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    The Tax Lawyer

    The Tax Lawyer: Winter 2021

    The Taxpayer Bill of Rights and the Right to Be Informed: The Positive or Negative Way You Look at It

    Stephanie Hunter McMahon

    Feb 25, 2021

    47 min read

    Businesses Income Tax Individuals Large Corporations

    Summary

    • In 2015, Congress enacted a Taxpayers Bill of Rights (TBOR). To date, it has had little impact in litigation; however, its rights could be given power through interpretation.
    • Facebook, in Facebook, Inc. v. Internal Revenue Serv., challenged the Service and tried to enforce its interpretation of the right to impartial review in an independent forum, one of the ten rights found in the Taxpayer Bill of Rights. A district court disagreed.
    • Public discourse could invest the TBOR with meaning and empower taxpayers.
    • TBOR’s effectiveness depends on interpretation. It could be interpreted as either a negative right, shielding taxpayers from punishment for reasonable interpretations of tax law without prior government guidance, or as a positive right, requiring the government to provide guidance to assist taxpayers.
    The Taxpayer Bill of Rights and the Right to Be Informed: The Positive or Negative Way You Look at It
    Danny Lehman via Getty Images

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    Abstract

    In 2015, Congress enacted a Taxpayers Bill of Rights. To date, it has had little impact in litigation; however, its rights could be given power through interpretation. For example, one listed right, the right to be informed, could be interpreted as a negative right: a shield to protect taxpayer choices in the absence of government-issued tax guidance. Under this interpretation, taxpayers could not be punished for their own reasonable interpretations of the tax law in the absence of prior government interpretation. Alternatively, this right could be interpreted as a positive right: a requirement that the government produce guidance to assist taxpayers in understanding their obligations. Under this interpretation, taxpayers would have the ability to request specific, binding guidance. Under either of these interpretations, the Taxpayer Bill of Rights could be given meaning and empower taxpayers. Continued discussion by courts, as informed by discussion in academia, the media, and the public could give true meaning to these rights. Much as with our rights under the Constitution, the power that rights convey depends on their evolution over time.

    I. Introduction

    The right against self-incrimination is widely known through television shows; unfortunately, the right to quality service from the Internal Revenue Service is not so popularly recognized. The histories and power of these rights also differ. Soon after the U.S. Constitution’s ratification, the first Congress submitted a Bill of Rights to the states, and those rights have grown to be enshrined as sacred parts of American law. Only in 2015 did Congress create a similar list in the Taxpayer Bill of Rights, mirroring the idea but not the power of our constitutional rights. Significantly, the constitutional Bill of Rights did not originally stand on the pedestal it currently occupies, but evolved to occupy that exalted position. Although statutory, the Taxpayer Bill of Rights can also evolve to occupy a similar position if given the proper opportunity and support.

    A bill of rights (tax or otherwise) was not widely advocated at the Constitutional Convention. James Madison, later the father of the Bill of Rights, complained of the inefficacy of these “parchment barriers.” When proposed in the first Congress, a list of rights met opposition as unnecessary, unwise, or merely Madison’s attempt to gain personal popularity. Despite the government’s initial reticence with these constitutional amendments, the Bill of Rights has gained recognition as providing critical protections for the American people. They are not parchment barriers but impose significant substantive limits and obligations on the government.

    Unfortunately, the Taxpayer Bill of Rights remains a parchment barrier. It guarantees the “right [of taxpayers] to be informed” about the tax system and a “right to a fair and just tax system.” But when Facebook, with all of its economic and political power, attempted to enforce its rights under the Taxpayer Bill of Rights, it failed. This leaves open an obvious question: What is the value of the Taxpayer Bill of Rights? While the scope and meaning of these rights for taxpayers continue to be debated, they are not yet enforceable by themselves in court. Instead, the courts have generally interpreted these rights as mere principles to guide the government when implementing the tax law.

    The fact that the rights under the Taxpayer Bill of Rights are statutory, and not constitutional, does not minimize their importance but does change how taxpayers and courts might use them. Similar statutory provisions have been created with respect to the rights of victims and religious freedoms. Their statutory source permits experimentation among state-level equivalents and, at the federal level, obliges courts to interpret other federal statutes in a manner consistent with these statutory rights. With respect to the Taxpayer Bill of Rights, the courts could require that the Code and its enforcement provisions be interpreted in a manner consistent with the ten listed taxpayer rights.

    This Article explores the ways in which the Taxpayer Bill of Rights could be interpreted, focusing on one of the listed rights, the right to be informed. An analysis of the government’s obligation, if any, to provide information to the public about the tax regime provides an opening to explore the meaning more generally of the various rights under the Taxpayer Bill of Rights. Thus, this Article uses the right to be informed as an example of the ways in which each of the taxpayer rights might be given deeper meaning.

    As the Article discusses, the fact that Congress framed the Taxpayer Bill of Rights in terms of rights should not be discounted. If only for rhetorical effect, Congress understood the value in creating rights and claiming rights. Americans often argue in terms of rights. Therefore, this framing may prompt the evolution of the listed prerogatives into something more for American taxpayers. The courts and the Service can interpret these rights as something more, creating both positive and negative burdens on the government.

    The government has the power to give life to rights because no definition of “rights” is universally accepted. Because rights are “a pervasive and contested feature of our political practice,” their use is often ambiguous. Consequently, even though arguments are presented herein in terms of rights, this Article acknowledges that not everyone agrees that rights have “a” meaning.

    One long-standing conception of rights contrasts negative and positive rights. If I have a right to information from someone, that other person cannot deny me the information if in that person’s possession, a negative right, or, perhaps more, must obtain and provide it to me even if not, a positive right. Using the word right in this manner, the holder of a right has the power to make decisions, to “choose to do or refrain from doing,” but the extent of that power depends on which version of the right is adopted. As a consequence, a right held by one person necessarily imposes obligations on another person, but the scope of those obligations is contained in the notion of the right itself.

    With its enactment, the Taxpayer Bill of Rights introduced the language of rights into the Code, language that, on its face, imposes an obligation on the government to provide information to taxpayers. If this framing obliges the government to act, such an obligation may imply that taxpayers hold more than a negative right. As a positive right, the right to be informed would require that the government produce guidance. This obligation could be satisfied by giving taxpayers the ability to request specific, binding guidance. Of course, the mere creation of a right does not mean that taxpayers can force governmental action. Congressional action or Service interpretation is likely required to create a positive right; however, a judge could interpret such language as creating a positive right and then wait to see if the Service responds. Alternatively, if such language is interpreted as creating only a negative right, taxpayers could still use the right to be informed as a shield. The government’s failure to provide guidance would excuse reasonable taxpayer interpretations of the law. Thus, the scope of any right depends on the interpretation of the right.

    For Facebook, the language of rights meant little. In 2018, Facebook challenged the Service and tried to enforce its interpretation of the right to impartial review in an independent forum, one of the ten rights found in the Taxpayer Bill of Rights. Facebook wanted to take its disagreement with the Service’s auditors to the IRS Appeals Office, an independent branch within the Service; it did not want to proceed to litigation in the Tax Court. The district court disagreed with Facebook, denying that the listing of rights created any new obligation for the government. According to Judge Laurel Beeler, “[t]he [Taxpayer Bill of Rights] does not create statutory rights; instead, it addresses IRS employees’ interactions with taxpayers.” Other taxpayers have raised similar claims with no greater success. Consequently, two years after the decision in Facebook, taxpayer rights under the Taxpayer Bill of Rights remain merely aspirational.

    This Article argues that the courts should give the rights listed in the Taxpayer Bill of Rights meaning, either as positive or negative rights. If the right to be informed is a positive right, the government would have the obligation to inform taxpayers by producing guidance materials. The failure to do so would then have some consequence. Alternatively, a positive right may only require that taxpayers be given a means to request information that the government must provide and that would then bind the government. If the right to be informed is a negative right, the government’s failure to provide information would excuse reasonable taxpayer behavior. Which interpretation is chosen, and whether the choice changes over time, will depend on conversations among taxpayers, the Service, the courts, and Congress.

    Whether interpreted as positive or negative rights, the Taxpayer Bill of Rights should be interpreted as more than an obligation on the Service to train its employees, the only obligation recognized by Judge Beeler in Facebook. By re-envisioning what the Taxpayers Bill of Rights could mean, this Article concludes that the listed rights strengthen the federal tax system by repositioning taxpayers and the government with respect to each other. Taxpayers and the government are in a conversation about rights and duties. These rights will only gain meaning through these discussions.

    II. The Theory Behind Rights

    Because the Taxpayer Bill of Rights is framed in terms of rights, its value is based on the value of rights generally. Rights in the abstract may indicate no more than the speaker’s recognition of an idea’s value. Thus, the language of rights per se does not necessitate particular action. Of course, it may be different when the government creates a right. Even if only abstractly, the government’s creation of a right implies a constraint on its own actions. Historically, in the tax area Congress has chosen to create narrowly defined rights, applicable only in specific situations to taxpayers vis-à-vis the government. Nonetheless, the government has the authority to grant taxpayers more broadly defined rights, recognizing that such rights give taxpayers greater opportunities to exercise these rights against the government.

    A. Positive and Negative Rights

    At the time of the Constitution’s framing, the enumeration of rights was legally inconsequential in that enumeration neither guaranteed nor prohibited the judicial protection of these rights. Holders of rights could not demand their enforcement. According to some theorists, rights continue to be no more than a distribution of power that arises in a dialogue among society’s decision-makers to resolve competing claims to power by reason rather than force. In a world beset with scarcity, rights reduce competition over the mastery of the scarce resources that would threaten the resources themselves. Their enumeration is only as valuable as the strength of the agreement underlying them and, in the U.S., that agreement has certainly evolved over time.

    The understanding of rights in the U.S. evolved from an initially limited conception because people did not agree as to the purpose that rights were to achieve. In the constitutional era, most people thought of government power as a practical authority, rather than as defined by its legal authority. Therefore, legal constraints had little place in their view of government. Those who argued in terms of rights often turned to the Lockean or natural right notion of rights as a means to protect the individual. To the extent individuals have self-ownership, rights guarantee to them the freedom to exercise those ownership powers. In the first Congress, James Madison argued that an enumeration of rights would make it easier for individuals to exercise those rights; a bill of rights would have an educative function and operate as means for demanding redress. Not everyone agreed.

    In this way, rights at the founding were limited; and they operated to protect the holder from infringements upon the self. Today often termed negative rights, the sense was that the government and other people should be stopped from violating a person’s self. Rights did not yet entitle people to receive anything, other than this limited form of protection. Based on an assumption that freedom to engage in self-regarding conduct was a primary liberty, the government was to interfere in the least possible manner in order to allow its citizens to exercise the greatest degree of freedom, as long as the citizens did not encroach upon one another.

    Over time, in part because of development and the growing affluence of American society, discussion about rights recognized that negative rights from the government may be insufficient. Not everyone has the means to exercise self-ownership unless provided with basic necessities. Although certainly not accepted by everyone, this conception of rights, more often framed in terms of government responsibilities, imposes obligations on government to provide for the welfare of the nation’s citizens.

    The broader conception of rights creates positive rights, rights that enable people to demand the provision of whatever the right specifies. No longer must government act only to stop others from infringing; something more is required. Each person has an obligation to others through the workings of the government. What those obligations are, and how welfare is defined, depends upon the society. Often welfare rights are defined as rights to reasonable work conditions, an adequate standard of living, rest and leisure, social security, cultural participation, and a share of scientific advancement. Welfare rights accept as a principle that people are “entitled to call on the effort of society as a whole to achieve an acceptable welfare condition for all.” Therefore, a person can demand that the government operate to ensure the provision of his or her rights.

    The distinction between rights that provide protection from infringement, so called negative rights, and rights that demand action, or positive rights, was described by Isaiah Berlin in a seminal work in 1958. Berlin noted the possibility of a conflict between positive and negative rights. For example, if I have a negative right to accumulate my earnings, your positive right to a basic standard of living may necessitate the government taking some of my earnings and redistributing the wealth to you. My negative right to enjoy my earnings is breached to satisfy your positive right to a basic standard of living.

    A concern for some is that the creation of positive rights, requiring that the government assist citizens in their search for happiness, development, or whatever is the society’s measure, will ultimately result in totalitarianism as the government takes an ever-expansive role in its citizens’ lives. Perhaps because of the fear of such invasive power, positive rights may be limited to goods required for survival, such as adequate food and housing. But positive rights can also encompass a far more robust array of welfare rights. Under this latter view, the government’s responsibility is not solely to provide a package of benefits but to increase its citizens’ facilities and power. At the same time, the rights bearer is an active agent rather than a passive recipient. Rights are no longer passive instruments of defense but are tools for the progression of the people within the state.

    The tension between limiting infringement of liberty and requiring action is further complicated because it is built on deeper conceptions of individualism and collectivism. Individualism dominates in western culture to such an extent that actions on behalf of, or in response to, the collective are often suspect. The question is frequently limited to whether individuals are strong enough to “fend for themselves without the assistance of government” and does not examine whether they are strong enough to achieve a higher order of living that may require affirmative action by the government.

    Despite the fact that rights exist as discussed above in the theoretical and philosophical realm, governments create both positive and negative rights through the political process. Thus, no predefined list of positive rights exists; nations create and refine such rights for themselves. In the U.S., a right labeled as a positive right makes it relatively less likely to be judicially enforceable. For example, in DeShaney v. Winnebago County Department of Social Services, a mother brought an action against social workers and local officials for failing to remove her child from the father whose abuse of the child resulted in permanent brain damage. The Supreme Court refused to impose a positive obligation on the state to protect the child.

    The dichotomy of positive and negative rights raises an additional concern that the distinction is artificial and, at times, false. Positive and negative rights may interchange, one for the other, through reframing. Nevertheless, for purposes of this Article, the conception is useful in order to provide a vocabulary to analyze the types of obligations that may be created. Thus, this Article uses the distinction that has evolved between conceptions of positive and negative rights but recognizes that the distinction is not so self-contained in practice.

    B. Statutory Versus Constitutional Rights

    In the tax context there has been no significant effort to grant taxpayer rights through a constitutional amendment. Instead, the goal has long been to create statutory rights, but any distinction based on source does not necessarily mean that statutory rights would be less effective in this context. The courts and the larger government can act to ensure that federal statutory rights are enforced through the interpretation and administration of other federal statutes. The strength and weaknesses of the statutory approach can be seen in the areas of victims’ rights and religious freedom rights. It is beyond the scope of this Article to delve deeply into these other areas in which congressionally defined rights have been effective, but a short description of the way in which statutory rights can be used and the limitations on their use is warranted.

    First, consider victims’ rights. Congress and several states have enacted statutes granting victims limited rights with respect to the crimes they endured. Originating as a proposed amendment, Congress codified a list of rights in 2004 that were somewhat enlarged and clarified in 2015. The Attorney General was required to promulgate regulations to enforce the listed rights. But what victims’ rights entail varies depending upon the granting authority. They often provide a right for victims to participate in a limited way in trials and may entitle victims to payment from the government. Currently, these acts do not confer party or intervenor status on victims. Thus, they provide a contested ground of involvement for victims in the judicial process.

    Even though the federal Crime Victims’ Rights Act provides somewhat greater clarity than does the Taxpayer Bill of Rights, the scope of victims’ rights is not always certain. For example, the right to be “reasonably heard” under the Crime Victims’ Rights Act is obviously vague and in need of interpretation. The right could be interpreted to encompass an in-person interview but that is certainly not the only permissible interpretation. Judges have taken different approaches to interpreting this requirement in a way that demonstrates how open-ended rights could be given practicable meaning.

    The Crime Victims’ Rights Act also provides more explicit enforcement tools than exist under the Taxpayer Bill of Rights—a possible model for future amendments to the Taxpayer Bill of Rights. The Crime Victims’ Rights Act provides that if a district court denies a victim relief, the victim “may petition the court of appeals for a writ of mandamus . . . [and the] court of appeals shall take up and decide such application forthwith within 72 hours after the petition has been filed.” The goal of this provision, at least for Senator Jon Kyl, the primary drafter of the Act, was the fear that “[w]ithout the ability to enforce the [victims’] rights in the criminal trial and appellate courts of this country any rights afforded are, at best, rhetoric.” In this way, Congress expected to create an enforcement mechanism, although one that has not always been respected by the courts.

    The meaning of the Crime Victims’ Rights Act is evolving through discussions of its application. For example, courts and academics were divided over the appropriateness and availability of mandamus as a means of appellate review. Because the meaning of the mandamus provision was the subject of debate, the right has evolved, with Congress stepping in legislatively in 2015. Even without Congress, the debate motivated the courts to provide meaning, although conflicting, to the rights granted by statute.

    Next, consider the Religious Freedom Restoration Act. Directly responding to a Supreme Court decision perceived to limit the Free Exercise Clause, Congress enacted the Religious Freedom Restoration Act in 1993 and, as of 2015, 21 states have adopted similar legislation. The federal statute requires that strict scrutiny be applied to determine whether the Free Exercise Clause of the First Amendment has been violated. Because religiously neutral laws can burden religion as much as laws purposely intended to do so, the Act provides that the federal government cannot substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.

    As has the Crime Victims’ Rights Act, the Religious Freedom Restoration Act has been the subject of debate and varying interpretations since its enactment. The statute was held unconstitutional as applied to cities in City of Boerne v. Flores in 1997, in which a church challenged land use restrictions for its building protected as a historic landmark. The Court held that Congress had overstepped its bounds by applying the law to the states. Nevertheless, the Act continues to be used by the federal government to limit the interpretation of other statutes. In Gonzalez v. O Centro Espirata Beneficiente Uniao do Vegetal, the Supreme Court required that the federal government had to show a compelling state interest to restrict the religious ceremonial drinking of hoasca, a tea containing ayahuasca. Then, in Burwell v. Hobby Lobby Stores, the Court arguably expanded the reach of the Religious Freedom Restoration Act when Justice Samuel Alito declared that the statutory language did not confine it within the bounds of the First Amendment. Consequently, the Act was used to provide businesses with an exemption from the Affordable Care Act’s requirement that employee health insurance plans include contraception coverage. Thus, the Court has willingly interpreted other federal statutes in ways that were consistent with the rights granted for religious freedom by the statute.

    In recent cases involving “culture war” issues, the rights afforded by the Religious Freedom Restoration Act have arguably been expanded to the extent that some courts have interpreted the Act to protect religious observers from complicity in behavior they consider sinful. The debate over the scope of the rights, which occurred in the academic press as well as the public press, demonstrates the ability of the American public to participate in conversations about the evolving meaning of statutory rights. Whether the courts will continue an expansive reading of the Religious Freedom Restoration Act is open to doubt; however, the Act illustrates how statutory rights can be used to limit governmental action more generally.

    The expansion and exercise of rights is not without its detractors. As shown in the examples of victims’ rights and religious freedoms, a primary source of complaint comes from those who disagree with the conception of the right. Because the rights are statutory, they are younger and less well-developed than constitutional rights, putting them at greater risk of statutory revision. They may also be seen as more political than are constitutional rights. It may be the risk of their revision or elimination that forces their advocates not to push their imposition too hard for fear of a public backlash as seen, to an extent, following the Court’s decision in Hobby Lobby.

    C. Historical Rights in Tax

    In many contexts, the concept of rights is broadly defined, such as the “freedom of speech” and “freedom of religion,” especially when those rights were granted in the Constitution. Unfortunately, the Constitution says relatively little about taxpayers’ rights, despite being a document forged by the need to raise federal revenue. There are provisions requiring uniform taxation across the country, apportioning direct taxes according to the population of the states, and prohibiting export taxes. As a result of the 16th amendment, the Constitution now grants the government the authority to tax income without apportionment and does so without reference to taxpayer rights. No other constitutional references to tax or taxpayer rights remain.

    For most of American history, Congress took a similarly limited view of taxpayer rights, and when they were created, the rights were narrowly defined. Apart from the Taxpayer Bill of Rights, as discussed in Part III, Congress has delineated only very specific taxpayer rights that require or prohibit Service or court action. These rights address specific congressional concerns and provide limited remedies. Some of these rights are negative, in that they protect taxpayers from government action, but others are positive and impose specific obligations on the government.

    Dispersed throughout the Code, these limited rights provide taxpayers clear avenues for redressing limited wrongs. For example, section 6213(a) requires that the Service provide notice to taxpayers who then have 90 days (or 150 days if the notice is addressed to a person outside of the U.S.) to petition the Tax Court. Section 7522 provides that the notice must contain an explanation of the amount of tax, interest, and penalties due; however, an inadequate description does not invalidate the notice. Section 6330 requires that the Service notify taxpayers at least 30 days in advance of a levy, with specific taxpayer rights attached such as the right to request a hearing before the levy takes place. Although Congress has located these rights in the portions of the Code to which they relate as a substantive matter (i.e., a right to challenge a levy is included next to the government’s power to levy), it is nonetheless “virtually impossible to educate taxpayers on all of their rights that occur in specific situations.”

    Many of the congressionally created rights are framed as negative rights and limit the government’s actions against a taxpayer. For example, the government may not disclose the information it receives on returns, violate the attorney-client privilege (although there has been movement on this front), or impose penalties if the taxpayer demonstrates good cause for a reporting position and acted in good faith. These negative rights limit the power of government in order to safeguard taxpayer privacy. These specific taxpayer rights support the more general civil and political right against arbitrary government action under a Lockean conception of property that is a bedrock of American principles dating back to the nation’s founding.

    Congress has also created positive rights obligating the government to act on behalf of taxpayers, such as the right to a hearing in response to the imposition of a lien and to special processes before the Tax Court in cases involving deficiencies of less than $50,000. These rights protect taxpayers in their efforts to satisfy their tax obligations and ensure that those obligations are equitably enforced. But as with negative rights, these positive rights are limited and relatively clearly defined. For example, as part of the right to petition the Tax Court for an independent adjudication of tax matters, the court cannot turn away petitioners who satisfy the statutory requirements to contest a tax liability. Taxpayers may also sue for damages resulting from unauthorized collections in a federal district court after exhausting all administrative remedies within the Service. This obligation, possibly framed as the taxpayer’s negative right not to have the government disregard published law, can be a strong motivator for proper Service behavior.

    Many other positive rights in the tax area are theoretical, rather than strictly enforceable. Without enforcement mechanisms, these rights arguably have less concrete value. For example, the right to a net income tax, rather than a gross tax system, requires that taxpayers be granted deductions for the cost of earning income but those deductions cannot be demanded and are, at times, denied. Although most courts agree that the income tax was intended to be a net income tax, and people can argue that they have a right to claim these deductions, courts have been unwilling to make this a legally enforceable right.

    This issue underscores the fact that we should not confuse rights that can be acted upon with the aspirational goals that most hold for the tax system, although the line between such rights and goals can be unclear. Taxpayers may hope that the tax system taxes everyone with similar income similarly (known in tax circles as horizontal equity) but that hope is not a right that can be enforced. Similarly, the aspiration that all taxpayers be treated equally is not reflected in a right to demand enforcement against another taxpayer suspected of evading taxes. Aspirations may abound, but only rights provide definitive protections.

    In a country with over 150 million taxpayers, the circumstances of individual taxpayers vary greatly, and the value of the rights that exist vary with their situations. Some people have the information and skill to use the available rights optimally, and others are unlikely to even know that these rights exist. In the American system, the Service is often required to inform taxpayers about particular rights, such as their right to challenge the Service’s determinations. The effectiveness of that communication, however, can be doubted. Some taxpayers have such minimal contact with the Service that they almost certainly do not understand their rights versus the agency.

    Currently, a positive right to be educated about the tax system does not exist. Moreover, no constitutional or statutory provision requires that the government provide guidance explaining the tax law or taxpayers’ choices in satisfying their responsibilities as taxpayers. Therefore, although taxpayers are required to file their tax returns accurately, there is no enforceable positive right imposing a duty on the government to assist taxpayers in satisfying that obligation. Although part of the Service’s mission statement is to “help [taxpayers] understand and meet their tax responsibilities,” no right to assistance exists that taxpayers can demand be enforced. Courts could potentially, although are unlikely to, find a due process claim for the taking of property if the tax law were sufficiently unclear; however, that result would be based on the inadequacy of statutory language rather than the failure of the administrative agency to explain Congress’s actions and taxpayers’ rights.

    Of these limited positive and negative rights found throughout the Code, these rights share the same opportunity for conflict as in other areas of law, at least under a broad reading of positive rights. For example, the negative right of a taxpayer to prevent the use of illegally obtained information by the Service in an audit against the taxpayer may conflict with a possible positive right of other taxpayers that all taxpayers pay an equitable amount of tax if the enforcement of that right depends on such information. The choice between whether to respect the positive right or negative right when there is a conflict, of navigating the point of conflict, is a political one.

    More specifically, a person’s right to tax guidance (and more general rights in dealings with the taxing authority) depends on the society’s resources and acceptance of the right. To the extent the U.S. strives to be a fair and just nation, it should provide fair and just information about how it raises revenue. But the provision of information that would enable people to understand their government is expensive. Paying the cost of generating the information necessary to explain the system recognizes the government’s role “in fostering the development and exercise of peoples’ capacities for choice. . . . [T]he best state of affairs [is] one in which decisions are arrived at in ways that honour individuals’ own judgemental dignity even if those decisions cost more, leaving less time and resources for other goods . . . .”

    It may be that “[p]eople should know and understand the reasons for the basic distribution of wealth, power, authority and freedom. Society should not be shrouded in mystery, and its working should not have to depend on mythology, mystification, or a ‘noble lie.’” If “political authority should be intelligible and acceptable to those who live under it,” the taxing regime must be explained to taxpayers. To the extent that people are “self-originating sources of valid claims” rather than slaves, people as taxpayers have a right to information in order to make autonomous choices with respect to their taxes. In a free society, individuals can make their own claims, including a claim for information from their government, but when they can state a right for those claims remains unclear. It is certainly not written in the Code.

    III. The Taxpayer Bill of Rights

    Although Congress has granted taxpayers certain specifically defined rights, these rights are often insufficient to protect taxpayers and, even when a specific right might apply, are frequently unknown to the taxpayers involved. One Taxpayer Advocate survey found that less than half of U.S. taxpayers believed they had any rights before the Service, and only 11% believed they could identify the rights they possess. In an effort to remedy this information gap, Congress enacted the Taxpayer Bill of Rights, enumerating a number of rights in broader, more rhetorical language. Nevertheless, as currently interpreted, a taxpayer’s only recourse is to Congress if the Service fails to recognize the listed rights.

    One of the rights listed in the Taxpayer Bill of Rights is the right of taxpayers to be informed. This right is invoked in debates regarding the government’s creation of tax guidance. Unfortunately, what the right means, or should mean, is unclear: is it merely exhortative, a negative right that operates as a shield, or a positive right that demands government action? This Part explores the Taxpayer Bill of Rights generally and, more specifically, its right to be informed.

    A. What Congress Intended

    The history of the Taxpayer Bill of Rights reflects an evolution of political will over the last 40 years. Having started down the path in 1979, Congress now requires that the Service publish a statement of taxpayer rights and distribute it to taxpayers. Moreover, the Service is required to train its employees to act in accordance with taxpayer rights. Nevertheless, taxpayers still have no mechanism to force the Service to observe the listed rights.

    The development of taxpayer rights began with the creation of an independent body to report on Service operations. Following public disclosure of tax-related misdeeds by the Nixon administration, namely the use of tax information for personal and political objectives, Congress created the office of Taxpayer Ombudsman in 1979 as a “primary advocate” for taxpayers. Thus, the first step was a response to political misdeeds by creating an overseer of the tax administration. Taxpayers were given no rights per se, but Congress recognized that inchoate rights might be infringed.

    In 1988, Congress renewed its focus on taxpayer rights. It assigned the Taxpayer Ombudsman specific duties, including the duty to work with taxpayers experiencing hardship and to issue annual reports to Congress. In addition, Congress enacted 20 specific, actionable rights, including civil damages for certain improper collection activities, requirements of specificity in Service notices, and permission for taxpayers to rely on written Service advice. Finally, Congress created the “Omnibus Taxpayer Bill of Rights,” which required that an information statement be provided to taxpayers, the first congressional reference to taxpayer rights. In this way, Congress recognized the need for taxpayer rights but largely in the frame of negative rights to protect taxpayers from infringement by the government.

    Eight years later, Congress adopted the next layer of taxpayer rights, still largely in the form of negative rights, when it adopted or amended more than 40 procedural provisions in the Code. For example, Congress required that the Service send each taxpayer an annual account of the taxpayer’s amount of tax delinquency and that the Service notify taxpayers before altering, modifying, or terminating most installment agreements. To facilitate the enforcement of those rights, Congress replaced the Taxpayer Ombudsman’s office with the Office of the Taxpayer Advocate, to serve as an independent body within the Service with powers to take greater action on behalf of taxpayers. Through the Taxpayer Advocate, taxpayers had a representative to protect them in the event of Service overreach.

    Two years later, in 1998, Congress held hearings that resulted in significant negative publicity for the Service. Witness-provided anecdotal evidence of Service abuse was accepted as fact and as evidence of more widespread abuse of taxpayers by the agency. Thereafter, Congress enacted a major overhaul of the Service, including changing the Taxpayer Advocate Office’s name to the National Taxpayer Advocate Service, as it remains today, to be coupled with Local Taxpayer Advocates. Additionally, Congress added 70 more provisions that were intended to protect taxpayers in concrete ways, including new innocent spouse rules, limited shifting of the burden of proof from taxpayers to the government, and funding for low-income taxpayer clinics. This approach was consistent with international norms of the time that focused on protecting taxpayers.

    The expanding patchwork quilt of taxpayer rights was nevertheless insufficient protection according to taxpayer advocates. Instead of these narrow rights, the long-standing National Taxpayer Advocate Nina Olsen, since retired, recommended the adoption of a bill of rights modeled on the U.S. Constitution’s Bill of Rights. The focus was less on the creation of new rights than publication and awareness of those that already existed. Noting in its 2013 report that less than 50% of U.S. taxpayers were aware of their rights before the Service, the National Taxpayer Advocate argued that the government “can and must do a better job of making taxpayers aware of their rights and enabling them to assert these rights.” Nevertheless, the Taxpayer Bill of Rights was to be general and not absolute, with a broad definition of taxpayer entitlements.

    In response, the Service itself adopted a Taxpayer Bill of Rights in 2014, albeit with a limited objective. In its statement accompanying the publication, the Service declared that it had taken “the multiple existing rights embedded in the tax code and group[ed] them into 10 broad categories, making them more visible and easier for taxpayers to find on IRS.gov.” Thus, the Service did not set out to create new rights but to reiterate the rights that existed in a catchier and more centralized framework.

    Importantly, the Service did not impose on itself any consequence if its agents violated the newly listed rights. An anonymous letter written the day after the Service’s posting called the Taxpayer Bill of Rights “no more than a cynical move by the IRS to stave off further regulation by Congress.” Quoting from Marbury v. Madison, the author argued that by not giving taxpayers enforceable powers in its Taxpayer Bill of Rights, the government would no longer be a government of law and not of men because “the laws furnish no remedy for the violation of a vested legal right.”

    The Service’s position was not, however, dissimilar to that of the Taxpayer Advocate. At the time, the Taxpayer Advocate did not argue that a Taxpayer Bill of Rights would create new rights and referenced existing statutory provisions as sources of the rights obliquely referred to in what was subsequently enacted as section 7803(a)(3) of the Code. One of her Attorney Advisors concluded after-the-fact that the list merely referenced other rights already provided in the Code, which was one reason for its lack of specificity. For example, the Taxpayer Bill of Rights demanded quality service, defined by the Service to include “prompt” service, but what qualifies as “prompt” was not defined because the term necessarily varies by situation. A risk of such a general approach, recognized at the time, was that taxpayers could read the list and expect the enumerated rights to be more inclusive than actually intended.

    The next year, Representative Peter Roskam (R-IL) reintroduced a proposal to enact a statutory taxpayer bill of rights, which was referred to the Ways and Means Committee of the House of Representatives. Concerned that the existing Taxpayer Bill of Rights was only an internal agency document, merely persuasive, that did not bind the government, Congress codified the rights as listed by the Service in section 7803(a)(3). Mirroring the Service’s listed rights, Congress similarly failed to enact statutory remedies.

    The language of section 7803(a)(3) requires that the Commissioner train employees to act in accord with rights “as afforded by other provisions of this title, including” those listed. The listed rights are:

    (A) the right to be informed,

    (B) the right to quality service,

    (C) the right to pay no more than the correct amount of tax,

    (D) the right to challenge the position of the Internal Revenue Service and be heard,

    (E) the right to appeal a decision of the Internal Revenue Service in an independent forum,

    (F) the right to finality,

    (G) the right to privacy,

    (H) the right to confidentiality,

    (I) the right to retain representation, and

    (J) the right to a fair and just tax system.

    The provision does not define any of those rights or cross reference other provisions.

    In the absence of legislative history to the contrary, there is little reason to presume an enforcement mechanism not previously contemplated. The House stated that the new provision adds to the Commissioner’s duties “afforded by other provisions of the Internal Revenue Code.”

    The Committee has found examples of IRS employees showing disregard for the rights and protections afforded taxpayers under the Code, and that such disregard may be a result of lack of emphasis on the importance of such rights. Any public perception that such disregard is common and not taken seriously by upper management at the IRS undermines trust in the integrity of the IRS. The Committee believes that the public trust that the top management of the IRS is committed to ensuring such rights is imperative to good tax administration. Although the IRS has recently published a Taxpayer Bill of Rights, such publication does not itself carry force of law or impose any obligations on the management or employees of the IRS. Accordingly, codifying the requirement that the Commissioner assume responsibility to implement the bill of rights is warranted to ensure public trust.

    Without more it is hard to define the limits of what Congress intended when it enacted the Taxpayer Bill of Rights. Perhaps Congress merely intended to draw attention to other rights, in effect to provide a roadmap. If so, it is odd that Congress chose not to cross reference the other relevant Code sections. If the goal was to inform taxpayers of the existence of these rights, the failure to include information regarding the particulars of those rights was a significant omission.

    In some instances, the applicable cross-references are generally straight-forward. For example, pursuant to section 7803(a)(3)(H), the Commissioner is required to ensure that Service employees are aware of the right to confidentiality, which is separately addressed in section 6103. Section 7803(a)(3)(H) provides confidentiality and section 6103 provides that “returns and return information shall be confidential.” Other separate sections addressing the underlying rights are harder to find. As one of its rights, the provision lists the right to quality service, but taxpayers may be unaware of how this is protected. For example, taxpayers may continue to be unaware that the Service is prohibited from communicating with taxpayers at inconvenient times, generally before 8 a.m. and after 9 p.m. This more detailed level of information regarding their rights is not proffered in the current iteration of the Taxpayer Bill of Rights.

    Second, perhaps Congress only intended that the list serve an educational tool for the Service itself. The lack of an enforcement mechanism suggests the list is not duplicative of the underlying specific rights, and the list is framed as a directive to the Commissioner. The district court, in Facebook, concluded that the educational function was sufficient so that the statute did not have to be interpreted as creating positive rights for taxpayers. Under this reading, the only change brought about by codification was to create an internal employment matter for the Service.

    Finally, perhaps Congress intended that the Taxpayer Bill of Rights codify aspirational rights already recognized as important. The latter is consistent with international norms at the time, especially if, as aspirational rights, they did not impose any obligations on the agency to comply with the new rights. Similar to Madison’s view of the Bill of Rights as parchment barriers, these rights would have little power beyond acting as a rallying cry for taxpayer action, although taxpayers would be free to pursue specific rights found in other Code provisions.

    The value of codification was not settled at the time of the creation of the Taxpayer Bill of Rights. Despite the establishment of a framework for tax administration, the National Taxpayer Advocate accepted that “it is not clear whether the 2015 legislation provided these rights to taxpayers.” Regardless, the public may care little about the government’s general statement of rights. When the Taxpayer Bill of Rights was enacted, Tax Notes, probably the most widely used tax publication for practitioners and academics, made only passing reference with one anonymous letter the next day.

    Since the enactment of the Taxpayer Bill of Rights, academics have tended to focus on its power to improve confidence in the tax system. Professor Allison Christians argued:

    Codification would give taxpayers a symbol of assurance of their right to laws that are fair and fairly administered, which would reverse the deterioration of taxpayer morale, shore up the voluntarism that is so critically necessary to ensure the continued sustainability of the system, and thus sustain the humanity of all those who contribute to American society.

    Professors Alice Abreu and Richard Greenstein argue that the Taxpayer Bill of Rights creates a “powerful normative force that supports enforcement.” Professor Leandra Lederman concludes it was to “ensure public trust” in the achievement of the rights.

    Regardless of the specific goal, the Taxpayer Bill of Rights itself provides no enforcement mechanism. The underlying, specific rights granted in other provisions may or may not have enforcement tools. For example, the right to confidentiality has a strong enforcement tool. If an agent violates confidentiality, the agent is to be fired as a result of the congressionally-mandated “Ten Deadly Sins” enacted in 1998, that necessitates the termination of employment. Termination of employment for breach of the right is a clear enforcement tool. Other rights, however, have no such tool, although some, such as notice, are interpreted as jurisdictional requirements for the imposition of tax against a particular taxpayer.

    The Ten Deadly Sins, operating as explicit employee-focused sanctions, are not without a downside. The heightened risk to Service agents of the Ten Deadly Sins resulted in reduced enforcement action. In the first year after its enactment, the Service seized property 161 times, down from almost 2,300 and over 10,000 in the two prior years. Although benefiting those who would otherwise have been subject to improper collection efforts, the reduced level of enforcement permitted some tax evaders to benefit from their tax evasion.

    Some have called for the Taxpayer Bill of Rights to be strengthened through the addition of an enforcement mechanism, but not all agree that, as written, it can be interpreted as enforceable. Professor Greenstein argues that an implied right of action exists under the theory laid out in Cort v. Ash. Nonetheless, and despite the framing of the rights in absolute terms, Professor Greenstein argues that any remedy should be based on the facts and circumstances of each particular situation. Professor Lederman disagrees and maintains that, because the statute “does not explicitly provide a private right of action,” the courts cannot develop new remedies under existing Supreme Court precedent. The fact that the language of section 7803(a)(3) does not explicitly designate taxpayers as a benefited class of the listed rights but is, instead, a command to a federal agency, is generally considered insufficient to create a federal right of action.

    Notwithstanding the lack of an enforcement mechanism, the Service has provided a definition of each right on its web site in order to provide greater context and meaning for taxpayers. Through the use of hyperlinks, additional information is provided for each right. Nevertheless, the Service does not cross reference any specific underlying rights or provide information concerning any the enforcement mechanisms for those rights.

    One of the rights in section 7803(a)(3) is the right to be informed. Although Congress was not clear what it intended this provision to mean, the Service has provided the following clarification:

    Taxpayers have the right to know what they need to do to comply with the tax laws. They are entitled to clear explanations of the laws and IRS procedures in all tax forms, instructions, publications, notices and correspondence. They have the right to be informed of IRS decisions about their tax accounts and to receive clear explanations of the outcomes.

    The right to be informed includes both generally applicable information—“clear explanations of the laws”—and more specific information relevant to a taxpayer’s particular circumstances.

    Of course, the government does provide a tremendous amount of information about the tax law in a variety of forms. For example, in 2018, the government-produced 1,035 items of guidance in addition to forms and publications, but that represents a reduction from 2,309 in 2008. Unfortunately, even when guidance is produced, taxpayers are often unable to rely upon it when they file their tax returns because the guidance lacks authority. This raises important questions about whether the right to be informed implies an ability to rely on the information provided.

    There is a downside when the government creates guidance. First, the production of guidance can be expensive and time-consuming, particularly guidance of the kind that taxpayers may rely upon. Second, government-produced guidance imprints upon the law the Treasury Department’s or Service’s interpretation. Doing so reduces taxpayers’ opportunity to craft their own interpretations of the law. Following the publication of guidance, the government’s interpretation may dominate future discussions of the law.

    B. Alternative Interpretations

    Congress has a long history of creating specific rights in tax and, in 2015, enacted the Taxpayer Bill of Rights framed as instructions to the Commissioner of the Service to ensure Service employees respect the listed rights. There is little indication that Congress intended a broad new grant of taxpayer rights, and the public was certainly not aware of it as such. Nevertheless, Congress enacted a provision that references specific taxpayer rights as though they have meaning. The remainder of this Article describes several possible approaches that would give substantive content to these rights. The discussion adopts the right to be informed as a specific example because there has been considerable academic and legal debate about the importance of tax guidance and its forms. The same analysis could apply to discussions of the other listed rights.

    Based on a recognition that rights can be interpreted in different ways, this Article argues that their meaning could evolve over time as taxpayers and the courts explore these taxpayer protections despite some people’s fear that if the listed “rights were uniformly and fully enforced, the tax system would grind to a halt.” Accepting that all rights must be limited in some way does not require that their interpretation be made on an ad hoc basis. The debate over the rights in and out of the courts will properly define the nature of the rights named by Congress.

    1. Taxpayer Rights as Negative Rights

    Historically, the government has imposed few burdens on itself when administering its taxes, although Congress has given taxpayers many procedural rights. A reasonable fear could be that affirmative obligations would open the government to prohibitively expensive and time-consuming work. Consistent with this concern, the Taxpayer Bill of Rights could be interpreted as creating a negative right for taxpayers that does not impose any affirmative obligation on the state. Viewed as a negative right, taxpayer choices would be protected from interference and personal liberty protected from government infringement.

    With a negative right to be informed, taxpayers would be free to adopt their own interpretations of the law when filing their tax returns if the government has failed to issue guidance informing taxpayers of its interpretation of the law. In this way, a negative right would protect taxpayers in the absence of a formal interpretation of a tax statute. Thus, a taxpayer would claim the right to interpret the law and make choices regarding filing with a negative right to self-governance. This need not go so far as to excuse illegal tax evasion but could be limited to permitting lawful tax avoidance through favorable interpretations of ambiguous statutes.

    As a shield, the right to be informed permits taxpayers to craft their own reasonable interpretations of statutes without the fear of subsequent challenge—or, more likely, only a challenge on the issue of reasonableness. This empowers taxpayers who, today, must prove that their interpretation is the correct interpretation of the law. Under this theory of the negative right, even if a better interpretation exists, when the government has not published guidance as to its preferred interpretation, taxpayers may choose any reasonable interpretation.

    The benefit of interpreting taxpayer rights as negative rights has limits. With the right to be informed, for example, taxpayers may not be aware of all the reasonable interpretations of a statute. Moreover, this right is costly for taxpayers in that they must craft their own interpretations and gauge the reasonableness of those interpretations. Nevertheless, this improves the current situation in which taxpayers do not have such a shield.

    Additionally, a negative right would give taxpayers a shield when using available government-produced tax guidance. No longer would the government be permitted to issue guidance but deny taxpayers the ability to rely on it, claiming the guidance has no preferential value. Moreover, the government could not retroactively alter guidance after taxpayers have relied upon it. With such a shield, taxpayers could rely on government interpretations of the law. This shield is not currently available. Although Congress has limited (but not eliminated) the Treasury Department’s ability to create retroactive regulations, the government is normally immune from equitable estoppel.

    Although the frequency of this type of problem should not be overstated, the issue of taxpayer reliance on government guidance below the level of regulations has arisen in several cases. For example, in Wilkes v. United States, the taxpayer argued that the estate tax return instructions contradicted the Service’s litigating position. In Adler v. Commissioner, the taxpayer argued that he relied on Publication 17, Your Federal Income Tax for Individuals, in deducting dancing lessons as exercise and a “medical care” expense. In Bobrow v. Commissioner, the taxpayer argued that he relied on Publication 590, Individual Retirement Accounts (IRAs), in rolling over his accounts. To the extent taxpayers actually rely on the government’s own presentation of the law and are subsequently found to owe additional tax, tax morale is almost certainly negatively affected.

    Allowing taxpayers to rely on published guidance does not prevent the government from subsequently changing its interpretation of the law. The ability to change the interpretation of law, however, need not extend to the choice to enforce the law against particular taxpayers. In the same way that prosecutors have discretion over whom to prosecute, the Service has the freedom not to enforce provisions of the Code when doing so would require the Service to contravene a prior interpretation for the time when that prior interpretation was circulated as the government’s position. Raising issues of fairness and the impact on tax morale, it is reasonable only to enforce changes in published guidance prospectively, especially as Congress retains extensive powers over the agency—including its budget—if it appears the Service is wantonly changing the law.

    Thus, the right to be informed could be interpreted as a negative right that would protect taxpayers in two ways. Taxpayers could develop their own reasonable interpretations of statutes that would be respected in the absence of government-produced guidance to the contrary. Additionally, when government guidance is available, taxpayers could rely upon it without the risk of retroactive changes to the guidance, regardless of the form of that guidance. Such a negative right would be a significant and powerful change if accepted by the courts.

    2. A Positive Change: Requiring the Government to Produce

    Accepting the right to be informed (or any other right of the Taxpayer Bill of Rights) as a negative right is not its only possible interpretation: another approach would be to interpret the right as a positive right. Such a right to be informed would require that the government provide taxpayers with the information necessary to make informed decisions regarding their taxes. Consequently, the government would be obligated to produce guidance materials. As with other positive rights, the question arises regarding the proper limits as to the amount of guidance that can be demanded and how to enforce the right without placing an undue burden on the tax system.

    A justification for an interpretation of the right to be informed as a positive right is that taxpayers’ choices are only meaningful when taxpayers are aware of the consequences of those choices. For the right to be informed to have value, taxpayers must be empowered to understand the operation of the law. Taxpayers require resources, information, and education to evaluate the choices and risks of taxation. In a manner similar to their need for resources, information, and education to evaluate their choices to provide labor or participate in the economy, these basic building blocks should be provided as part of a positive right to be informed.

    Accepting a positive right to information builds on the idea that human rights include the facilitation of freedoms. Under this theory, people have a right to the things needed to permit them to enjoy an underlying substantive right. This requires the government do more than not limit people’s ability of action, the government must “secure the possibility of rights being exercised.” Using a tax example, the creation of a right to innocent spouse relief means little if taxpayers are not aware that the right exists. Their right, therefore, includes not just the right to relief from taxes but to the information necessary to exercise that right.

    This creates a positive obligation on the state similar to providing other economic goods but, in this context, the government must provide the knowledge for taxpayers to retain income and goods. The claim to the right to guidance is increased because of the extent to which social policy is now operationalized on tax returns. Taxes are a means to raise revenue and also as a tool to distribute aid or incentivize behavior. Viewed in this way, tax guidance is at the boundary between older conceptions of political and economic rights and socio-economic rights. If taxpayers do not understand the Code and the limits of the established taxing power, they have a socio-economic right to have the law explained to them. The tax system has an obligation to taxpayers to facilitate their understanding so that they may enjoy their other rights.

    Even if a positive right to be informed were accepted, this interpretation would not require that taxpayers be given an infinite amount of information. A system of defining the amount of guidance required could be devised. Of course, the expectation would be increased government production of information and the allocation of the agency’s budget to that goal. To accomplish this, guidance must be published in several languages to make it accessible to taxpayers, a job that is far from complete. Most taxpayers want information in a wide variety of ways but satisfying all the preferences equally might be unreasonable for the Service. A filtering of information would continue with pressure on where the line of required information is placed.

    One low standard, consistent with the negative right conception of the right to be informed, is that the failure to provide information would excuse taxpayer behavior. This would not need to excuse tax evasion but could permit reasonable actions when the government has failed to satisfy its obligation to inform. As this right offers little more than the negative right, I will table this discussion.

    Another way of interpreting the positive right would provide taxpayers with a means of requesting information that the government must provide and that would then bind the government. In this interpretation, positive rights need not create a powerful nanny state, but one that is beholden to explain what it is doing. This is consistent with the Service’s current treatment of its written advice to taxpayers in that taxpayers may rely upon specific written advice that they receive. Although taxpayers currently have that useful right, today there is no method by which taxpayers can routinely ask questions and receive written feedback.

    Creating this tool for taxpayers would be financially costly for the government. In an era when the Service’s budget has been cut for more than a decade (when controlled for inflation), creating this requirement would divert resources from other agency priorities. Today, when the average taxpayer call is answered after more than 38 minutes, if at all, it would be a significant challenge to create a regime in which taxpayers can demand written, binding responses to their questions.

    In addition to the cost, this interpretation would be difficult to administer because not every taxpayer would know how to phrase tax questions in a way that would permit an agent to provide meaningful advice. Nevertheless, with the increased use of artificial intelligence, a system could be created that would facilitate this exchange without breaking the back of tax administration as agents struggle to limit their advice to what taxpayers are asking and solicit sufficient information for that advice to be accurate and meaningful. Until such a system is in place, this positive right to information might of necessity be aspirational.

    This shift in focus, putting the burden on the government to create guidance, would be a significant shift from how the law functions today. In Moya v. Commissioner, the taxpayer asserted the right to be informed, complaining that she requested clarification of “procedures, forms, and notices” and sought an in-person interview that she did not receive. The Tax Court disagreed, concluding that the Taxpayer Bill of Rights “did not add to petitioner’s rights” and that the court would not “lift or lighten her burden of proving error in respondent’s determination of deficiencies in her tax.” But when framed as a taxpayer’s positive right, this lifting of the burden is exactly what the government would be required to do. In doing so, the government would give meaning to the right to be informed.

    C. Burdens with the Rights

    If the Taxpayer Bill of Rights creates an obligation for the government to provide information to taxpayers, one could reasonably argue that taxpayers should then have a responsibility to use that information. Today, taxpayers have no obligation to do anything with the guidance provided by the government other than risk penalties if they fail to follow guidance and doing so results in the underpayment of tax. The expansion of taxpayer rights to include such a responsibility could increase taxpayer understanding and participation in the tax system.

    This concept is not new. In 2007 when the National Taxpayer Advocate first requested a taxpayer bill of rights, she also proposed an accompanying list of five taxpayer responsibilities. These included a duty “to be honest,” “to be cooperative,” and “to pay taxes on time.” The thought was that both sides of the social contract needed to be made explicit in order to remind the government and taxpayers of their obligations to each other. The reciprocal nature of government imposes obligations on both the taxed and the government that dispenses the revenue.

    Interestingly, the Taxpayer Advocate proposed no taxpayer responsibility that directly related to the right to be informed. Such an obligation could be extrapolated from other listed obligations, such as the obligation to cooperate, but the proposal did not require that taxpayers access the information the government provides. This seems to miss an important opportunity to balance the table between the government and taxpayers and to ensure the government’s increased costs in providing information are not wasted. Drawing such a connection between each side’s burdens would also highlight the interdependent relationship between government and taxpayers.

    This obligation could be made express and not create an unlimited obligation to search for government-produced guidance. For example, taxpayers could be obligated to read the instructions accompanying the forms they sign and search the Service’s website for information on topics relevant to them. To make this a palatable request, the government would need to place its guidance in a central repository that is reasonably easy to search.

    Unfortunately, as many school districts learned with Covid-19, not everyone has access to the internet. Therefore, creating a burden that is too rigorous (possibly anything more than instructions) may be inequitable. An alternative may be to spread information about tax issues in low-tech ways that reach lower-income taxpayers who are less likely to have internet access. For example, information necessary to claim the Earned Income Credit could be printed and distributed more widely.

    In any case, the government should give considerable thought about how it conveys information, especially if taxpayers are obliged to review it. The Taxpayer Advocate Service conducted one survey and found that most taxpayers did not read Publication 1 explaining taxpayer rights. This should not be unexpected because more than half of all taxpayers, and for some groups more than three-quarters, use return preparers. To the extent that large segments of taxpayers fail to use information currently does not mitigate the need for its production but speaks to the burden of increasing its usage.

    D. Creating the Right Debate

    To the extent that rights are political creatures, their development depends on the political conversation surrounding them. Consequently, to give a fuller meaning or understanding to taxpayers’ rights as currently codified and therefore subject to change, a political conversation must be fostered that accepts the existence of taxpayer rights and envisions a meaning. The form of that conversation needs to be many faceted, well timed, and well targeted to those with the ability and inclination to increase taxpayer rights. It must also be wide ranging to be worth the political capital and administrative cost of increasing taxpayer rights.

    This is not to suggest that the conversation is new, and it certainly did not start with this Article. Those seeking to infuse taxpayer rights with more substantive meaning have important, and long-standing, allies. As previously discussed, the National Taxpayer Advocate Service, as an important voice within the executive department, has advocated on behalf of taxpayer rights for over a decade. Through its appeals to Congress in Annual Reports and through its work with the Service, the Taxpayer Advocate Service has pushed to shape the conversation about rights. Despite a recent change in leadership, there is no reason to doubt it will continue to speak for taxpayer rights and suggest concrete ways to give them substantive meaning.

    Other allies are not tied to the government. Former National Taxpayer Advocate Nina Olson created the Center for Taxpayers Rights that may take the lead in these debates. Additionally, think tanks and academics could choose to play a role by engaging in a robust discussion of the pros and cons of various interpretations. To date, however, many think tanks have ignored the issue of taxpayer rights.

    The location of the discussions is likely as important as who is engaged in them. Within the Service, employees are to be trained about taxpayer rights and reminded of them by the Taxpayer Advocate Service. Also, in the past Congress has proven willing to hold hearings on the Service’s operations and over taxpayer rights. That discussion must continue. Although the enactment of taxpayer rights was a victory for its advocates, only Congress can definitively explain whether it envisioned a positive or negative meaning for those rights.

    Additionally, the debate regarding taxpayer rights should occur in the courts. Litigation by Facebook and other influential taxpayers, low-income taxpayer clinics, or other parties must continue to push for the application of taxpayer rights. By assuming that taxpayer rights are more than a hollow promise, taxpayers can prod the courts to agree. Through amicus briefs, proponents of expansive interpretations of the listed rights can advocate that judges give the listed rights appropriate meaning as an over-arching statute to guide the interpretation of the Code. The fact that many tax cases are heard in the Tax Court opens the door to thoughtful dialogue by tax specialists in the judiciary, the executive branch, and taxpayer advocates.

    Finally, the public and the press have a role to play, both by demanding taxpayer rights and by challenging their meaning. Ultimately, taxpayers will determine whether, and to what extent, the government continues to confront this issue. Through a multi-faceted dialogue, the meaning of taxpayer rights can evolve. Currently mere parchment barriers, they may be given a vibrancy seen in other rights, both constitutional and statutory.

    IV. Conclusion

    Much of the discussion of positive and negative rights occurs in the constitutional realm or with respect to individuals’ obligations to each other. Less theoretical work has been done when the government creates rights to provide its subjects with procedures or goods that might require an expensive investment of society’s resources. To the extent that the society does not agree that everyone should be provided a good or, in this case, information, difficult discussions need to occur concerning the meaning of those rights to resolve any conflict between what the government can provide and what the public demands.

    Thus, discussion can give rights wide-ranging meaning, a meaning that can evolve over time as part of a broader discussion of governmental responsibilities and obligations. This Article is the beginning of a discussion of how taxpayer rights can be made substantive. The proper place on the spectrum of negative and positive rights can only be properly determined by a society that considers the meanings and the costs and benefits of each.

    Marbury v. Madison may have established the principle that legal rights without legal remedies is a bad normative plan for government, but moving to enforceable rights can be difficult. Today, the lack of enforcement power is exactly what the Taxpayer Bill of Right suffers. Facebook Inc. lost its attempt to give taxpayer rights an enforceable meaning. The public has the chance to change this. By engaging in a debate about rights, the public can encourage the courts to look at the statutory language as more than aspirational or an internal matter for Service employees. The courts can decide that, by enumerating taxpayer rights, Congress acknowledged their existence. And that existence can have real meaning.