1. Leslie Book Villanova University Charles Widger School of Law
Bringing Taxpayer Rights to the Table Temple Law Review Symposium: Taxpayer Rights in the United States
Leslie Book
Villanova University Charles Widger School of Law

2. TBOR
Section 7803(a)(3) EXECUTION OF DUTIES IN ACCORD WITH TAXPAYER RIGHTS
“In discharging his duties, the Commissioner shall ensure that employees of the Internal Revenue Service are familiar with and act in accord with taxpayer rights as afforded by other provisions of this title, including…”
Key questions include whether Section 7803(a)(3) is enforceable; how can taxpayers and practitioners practically use TBOR in audits, collection cases, and other cases (whistleblower cases, passport revocation cases etc).
My inquiry shifts the focus away from use of TBOR in specific disputes with respect to any one taxpayer and toward the role of TBOR in agency rulemaking

3. Shifting the Focus-TBOR Considerations Prior to IRS Guidance
Proposal
IRS/Treasury must address impact of proposed rules on fundamental taxpayer rights prior to finalizing regulations
Consider impact on some subregulatory guidance that is published in the Internal Revenue Bulletin
Inject taxpayer rights into agenda setting considerations: a rights based perspective should inform not only the substance of guidance but also what guidance is issued

4. Benefits
Operationalizes taxpayer rights in a way to ensure rights are considered before IRS sets in place rules
Presents a way around some of the challenges agencies have had in ensuring that unrepresented or voiceless taxpayers have had their interests protected
Assumption is that TBOR reflects general consensus of the values that IRS should respect in administering tax laws
Ties in to literature addressing the importance of voice in rulemaking. See e.g., Jessica Mantel, Procedural Safeguards for Agency Guidance: A Source of Legitimacy for the Administrative State, 61 Admin. L. Rev. 343 (2009)
Improves quality of guidance
Enhances agency accountability
Greater chance of public acceptance

5. Some of the Details: Require IRS to Solicit Input on Impact that Rule Has On Taxpayer Rights
Regs that are issued are subject to the Administrative Procedure Act (APA), the Paperwork Reduction Act (PRA), the Regulatory Flexibility Act (RFA), the Congressional Review Act (CRA); OIRA Review and IRC § 7805
My proposal is modeled on IRC § 7805(f), which requires Chief Counsel for Advocacy of the Small Business Administration (SBA) for comment regarding the impact the regulation may have on small businesses and for Treasury to consider and discuss any response to such comments in the preamble to the final regulations.

6. IRB Guidance?
The weekly IRB is described as the “authoritative instrument” for publishing official IRS rulings and procedures and tax regulations
Revenue Rulings, Revenue Procedures, Notices and Announcements
Guidance published in the IRB goes through a multi-step clearance process at both Treasury and IRS, involving review and approval by officials in a wide variety of Treasury and IRS offices.
Require input and consideration on proposed IRB guidance impact on taxpayer rights
Seems most apt for revenue procedures, which are an official statement of a procedure that affects the rights or duties of taxpayers or other members of the public under the statute, regulations, or tax treaties.
Revenue procedures have significant impact on taxpayer rights (equitable relief from joint and several liability, process for determining financial disability under Section 6511(h); annual filing season program for unlicensed tax return preparers)

7. Open Questions What guidance should be brought within this framework?
How about items not published in IRB (forms, FAQs, online resources, IRM)?
Are some rights better situated than others to be discussed in this way?
Are some rights so abstract that the discussion may not be meaningful?
Should TAS be the institutional actor charged with identifying rights and forcing IRS to respond to those concerns?
Does current statute encompass power for TAS or is legislation needed?
What consequence if guidance fails to address TBOR concerns?
Could a court find that the agency action is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law” as per 5 USC § 706(2)(A)
Should proposal be directed at Congress? What about TBOR considerations for Congress when considering or enacting legislation?

8. Connections to Other Literature
Agency guidance and impact on poor and traditionally marginalized communities. See Arthur Bonfield, Representation for the Poor in Federal Rulemaking, 67 Mich. L. Rev. 511 (1969) 
Growing role that ombudsman offices play internationally in ensuring rights are protected. See Research Handbook on the Ombudsman (forthcoming, 2018) (edited by Marc Hertogh & Richard Kirkham)
Research on ways to enhance engagement in rulemaking. See Administrative Conference of the United States Project on Public Engagement in Rulemaking (Consultants Glen Staszewski & Michael Sant’Ambrogio)