May 17, 2013
The IRS Scandal: Does It Fit With The IRS Weltanschauung?
Posted by David Zaring

This is not the place to go for careful consideration of tax policy, but we do know something here about business regulation more generally, so an observation and a reference with regard to the IRS investigation of tea party groups and their 501(c)(4) status:

  • I assume that the decision to investigate the tea party applicants by the agency was an exercise of enforcement discretion; as such, it should be unreviewable by the courts under the principle that agencies cannot be reviewed for their decision to bring enforcement actions on one set of guys as opposed to another set of guys (the idea is that reviewing those sorts of decisions would enmesh the courts too much in the work of the agency).  The denial of an application for 501(c)(4) status, oddly enough, would be plainly reviewable as a matter of administrative law.  But doesn't appear to be what happened here.  Of course, the mere fact that you can't go to court doesn't make it right, and what is happening here is supervision (pretty angry supervision, too) by the other branches of government, rather than by the judiciary.  Moreover, this is tax, and tax is different; there may be special review provisions at stake in the tax code I'm not aware of.
  • Kristin Hickman is your source for the administrative procedures adopted by the IRS, and one of the themes of her work, fwiw, is that the IRS rarely complies with some of the basic principles of administrative law.  See, e.g., here and here and here.

Administrative Law, Taxation | Bookmark

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