The Promise and the Reality of U.S. Tax Administration

THE DELICATE BALANCE: TAX DISCRETIONS AND THE RULE OF LAW, Chris Evans, Judith Freedman, & Richard Krever eds., 2011

Minnesota Legal Studies Research Paper No. 10-60

26 Pages Posted: 13 Aug 2010 Last revised: 24 Mar 2012

Kristin E. Hickman

University of Minnesota - Twin Cities - School of Law

Date Written: August 11, 2010

Abstract

This Essay was written for a symposium entitled The Delicate Balance: Revenue Authority Discretions and the Rule of Law, held in Prato, Italy on September 23-24, 2010. The purpose of the symposium was to consider how different countries approach and think about delegations of decision-making authority to tax administrators, and the implications of such delegations. The Essay addresses the U.S. experience with delegating administrative discretion to Treasury and the IRS. In the Essay, I relate U.S. tax administration to administrative law doctrine and practice more generally. I link the courts’ willingness to accept congressional delegations as constitutionally permissible to the Administrative Procedure Act and the courts’ interpretation thereof. I identify three key ways in which U.S. tax administration deviates from general administrative law doctrine. Finally, I offer preliminary thoughts regarding the broader implications of those deviations. Essays from the symposium were published as a collection by IBFD in THE DELICATE BALANCE: TAX DISCRETIONS AND THE RULE OF LAW (Chris Evans, Judith Freedman, & Richard Krever eds., 2011).

Keywords: delegation, tax, administrative law, rulemaking, Administrative Procedure Act, Treasury regulations, guidance documents

JEL Classification: K19, K2, K20, K29, K34, K30, K40

Suggested Citation

Hickman, Kristin E., The Promise and the Reality of U.S. Tax Administration (August 11, 2010). THE DELICATE BALANCE: TAX DISCRETIONS AND THE RULE OF LAW, Chris Evans, Judith Freedman, & Richard Krever eds., 2011; Minnesota Legal Studies Research Paper No. 10-60. Available at SSRN: https://ssrn.com/abstract=1657060 or http://dx.doi.org/10.2139/ssrn.1657060

Kristin E. Hickman (Contact Author)

University of Minnesota - Twin Cities - School of Law ( email )

229 19th Avenue South
Minneapolis, MN 55455
United States
612-624-2915 (Phone)

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