The Dangers of Symbolic Legislation: Perceptions and Realities of the New Burden-of-Proof Rules

Abstract:     
One provision of the 1998 IRS Restructuring and Reform Act is new I.R.C. sec. 7491. That section purports to alter the long established rule that the burden of proof in civil tax litigation generally is on the taxpayer. It was enacted with considerable fanfare as a taxpayer-protection measure. However, to minimize the serious effects that a genuine and general burden reversal would occasion, sec. 7491 contains many exceptions and limitations. I argue that these conditions largely swallow the rule, such that the burden of proof will shift in very few actual cases. But ineffective does not mean innocuous. Section 7491 will compound uncertainties in the process of resolving tax controversies, leading to increased litigation and increased costs. Also, by overselling sec. 7491, Congress' actions will exacerbate cynicism and public distrust. Thus, sec. 7491 is a harmful exercise in symbolic legislation.

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