Thursday, February 16, 2023
Brian Galle (Georgetown; Google Scholar)& Stephen Shay (Boston College; Google Scholar) present Admin Law and the Crisis of Tax Administration, 101 N.C. L. Rev. __ (2023) (reviewed by Blaine Saito (Northeastern; Google Scholar) here) at Duke today as part of its Tax Policy Seminar hosted by Lawrence Zelenak:
The IRS is struggling. Phone calls from confused taxpayers ring unanswered, paper returns pile up, aggressive tax filers are confident they are unlikely to be audited. Congress piles new responsibilities on the agency while (so far) slashing its budget to modern lows.
This is a strange time, then, to launch perhaps the largest-ever experiment in tax administration. Yet that is what some courts and the Trump White House, encouraged by some tax law scholarship, have begun. In at least four distinct ways, IRS and its regulatory partner the U.S. Treasury are now facing greater procedural obstacles to their efforts to guide and constrain the taxpaying public.
Recent judicial decisions would suggest the IRS must reissue existing administrative guidance, going back for an uncertain period but at least six years, using costly and time-consuming "notice and comment" procedures. A 2021 Supreme Court decision narrowly applied the 100-year old Anti-Injunction Act to allow litigants for the first time to challenge IRS anti-tax shelter guidance on a pre-enforcement basis in court. And in 2018 the White House and Treasury agreed that many more tax rules would be subject to Office of Management and Budget cost-benefit analysis review.
Supporters of these changes argue that they simply are bringing tax administration more in line with the admin law governing other agencies, but these claims overlook key ways in which tax administration differs from other rulemaking. As other scholars have observed, tax administration must thread the impossible needle of communicating rules that touch every aspect of modern life to an audience of hundreds of millions of individual taxpayers, some of whom do not even speak English, let alone have the capacity to parse legislative text.
Our contribution is to identify and explore the implications of another key difference: the systematic "tilt" of administrative law against revenue. IRS and Treasury effectively cannot be challenged in court for an action or decision that favors taxpayers, causing the government to lose money. the agencies' decisions to eschew enforcement against particular taxpayers are invisible to the public. These simple facts have profound implications, particularly when combined with the increasing obstacles to the agencies' action we have just mentioned. As action becomes more costly and more time-consuming, the option to do nothing becomes ever more appealing. We review literature suggesting the power this asymmetric effect has had on tax rulemaking. We then examine how the tilt should affect the way that administrative law is applied to tax rulemaking.