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Thursday, April 27, 2023
Choi Evaluations Admin Regulation And The Disaster Of Tax Administration By Galle & Shay
Jonathan Choi (Minnesota; Google Scholar), The Case For a Tilt Towards Income in Tax Administration (reviewing Brian Galle (Georgetown; Google Scholar) & Stephen Shay (Boston School; Google Scholar), Admin Regulation and the Disaster of Tax Administration, 101 N.C. L. Rev. __ (2023) (reviewed by Blaine Saito (Northeastern; Google Scholar) right here):
Tax rules and subregulatory steering abound with obvious giveaways to taxpayers, favorable interpretations with little or no statutory justification. Examples embody the check-the-box guidelines, the waiver of 382(l)(5) internet function loss carryforward limitations throughout the monetary disaster, and plenty of extra. Then again, it’s arduous to think about instances the place Treasury or the IRS has deviated from the statute at taxpayers’ expense. The everyday clarification for this asymmetry is standing doctrine: if my tax invoice is just too excessive due to an company rule, I can sue the federal government, but when it’s too low, no person can sue to lift it. Now, a terrific new article by Brian Galle and Stephen Shay considers the implications of this “tilt in opposition to income” for administrative legislation.
Galle and Shay deliver a recent perspective to the traditional debate on administrative tax exceptionalism. They recommend that the lean in opposition to income cuts in opposition to the formalist, anti-exceptionalist place (most famously promoted by Kristin Hickman) that tax rules ought to comply with the identical procedural guidelines that apply to all different rules. As an alternative, they recommend that courts ought to counter-act the lean in opposition to income by making use of administrative legislation necessities extra leniently to Treasury and the IRS. …
One of many article’s finest options is that it deftly navigates the troublesome line between normative and constructive arguments. Many tax students could discover Galle and Shay’s arguments persuasive as a normative matter however have lingering doubts as a matter of constructive legislation. Contemplate the essential case in opposition to exceptionalist tax administration: the Administrative Process Act purports to use to all companies equally, and nothing within the statute justifies particular remedy for the IRS. However as Galle and Shay argue, courts should make normative coverage judgments on a regular basis in powerful instances, and their normative judgments are the idea of a lot of the frequent legislation surrounding the APA. Thus normative judgments are unavoidable, and even perhaps fascinating, even when one takes a positivist view of statutory administrative legislation.
Whether or not you agree or disagree, Galle and Shay’s new article makes a worthwhile contribution to the literature on tax administration and is properly price a learn.
https://taxprof.typepad.com/taxprof_blog/2023/04/choi-reviews-admin-law-and-the-crisis-of-tax-administration-by-galle-shay.html
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