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
88 Pages Posted: 12 Sep 2009 Last revised: 29 Mar 2010
Date Written: March 6, 2010
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.
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