February 17, 2020 The Tax Lawyer

Classifying Tax Guidance According to End Users

Vol. 73, No. 2 - Winter 2020

Stephanie Hunter McMahon

Abstract

The federal government issues tax guidance to maximize taxpayers’ voluntary compliance with, and the Service’s consistent enforcement of, the federal income tax. This guidance comes in a variety of forms, including regulations, revenue and private letter rulings, forms, and publications. The choice among forms is currently based on the content of the guidance without adequate, if any, consideration of how taxpayers will use and rely on that guidance. This Article argues that this method is often indeterminate. The real consequences of form, from the required procedure for its promulgation, deference to be given to it by courts and taxpayers, and penalties for failure to follow it, demand that classification be made purposefully. That decision should be made by looking at the guidance’s intended audience—the biggest audience being the taxpaying public. When issuing guidance for taxpayers, the government has different purposes—either to facilitate the claim of tax benefits or to reduce tax avoidance and evasion. That difference in purpose should be made apparent to taxpayers. Reframing guidance around who uses it and what they can reasonably expect from the guidance would permit Treasury and the Service to better advise taxpayers and create a coherent theory of guidance.

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