Tuesday, November 2, 2021
Alice Abreu (Temple) & Richard Greenstein (Temple; Google Scholar) present Beyond Binary: The Normative Perfect Should Not Be The Enemy Of The Demonstrably Good today at Georgetown as part of its Tax Law and Public Finance Workshop hosted by Brian Galle:
Our normative claim in this Essay is straightforward: Not only should it not be “hornbook law that informal publications all the way up to revenue rulings are simply guides to taxpayers, and a taxpayer relies on them at his peril,” it should not be the law at all. If the IRS interprets the tax law, in writing, in a document intended to provide guidance to taxpayers or in a document addressed to a specific taxpayer, not only should the taxpayer be entitled to rely on what the IRS has said, but a court ought not dismiss it out of hand as having no bearing on its decision in the case. What is at stake is the legitimacy of an agency that needs legitimacy to promote taxpayer compliance.
The subject of taxpayer reliance on statements the IRS makes in writing, in documents intended to provide taxpayer guidance (Publications, Instructions to Forms, Frequently Asked Questions posted on its website, and correspondence sent directly to a taxpayer herein after referred to as “IRS informal written guidance”) has received a fair amount of attention from scholars and commentators in the last few years. Professors Emily Cauble and Stephanie McMahon have written important analyses of the problem, as has Jack Cummings, an experienced practitioner with both IRS and private sector experience. More recently, Professors Josh Blank and Leigh Osofsky have “reframed the problem as a social justice issue.” Both the enactment of the TCJA and the legislation necessitated by the pandemic put significant pressure on the IRS to issue guidance quickly, and the IRS has done so by posting informal guidance on its website, exacerbating a long-festering problem. The introduction of lengthy and significant tax legislation in the House by the Biden administration, which might well become law within the next twelve months, suggests that the pressure on the IRS will not abate anytime soon.