Did You Know There is a Taxpayer Bill of Rights?

It is now old news: in July, 2014 the IRS adopted a Taxpayer Bill of Rights (“TBOR”) and in December, 2015 Congress actually inserted it into the Internal Revenue Code, where it has remained. Nevertheless, neither taxpayers nor practitioners have paid much attention to it, and that’s too bad.  It’s also what we are trying to change. The TBOR has the potential to transform tax administration, but for that to happen taxpayers and their advisors need to know about it and need to know how to use it.

In March, 2017 we presented what is now a paper titled The U.S. Taxpayer Bill of Rights: Window Dressing or Expression of Justice, at the 2nd International Taxpayer Rights Conference convened by the U.S. National Taxpayer Advocate and held in Vienna, Austria. The paper will be published by JOTA, the Journal of Tax Administration but is now available from SSRN, here. In the paper we attempted to answer a fundamental question:  What does the concept of taxpayer rights offer?

At first blush the TBOR may seem to be no more than window dressing because it does not codify legal remedies for violations of the enumerated taxpayer rights. Nevertheless, we argue that by its explicit use of the language of rights and by its adoption by the IRS and enactment by Congress, the TBOR generates a powerful normative force that supports enforcement. That force, in turn, can change the behavior of the IRS toward taxpayers and support calls for Congress, Treasury, or the courts to fashion legal remedies. Put differently, there is strong reason to predict that the adoption and enactment of the TBOR will make the administration of the tax law more just.

Notably, recent events are confirming our prediction:  On November 8, 2017 Facebook filed a complaint seeking “injunctive and mandamus-like” relief to compel the IRS to allow it to have access to the Appeals process within the agency, and cited the TBOR’s “right to appeal a decision of the Internal Revenue Service in an independent forum,” IRC § 7803(a)(3)(E), as support for its claim.  We hope that our work, now aided by the notoriety that is certain to attend the Facebook litigation, will bring the TBOR into the mainstream and provide a roadmap for taxpayers and their advisors to follow in asserting the rights it offers.

Our format in the JOTA piece is a bit unconventional, as it is a dialogue in which we ask and answer challenging questions. We believe this format clarifies the fundamental issues raised by the concept of taxpayer rights and best illuminates some of the tensions generated.  We have followed that piece with another, expanded and more conventional treatment of the subject, which is scheduled for publication in Tax Notes on November 27, 2017 and will be available on SSRN a month later. Stay tuned for further developments.

Professor Alice G. Abreu specializes in federal income tax law, with a special emphasis in the formulation of tax policy. Before joining Temple Law School, she clerked for Judge Edward N. Cahn in the Eastern District of Pennsylvania and practiced tax law with Dechert LLP in Philadelphia.

Professor Richard Greenstein teaches in the fields of criminal law, jurisprudence, federal court jurisdiction, conflict of laws, and ethics. Following law school, Professor Greenstein was both managing and staff attorney at the Atlanta Legal Aid Society in Atlanta, Georgia.  He taught at Georgia State University’s College of Law from 1982 to 1985, when he joined the Temple faculty.

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