Tax: Different, not Exceptional
Administrative Law Review Vol. 71 (2019) (Forthcoming)
54 Pages Posted: 30 May 2019 Last revised: 13 Jun 2019
Date Written: 2019
Tax is different from other fields of law, just as any field of law is different from others. But tax scholarship, judicial opinions in tax litigation, and public attitudes toward taxation have long claimed more than difference in doctrinal details. They have claimed that tax is different in kind from other fields of law— that it is unique, that it is exceptional.
Even though the Supreme Court seemed to kill tax exceptionalism in its 2011 decision in Mayo Foundation for Medical Education & Research v. United States, claims of tax exceptionalism have hardly abated. In this article we take on the concept of tax exceptionalism directly. We begin by accepting that scholars, judges, and taxpayers experience tax as different from other fields of law, but we then tackle the question whether these differences add up to tax exceptionalism. Our view is that they do not, and we believe that pragmatism provides a useful framework for identifying just what is mistaken about claims of tax exceptionalism.
From a pragmatist perspective, the question is whether it is useful to believe that the accumulation of the various differences between tax and other fields of law makes tax fundamentally different from the others. We conclude and demonstrate that it is not useful to characterize tax as exceptional; questions about the differences between tax and other fields of law can be fully answered by focusing on a specific issue and then deciding whether there is something about tax that requires that particular issue to be treated differently in tax. That is precisely what the Supreme Court did in Mayo. Rather than treat tax as different in kind from other fields of law, the Mayo Court treated the tax issue before it as it would any other issue in any other field, thereby rejecting the vary premise of tax exceptionalism.
In prior work we have claimed that tax exceptionalism has had the insidious effect of stunting the growth of a robust tax jurisprudence by insulating tax from other fields of law, disparaging the lessons that tax can learn from careful attention to those other fields, undermining the legitimacy of tax administration, and perhaps even contributing to the relative lack of diversity in the tax bar. But here our focus is different. In light of the persistence of the concept of tax exceptionalism, which we believe is fueled by the salience of the differences between tax and other fields of law, we tackle the effect of those differences directly. We do not minimize them or deny their existence; rather, we show that despite their existence and their number they should not lead to the conclusion that tax is exceptional because the concept of tax exceptionalism is analytically empty. It is useless.
Keywords: tax, IRS, legitimacy, enforcement discretion, interpretive authority, interpretation, exceptionalism, exceptional, visceral, objective, rules, standards, taxpayers, administrators, prosecutorial discretion, agency, administration, analytical tools
JEL Classification: K23, K34, K42
Suggested Citation: Suggested Citation