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Publication Date

2015

Abstract

Following the Supreme Court's landmark decision in Mayo Foundation for Medical Education and Research v. United States, many scholars of tax law have declared that Mayo marks the death of tax exceptionalism. The tax exceptionalist view holds that because tax is different or special, generally applicable administrative law procedural rules and doctrines do not apply in the tax context. In Mayo, however, the Supreme Court held that generally applicable administrative law rules and doctrines do apply to the Treasury Department and the IRS. Contrary to the prevailing narrative that proclaims the death of tax exceptionalism, this Article posits that the reports of the death of tax exceptionalism are significantly exaggerated. Although it is certainly true that the Mayo Court rejected a tax-specific approach to administrative review, important aspects of tax procedure depart significantly from the standard template that Congress usually deploys to govern administrative action. For example, the Internal Revenue Code provides special rules for tax rulemaking as well as adjudication of tax controversies. The existing literature generally has examined these departures from the Administrative Procedure Act's template largely in isolation from one another. This Article, in contrast, explores such tax-exceptional features as an interlocking whole and posits that the unique structural features of tax administration revive tax exceptionalism as a practical matter. Moreover, these departures arguably serve important policy goals. The Code's relatively flexible approach to rulemaking, including a grant of retroactive rulemaking authority, helps the Treasury Department and the IRS provide taxpayers with the guidance that they need, prevent abuse, and treat similarly situated taxpayers equally; while the Code's relatively ungenerous approach toward IRS fact finding affords taxpayers greater opportunity for individualized justice in court that reinforces taxpayer morale. In sum, though tax exceptionalism may technically be dead, the reality is much more complicated, and the tradeoffs of structural tax exceptionalism should not lightly be rejected.

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