THE NETHERLANDS · MAY 3-4, 2018

The U.S. Taxpayer Bill of Rights: Window Dressing or Harbinger of Legitimacy? (Abstract)

Professors Alice G. Abreu & Richard K. Greenstein; Temple University School of Law; Philadelphia, Pennsylvania, United States

In December, 2015 Congress appeared to enact a Taxpayer Bill of Rights (TBOR) when it amended the Internal Revenue Code by adding to it every provision contained in the TBOR that the Internal Revenue Service (IRS) itself had adopted in 2014. (IR 2014-72 (June 10, 2014)). By their terms both TBORs group “the multiple existing rights embedded in the tax code . . .  into 10 broad categories.”  Although the compilation and listing makes the rights “more visible and easier for taxpayers to find,” neither TBOR appears to give taxpayers a means to enforce those rights against the IRS or to provide compensation for their violation. The absence of any additional taxpayer right of action raises an important question: Does a TBOR, as so operationalized, mean anything?  We believe that the answer is yes.

Independent of its enforceability, the TBOR makes a critically important contribution to the legitimacy of the federal income tax system. Currently, the system’s legitimacy is fragile, and we believe that condition stems from at least two interrelated causes. First, justice is crucially important for the legitimacy of a legal regime, and we believe that the tax system is not, in the public’s mind, readily associated with principles of justice. Second, as we have argued in our previous scholarship, the repeated claim that tax is exceptional has not only separated tax from the legitimacy shared by law generally, but has rendered obscure, mysterious, and even illegitimate, decisions by tax administrators that would be readily explainable and justifiable if seen through the lens of ordinary principles of administrative law. The TBOR promises to lower these barriers to legitimacy by making explicit the principles of justice intrinsic to the federal income tax system and by revealing a dimension of justice shared by multiple fields of law, thereby undermining the pernicious claim of tax exceptionalism.

These conclusions follow from our analysis of the expressive quality of legal rights. Insofar as legal rights are enforceable, an important source of their significance lies in their constraining effect on the behavior of the individuals and government entities against whom the rights are asserted.  But independent of enforceability, legal rights also have an expressive quality. Some, like the TBOR, express particular demands of justice with respect to how members of the community are treated by the government, thus giving legal rights a crucial normative effect even when not enforced. In the particular case of the TBOR, whether or not the enumerated rights are enforced, this expressive quality makes patent the requirements of justice in the relationship between the taxpayer and the state.  Consequently, the incorporation of the TBOR into the Code makes the Code, to that extent, just, and further serves as a robust normative basis for demanding enforcement.

Finally, the rights proffered by the TBOR extend to entities and individuals who might not normally enjoy rights under the Constitutional BOR. And that underscores the connection between the duty that attends the attainment of the status of taxpayer, and the just treatment by the government which attainment of that status demands. It is the powerful expressive quality of the TBOR—expressing demands of justice—which makes it more than window dressing and holds out the promise of buttressing the tax system’s legitimacy.