An IRS Duty of Consistency: The Failure of Common Law Making and a Proposed Legislative Solution

Tennessee Law Review, Vol. 77, No. 3, Spring 2010

UNLV William S. Boyd School of Law Legal Studies Research Paper No. 10-07

88 Pages Posted: 12 Sep 2009 Last revised: 29 Mar 2010

See all articles by Steve R. Johnson

Steve R. Johnson

Florida State University - College of Law

Date Written: March 6, 2010

Abstract

The IRS should endeavor to treat similarly situated taxpayers similarly. But does this aspiration rise to the level of a judicially enforceable duty? If the IRS takes a position as to Taxpayer B which is correct under the law but is inconsistent with a position the IRS took as to similarly situated Taxpayer A, should the IRS lose as to Taxpayer B simply because of the inconsistency? These questions implicate important themes, such as fairness, the rule of law, separation of powers, administrative exigencies, the role of common law making in a highly positivistic system, and the sustainability of legal regimes.

Suggested Citation

Johnson, Steve R., An IRS Duty of Consistency: The Failure of Common Law Making and a Proposed Legislative Solution (March 6, 2010). Tennessee Law Review, Vol. 77, No. 3, Spring 2010; UNLV William S. Boyd School of Law Legal Studies Research Paper No. 10-07. Available at SSRN: https://ssrn.com/abstract=1471641

Steve R. Johnson (Contact Author)

Florida State University - College of Law ( email )

425 W. Jefferson Street
Room R210
Tallahassee, FL 32306
United States
850-644-1777 (Phone)

HOME PAGE: http://www.law.fsu.edu/faculty/sjohnson.html

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