I am deeply honored to be the 2023 recipient of the Mary C. Lawton Award for Outstanding Government Service. It is especially meaningful because I never expected to enter government service. My chosen path was as an attorney representing low-income taxpayers before the Internal Revenue Service (IRS) in the low-income taxpayer clinic I founded in 1992. I did not study administrative law in law school, and the topic did not seem particularly relevant given the IRS maintained for decades that the Administrative Procedure Act (APA) did not apply to it—a position known as “tax exceptionalism.” So, it was a surprise to me in 2000, when the position of National Taxpayer Advocate (NTA) opened, that I was approached to put my name into consideration. It was even more of a surprise (a shock, even) to find myself several months later appointed to that position by the Secretary of the Treasury.
The position of the NTA is sui generis. There is no other position quite like it in the entire U.S. government—an executive branch officer appointed by a member of the Cabinet, serving without a term and reporting to an agency head whom the NTA is statutorily authorized to order to take or cease actions, all the while reporting to Congress directly about the problems the agency is experiencing or creating. Seriously, that is the job description—see 26 U.S.C. §§ 7803(c) and 7811.
Early on, I realized that I needed to learn about administrative law if I was going to fulfil my statutory duty of helping taxpayers resolve their problems with the IRS and making administrative and legislative recommendations to mitigate those problems. In an agency that prided itself on its law enforcement mission and its key function of collecting 98 percent of federal revenue, I was going to need all the tools available to me to encourage the IRS to make systemic change. I needed to frame recommendations in the context of best practices of federal agencies and the law underlying those practices. Thus began my long tutelage under the American Bar Association’s Administrative Law Section and the Administrative Conference of the United States.
I saw firsthand how administrative law underpins the way the government treats the governed—in my case, taxpayers. Notwithstanding my many years representing taxpayers before the IRS and advocating for taxpayers’ rights in the context of agency action, as NTA I found that administrative law provided me with a new way of framing arguments.
Let me share just a few examples of this from my tenure as the NTA. Early on, I secured the assistance of Jeffrey Lubbers and Charles Pou to advise me on developing guidance to implement the confidential communications requirement between taxpayers and my office. 26 U.S.C. § 7803(c)(4)(A)(iv) grants local taxpayer advocates the “discretion, not disclose to the Internal Revenue Service contact with, or information provided by, such taxpayer.”
Relying on the classification of the Office of the Taxpayer Advocate as an advocate-ombuds under the ABA’s Standards for Establishment and Operation of Ombuds Offices, we were able to incorporate into our procedures the Department of Justice’s guidance on Confidentiality in Federal Alternative Dispute Resolution Programs. 65 Fed. Reg. 83,085 (Dec. 29, 2000). This was a very controversial approach within the IRS, where the mere thought of not sharing taxpayer information with the enforcement functions was considered heresy. But we prevailed and those procedures exist today, so that taxpayers can seek the assistance of the Taxpayer Advocate Service in highly charged situations without fear of retaliation.
A few more examples. In 2005, my office successfully challenged and drove reform of the IRS’s approach to identifying and processing refund claims it believed to be “fraudulent,” an early instance of bias in algorithms causing harm to individuals without sufficient dispute resolution methods and opportunity to present exculpatory evidence. See National Taxpayer Advocate 2005 Annual Report to Congress at 25. In 2006, we identified weaknesses in the IRS’s publications of guidance and instructions to staff, and ensured the IRS Office of Chief Counsel release advice that was subject to disclosure under the Freedom of Information Act. See National Taxpayer Advocate 2006 Annual Report to Congress at 10. Throughout the years, we worked on revising IRS letters and correspondence so that taxpayers were given notice of what the IRS thought they had done wrong, what actions could be taken to resolve the matter, and what rights taxpayers had to challenge the IRS position. (The task of notice clarity is never-ending, but without it there is no procedural due process.) And we constantly worked to revise the IRS procedures in its “Collection Due Process” hearings, which are informal hearings that nevertheless must meet certain statutory requirements, including that independent appeals officers must determine “whether any proposed collection action balances the need for the efficient collection of taxes with the legitimate concern of the person that any collection action be no more intrusive than necessary.” 26 U.S.C. § 6330(c)(3)(C). This extraordinary provision offers pre-deprivation administrative and judicial review in tax collection, where the Supreme Court has declared that none is constitutionally required.
Then there is the Taxpayer Bill of Rights (TBOR), which I first proposed in 2007, the IRS adopted in 2014, and Congress codified in 2015 as 26 U.S.C. § 7803(a)(3). Although written in clear and plain language, the TBOR is grounded in fundamental principles of procedural due process and administrative law. Further, in 2019, just as I was preparing to leave government service, Congress passed the Taxpayer First Act, Pub. L. No. 116-25, which contained provisions that addressed 21 of my legislative recommendations for enhanced taxpayer protections.
As the NTA, I was privileged to oversee the grant program funding Low Income Taxpayer Clinics nationwide, which meant that thousands of low-income taxpayers would have pro bono representation in their disputes with the IRS. Before the clinics existed, tax law, regulations, and procedures addressed the issues impacting taxpayers who had the funds to retain representation and make their concerns and viewpoints heard. The clinics brought tax issues faced by unrepresented and vulnerable populations to the attention of policy makers, thereby making tax law and administration more equitable. For example, by participating in the public comment process of agency rulemaking, the clinics articulate low-income taxpayers’ needs so the agency considers and addresses them. Low-income taxpayers can no longer be overlooked. The notice-and-comment provisions of the APA ensure this broad participation in rulemaking.
I know how fortunate and privileged I was to serve at the highest levels of an important agency for over 18 years and advocate for the rights of taxpayers on a daily basis. But what I also saw during that time were many, many employees of the agency who wanted to do the right thing by taxpayers. My experience is that framing solutions in the language of administrative law and procedure defused situations and helped find a path toward resolution. Even when we couldn’t reach an agreement, the discussions provided a platform for additional advocacy. What I personally learned from my time in government service has enabled me to be a better advocate now that I am in the nonprofit world again.
So, although my young self never anticipated entering government service, today I would argue that if you care about how the government treats those it governs, then you should consider a stint in public service. It does not matter what your political views are. Once you are faced with the myriad issues brought to you by members of the public every day of your working life, you will realize that your actions, within the framework of administrative law, can improve the relationship between government and the public. With these tools, one person can have a positive impact.
“Once you are faced with the myriad issues brought to you by members of the public every day of your working life, you will realize that your actions, within the framework of administrative law, can improve the relationship between government and the public. With these tools, one person can have a positive impact.”
