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For the past seventeen years, the Internal Revenue Service (Service) and the U.S. Tax Court (Tax Court) have unfairly penalized unrepresented taxpayers by ignoring Congressional safeguards in reaction to widely reported Service abuses. Those safeguards were enacted when Congress passed the Internal Revenue Service Restructuring and Reform Act in 1998 (IRS Reform Act). While the IRS Reform Act stopped many of the more egregious abuses, it has thus far failed to provide the meaningful penalty protections Congress sought.

Prior to passage of the IRS Reform Act, the Service routinely imposed tax penalties without indicating to taxpayers either the statutory basis for the penalty or how the penalty was calculated. In addition, many lower-tiered Service examiners assessed penalties against taxpayers without any supervisory approval, which led to the widespread belief that either the Service was penalizing taxpayers indiscriminately, or using the penalty to strengthen its negotiating position with taxpayers. In the time leading up to enactment, the Senate noted protections were needed because “taxpayers are entitled to an explanation of the penalties imposed upon them . . . [and] penalties should only be imposed where appropriate and not as a bargaining chip.”

The IRS Reform Act was intended to balance the playing field between the Service and taxpayers. To meet those goals, the IRS Reform Act added three new provision in two new sections of the Internal Revenue Code (Code) requiring the Service to: (1) include detailed information about the basis for penalties, as well as the penalty calculations, (2) have supervisors approve, in writing, all discretionary penalties, and (3) bear the burden of production with respect to tax penalties in court proceedings.

While the Service has generally met the first provision, it has routinely avoided the second and ignored the third. Although the second requirement requires supervisory approval of non-discretionary penalties, the Service fails to provide taxpayers with any proof that such approval was obtained, and, in at least two recent cases discussed herein, has argued that taxpayers have no redress if such approval was not obtained. In addition, the Service has chosen to narrow the definition of discretionary penalties in order to avoid the law.

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Virginia Tax Review





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