Joshua D. Blank (UC-Irvine; Google Scholar) & Leigh Osofsky (North Carolina; Google Scholar), Democratic Accountability and Tax Enforcement, 61 Harv. J. on Legis. __ ( 2024):
One of the most powerful charges that can be leveled against the IRS is that it is targeting taxpayers. Charges of political targeting have dogged the IRS for over a century, including in major controversies such as the so-called Tea Party auditing scandal in 2013. Commentators and scholars have long-critiqued the IRS for focusing audit resources on some of the lowest-income Americans. And, most recently, a group of researchers estimated that the IRS audits Black taxpayers at a 2.9 to 4.7 times greater rate, as compared to non-Black taxpayers.
In response, legislators demanded action, there was widespread public consternation, and IRS officials stated that they were “deeply concerned by these findings.” These, and other, controversies suggest deep disdain for the targeting of taxpayers by the IRS, as well as general confusion about what it even means for the IRS to “target” taxpayers.
Despite the fact that “targeting” is a powerful accusation often leveled at the IRS, it turns out that it is very difficult to say what “targeting” means. This question is made more difficult by the fact that the IRS always must focus its resources on some taxpayers, but not others. Moreover, how best to focus tax enforcement resources is not a question that has a clear, technocratic answer. Rather, it depends on normative questions, such as how much we should prioritize taxpayers who face greater vulnerabilities. And the law provides little help in deciding when tax enforcement choices are out of bounds, as antidiscrimination law plays no real, practical role in curbing the IRS’s tax enforcement decisions.
This Article identifies how these factors lead to a democratic accountability problem at the heart of tax enforcement. Which taxpayers to pursue is a deeply value-laden question, and the IRS is left to answer it, with few legal guidelines, little ex ante oversight by the accountable branches of government, and little transparent dialogue with the public. This state of affairs inevitably leads to targeting controversies, which harm both the IRS and the public. Having identified this central problem, this Article begins to chart a path toward more democratically accountable tax enforcement. Dialogue with the public about difficult, normative tax enforcement decisions can, and should, be consistent with a successful enforcement regime.