Blank and Osofksy (none of which affect my agreement with their major conclusions), and to a few thoughts—inspired by reading Blank and Osofksy—on a few non-simplexity aspects of IRS publications.