Giving Taxpayer Rights a Seat at the Table

How can Congress’s codification of the Taxpayer Bill of Rights (TBOR) make a meaningful difference in tax administration? This question will likely confront academics, policymakers, and judges in the coming years. In late 2015, Congress codified the rights that the Internal Revenue Service (IRS) administratively adopted in 2014, explicitly requiring that the Commissioner ensure that IRS employees receive training and act in accord with the codified rights. A recent article by Professors Alice Abreu and Richard Greenstein refers to the codification of TBOR as having the power to “transform the tax practice and the relationship between taxpayers and the IRS.” Yet the statute itself is silent on the practical effect of IRS violations of any of the rights and fails to include a specific remedy or enforcement mechanism when the IRS acts inconsistently with or violates those rights. In Facebook v. IRS, a federal district court concluded that at least with respect to one of the enumerated taxpayer rights (the right to appeal a decision in an independent forum), the right is not enforceable by taxpayers. This development highlights a central weakness in the current law, namely that there is no formal way to ensure that IRS employees act consistently with or even consider taxpayer rights. In this Essay, I propose a way to change this shortcoming. I argue that advocates, academics, and practitioners should focus on rulemaking as a way to operationalize taxpayer rights. Congress should explicitly require the IRS to consider the impact of guidance on taxpayer rights prior to promulgating regulations and other guidance. In so doing, Congress should rely on and expand the role of the IRS office that is deeply associated with the increased importance of taxpayer rights, the Taxpayer Advocate Service (TAS).