2022 Year in Review – Jurisdiction to Litigate Your Tax Dispute

2022 saw much litigation regarding the jurisdiction of courts to hear a tax case.  The biggest case regarding Tax Court jurisdiction during 2022 was obviously Boechler v. Commissioner, 142 S. Ct. 1493 (2022).  While the IRS and the Tax Court interpret the opinion narrowly, the full impact of Boechler remains to be seen.  This post will discuss several cases pending where the taxpayer argues that Boechler makes a difference.  In many ways this year end post is another in the series of post-Boechler updates provided by Carl Smith.  Earlier posts by Carl can be found here, here, here and here.


CDP Determination

While Boechler determined that the time period for filing a CDP petition in Tax Court is not a jurisdictional time period and that a petitioner filing late has the opportunity to demonstrate equitable tolling, we have argued consistently that equitable tolling cases will be few while the IRS failure to raise the timeliness of the petition could provide the more common path to move forward in the Tax Court case.  See the post here discussing an order in a case in which the IRS failed to raise timeliness allowing the petitioner to move forward with the Tax Court litigation.

In Boechler, the Supreme Court carefully looked at the language of IRC 6330 to determine if it contained a clear statement from Congress that the 30-day period within which to file a CDP petition in Tax Court was a jurisdictional requirement.  In finding that Congress had not made a clear statement, the Supreme Court also rejected several other arguments the IRS made.  The arguments not focused on the specific language of IRC 6330 become the most important parts of the decision as the Boechler decision applies to other bases for Tax Court jurisdiction.

The next issue for CDP, and also whistleblower, determination cases will involve cases setting out the Tax Court view of equitable tolling.  While there is a sizable body of case law on equitable tolling in other courts, the CDP cases will offer the Tax Court its chance to make equitable tolling decisions in the context of Tax Court filings.

Editorial Interlude Regarding Jurisdiction

At a recent conference a high-ranking member of Chief Counsel’s Office criticized the bringing of litigation regarding jurisdiction because it impedes administration of the tax laws.  I find this view totally off base.  Taxpayers like Ms. Castillo (scroll to middle of post for discussion), like the individuals described in Carl’s blog post here, and like many others we have encountered, are routinely denied access to Court due to circumstances that qualify for equitable tolling.  While audit reconsideration or offers in compromise provide some relief for these individuals, these remedies remain imperfect.  One client I represent with extremely sympathetic circumstances was recently denied audit reconsideration because the IRS unit considering the request simply did not understand the litigation giving rise to the wrongful imposition of tax on her as a 13-year-old victim of a heinous crime.  After Boechler, the IRS conceded Ms. Castillo’s case in full something it declined to do in the absence of a pathway to court where it would be embarrassed.  In my view it takes a lot of hubris to suggest that as the lawyer for clients who missed their chance to go to court for good reasons, I should not pursue avenues for relief for my clients that the Supreme Court has created because doing so might make administration of the laws more difficult for the IRS.

CDP Request

In addition to the 30-day deadline to file a petition in Tax Court following a CDP determination, the code provides a 30-day deadline at IRC 6330(a)(3)(B) within which to request a CDP hearing.  The question exists whether this time period creates a jurisdictional barrier to obtaining a CDP hearing and whether, even if it does not impose a jurisdictional barrier, whether the time period can be extended by equitable tolling.  The issue is currently pending in Organic Cannabis Foundation v. Commissioner, Dk. No. 381-22L before Judge Goeke.  This is a separate case from the Organic Cannabis deficiency case which the Ninth Circuit, decided pre-Boechler.  Carl Smith wrote about this case, and one other also assigned to Judge Goeke, here.  The IRS filed a motion to dismiss the Organic Cannabis case back on February 25, 2022, based on lack of jurisdiction because of the late filing.  After Boechler, it argued that Boechler had no impact on this 30 day period (a consistent theme of the IRS view of Boechler in any circumstance.)

Petitioner filed a response to the motion to dismiss arguing, inter alia, that Boechler applies to make this time frame non-jurisdictional and that equitable tolling applies.  On October 31, the IRS replied disagreeing that equitable tolling applies and making ambiguous statements regarding its application to the jurisdictional question:

Sections 6320(a)(3)(B) and 6330(a)(3)(B) of the Internal Revenue Code give taxpayers 30 days to request a CDP hearing. These time limits are fixed. Although they may not be jurisdictional—neither provision speaks to a court’s adjudicatory authority or plainly shows that they are imbued with jurisdictional consequences, see Boechler, P.C. v. Commissioner, 142 S. Ct. 1493, 1497 (2022) —the time limits are not malleable.

In an order dated November 14, 2022, the Tax Court finds that despite the IRS view the Boechler has no impact on this question Boechler does matter in this situation:

Respondent argues that Boechler does not apply. Boechler did not expressly address the 30-day period for requesting a CDP hearing. However, the Court believes that the concepts discussed therein may equally apply to the 30-day period for submitting a CDP hearing request. Accordingly, we will provide petitioner with an opportunity to respond to the arguments raised by respondent in his Response with respect to whether the doctrine of equitable tolling should apply to administrative hearing requests ….

The order directs petitioner to file by January 10, 2023:

a memorandum regarding the application of Boechler to the facts of this case and to address whether “determination” includes the result of an equivalent hearing when the doctrine of equitable tolling would have required respondent to apply the CDP hearing procedures for a timely administrative hearing request.

The Tax Clinic at the Legal Services Center of Harvard Law School will move for leave to file an amicus brief in support of petitioner’s arguments.  The IRS has notified the clinic of its objection to the filing of an amicus brief by the clinic.

 In a similar CDP request filing deadline case of All Is Well Homecare Service LLC, Docket No. 21210-19L, on December 15, 2022, Judge Gustafson ordered the parties to respond seriatim (IRS by Jan. 20. 2023; taxpayer by Feb. 17, 2023) “as to . . .  whether the deadline of section 6320(a)(3)(B) is subject to equitable tolling, and if so, . . .  the standards IRS Appeals should use in determining whether tolling applies in a given case and the standard by which the Tax Court should review such a determination by IRS Appeals.”


After the Boechler decision, the Tax Court took a hard look at its deficiency jurisdiction to decide if the Supreme Court’s decision in Boechler might impact its longstanding interpretation of the statutes granting it deficiency jurisdiction.  It promulgated an opinion in Hallmark Research Collective v. Commissioner, 159 T.C. No. 6 (11/29/22),  in which it decided 17-0 that the Boechler decision did not impact its prior interpretation of deficiency jurisdiction that the time period for filing a Tax Court petition is a jurisdictional time frame.  The decision in Hallmark follows in form its decision in Guralnik v. Commissioner, 146 T.C. 230 (2016) in which the Court convened in conference to decide, 17-0, that the time period for filing a CDP petition was a jurisdictional time period. 

As mentioned above, Carl Smith recently wrote an eight-part series of posts analyzing the Hallmark decision.  No further explanation of the decision is necessary here.  While awaiting the Hallmark decision the Tax Court suspended the dismissal of deficiency cases from the beginning of May until November 29.  It has since been issuing dismissals at a decent clip since the decision came out in order to clear out the backlog.  Anna Gooch, from the Center for Taxpayer Rights, Carl and I are reviewing the dismissals as they come out to identify appropriate candidates for appeal. 

The Culp v. Commissioner case, discussed in Carl’s earlier blog posts, is still pending in the 3d Circuit, possibly awaiting oral argument.  In the 11th Cir. in a non-precedential order in Allen v. Commissioner, the court granted a DOJ motion for summary affirmance attached here.  The order basically states that the 11th Circuit is bound by prior precedent in that circuit.  The court states that it does not think anything in Boechler requires the overruling of that precedent.  DOJ filed the same motion in the Culp case and the 3d Circuit denied the motion even though it had essentially the same old circuit precedent that exists in the 11th Circuit.  In both instances the precedent pre-dates the Supreme Court’s pivot in 2004 to require a clear statement in the absence of prior Supreme Court precedent in order for a time period to be a jurisdictional time period.  Any appeal of this issue will undoubtedly face a similar motion in circuits where prior precedent on Tax Court jurisdiction exists.  The only circuits with post-2004 precedent addressing this issue are the 7th and 9th Circuits.  The circuits which seem to have no prior precedential decisions on this issue, either before or after 2004, are the 1st and 4th Circuits.

Innocent Spouse

In his last update on post-Boechler litigation, Carl briefly mentioned Frutiger v. Commissioner, Dk. No. 31153-21, a case in which Judge Buch requested amicus briefs on behalf of the petitioner.  The Tax Clinic at the Legal Services Center wrote an amicus brief for the Center for Taxpayer Rights and filed it on November 18.  A copy of the brief is available here.  The IRS filed a response here.  I don’t mean to be pessimistic, but a 17-0 decision would not surprise me given the Hallmark outcome.

In addition to Frutiger, the issue is pending before Judge Buch in the case of Leach v. Commissioner, Dk. No. 3197-22 and before Special Trial Judge Landy in the case of Doyle v. Commissioner, Dk. No. 28458-21S.

Rule 13(c)

Despite the Boechler opinion clearly stating that the time period for filing a CDP petition is not a jurisdictional time period and the opinion of the DC Circuit in Myers v. Commissioner, 928 F.3d 1025, a controlling opinion under the Golsen rule because of appellate venue, stating the same thing with respect to whistleblower cases, the Tax Court clings to the inaccurate statement in its rules that time periods for filing petitions are jurisdictional.  Rules should provide procedures for handling cases in court and not inaccurate and therefore misleading statements of the law.  In ignoring prior calls to remove or amend this Rule, it stands as a sentinel to the Tax Court’s legacy view of jurisdiction.  Sorry to be snarky about this, but I cannot understand why this rule is still in existence in its current form.

Refund Cases

A series of cases in the Court of Federal Claims and the Federal Circuit have examined issues of jurisdiction in the refund context.  Much of the litigation on these cases occurred in 2021 but it continued into 2022.  You can find post discussing the issues raised here and, in a more favorable opinion, here.

A new tactic by the Department of Justice in knocking out financial disability cases, discussed here, raises issues of jurisdiction as pro se petitioners stumbling to find their way and usually impaired by the condition giving rise to the claim for financial disability continue to lose these cases and now lose them out of the gate if they did not follow the draconian procedures of Rev. Proc. 99-21.

Year in Review- Administrative Procedure Act

2022 was a big year for the Administrative Procedure Act and the IRS’s relationship. It evolved in mostly uncomfortable ways for the IRS as Courts have demonstrated they will use the APA to evaluate the IRS’s conduct. In response, Appeals has removed APA validity challenges from its hazards of litigation analysis (as covered here) which means we may see more APA-related decisions in the future.

The consequences can be harsh when the IRS violates the APA as the sixth and eleventh circuits, as well as the Tax Court have used violations to invalidate regulations and notices.

Where has the IRS gone wrong?

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The IRS violated the APA when it did not adequately respond to significant comments made during the notice and comment period in Hewitt (decided by the 11th Circuit at the end of 2021). This case may result in the IRS adopting the practice of responding to every comment as they have done for comments on recent foreign tax credit regulations. Hewitt was also significant because it created a split on this issue with the Sixth Circuit’s decision in Oakbrook for which the taxpayers have sought certiorari.

The IRS violated the APA when it ignored part of a statute that tied the computation of a Title 31 penalty to a specific date in Schwarzbaum (also, the 11th Circuit). The case was remanded to IRS for proper computation of the penalty. The APA does not provide a means for the Court to examine IRS’s conduct in the same way for IRC-based penalty cases. The case later involved the question of whether the Court should retain jurisdiction on remand since the issue is limited to the recalculation of the penalty rather than upholding or setting aside the agency action.

The IRS violated the APA when it did not provide a required notice and comment period in Mann Construction, so the Sixth Circuit invalidated the notice at issue. This case was also significant because it was binding on the district court decision in CIC Services.

The IRS violated the APA when it did not comply with the notice and comment provisions or establish that they were not required in Green Valley Investors, so the Tax Court invalidated the notice in that case. This case has further opened the door for other subregulatory guidance to be evaluated in accordance with the APA and lent some color to debate (here, here, here, here, here and here) over the existence and significance of interpretative regulations and guidance because the Court clarified that the notice was legislative, and not interpretative, because it imposed new rights or duties and changed the legal status of regulated parties.

A future APA challenge may be appropriate to resolve the contradiction between a notice and regulation that address the treatment of payments submitted with offers in compromise.

Not all APA-related decisions resulted in IRS losses; a district court found that the APA did not provide a basis to compel the IRS to provide access to appeals because the decision is solely within the IRS’s discretion. The APA protected the government’s sovereign immunity and forbade relief in Dillon. And going forward an argument may exist that APA challenges can be time barred, so it will be interesting to continue to track the relationship as we enter the new year.

2022 Year in Review- Taxpayer Rights

Procedurally Taxing serves many purposes, but importantly it is a forum to share ideas and advocate for change. In 2022, before the news emerged that the IRS would receive $80 billion in additional funding, we began to research, reimagine, and recommend improvements to allow the IRS and Tax Court to better serve taxpayers and protect and advance taxpayer rights.

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At the beginning of the year, we took stock in the way that things were being done in an effort suggest meaningful change.  A look at the number of cases settled by Counsel instead of Appeals inspired the idea that Appeals Officers might benefit from tracking the ultimate disposition of the cases they handle (here). A model utilized by the Veterans Court of Appeals was suggested to reduce the number of Tax Court cases that get dismissed each year (here).

Six months prior to the passage of the Inflation Reduction Act and the $80 billion dollar news, posts in February (here and here) examined how IRS could better utilize the resources it already has to better serve taxpayers and protect taxpayer rights, including implementing 2-D barcoding to increase the processing time of paper returns. PT also covered the IRS’s plans (here) to utilize technology to create a fully digital CAF, improve phone service, and use artificial intelligence to enhance the taxpayer experience.

There were suggestions about how the IRS and Tax Court can improve transparency and access, such as that OIC unit should make accepted offers available to review online and the Tax Court should make more documents available online while also providing a process for pro se taxpayers to safeguard information when necessary.

Other ideas to assist the Court, included that they reevaluate the requirement that the IRS file Answers in small tax cases, or adopt a more simplified model, or expect more (here, here and here) from Counsel’s Office when it comes to Answers. The Court could help taxpayers by consistently scheduling pre-trial conferences or requesting status reports related to settlement efforts early on to speed up the settlement process; invite amicus briefs in precedential opinions involving pro se taxpayers, and explore ways to reach dispositions more quickly.

Ideas for how the IRS could communicate more clearly and effectively with taxpayers included recommendations that Exam use virtual office audits; using plain language, tailored, and helpful audit notices; and assigning the audit to one specific person at the IRS. Stepping back to look at the big picture, the Center for Taxpayer Rights researched, workshopped, and reimagined the IRS’s role in the administration of social programs, as shared in posts here, here, here and here in August.

PT chronicled the frustrations caused by robocalling services and reported on findings and recommendations from TIGTA (that the IRS stop lien foreclosure on principal residences; and better publicize PPIAs) and the GAO (that the IRS modernize and improve customer service and adopt additional free file options).

State taxpayer rights have historically been ignored or just accepted for what they are. The Center for Taxpayer Rights developed a survey to begin examining them more closely, which revealed the significant need to protect such rights as posted about here and here.

Now that the year is coming to a close, we reflect on some of the improvements made: the IRS has begun to roll out new technology, including measures to prevent robocalling services from clogging up the phone lines; and the Tax Court is taking steps to protect taxpayers’ sensitive information in certain cases. I hope additional improvements come more rapidly as we enter the new year.

The Most Viewed Procedurally Taxing Posts of 2022

PT had a banner year-with, 279 blog posts to date, thousands of subscribers, and views pushing over the two million mark.

In today’s post, we offer the top-viewed posts of the past year. The list includes some long time favorites from years past as well as some posts that had their debut in 2022. 

We thank our loyal readers and contributors who have helped to make our blogging enjoyable.

Some changes to the blog are on the horizon; but what will continue is our commitment to providing quality analysis and context for developments in tax administration and tax procedure, a goal that began with our first post Welcome to Procedurally Taxing! almost ten years ago.

Here are the top posts of 2022.

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1. Biden Administration Floats Refundable Pet Tax Credit Idea to Boost Child Tax Credit

The number one post this year originally appeared on April 1, 2021, and reflects my real talent: a frustrated wannabe Onion writer. The post had a strong surge this past month, causing my colleagues to request that I add a more explicit disclaimer.

2. Requesting an Offset Bypass Refund and Tracing Offsets to Non-IRS Sources

The all time most viewed post on PT, Keith’s 2015 post is a crucial source of information for taxpayers looking to receive a refund and sidestep the IRS’s offset powers.

3.  The Facebook Pixel and Unauthorized Use and Disclosure of Tax Return and Tax Return Information

The most viewed post that had its debut in 2022; here Nina Olson discusses a Markup report detailing the presence of a Facebook (or Meta) pixel on various tax software websites that discloses taxpayer identity and financial information, gathered in the course of preparing and filing tax returns online, to Facebook.  

4. 11th Circuit Affirms That Anti-Injunction Act Prevents Taxpayer Seeking Access to Appeals

In this post I discuss Hancock County Land Acquisitions v US, where the taxpayer brought an action alleging that the IRS’s failure to refer its case to the IRS’s Independent Office of Appeals violated the Taxpayer First Act  The Eleventh Circuit, in an unpublished opinion, held that the Anti-Injunction Act barred the lawsuit.

5. Discharging Student Loan Debt

In this post from February, Keith discusses  Wheat v. Great Lakes Higher Education Corp, and the Department of Education’s unsuccessful efforts to get  a bankruptcy court to reconsider discharge of student debt.

6. “The Dark Net? We OWN the Dark Net.” -Charles Rettig, IRS Commissioner, ABA Tax Section Meeting

In this guest post, Karen Lapekas reflects on former Commissioner Rettig’s comments he gave at the Fall ABA Tax Section meeting in Dallas. The post also has a thoughtful introduction from Nina Olson.

7. How Did We Get Here? A New Series …

In the first of a series, Nina Olson offers her views on the state of the IRS, and a way forward.   The series offers thoughtful takes on correspondence exams and processing of returns.

How Did We Get Here? Correspondence Exams and the Erosion of Fundamental Taxpayer Rights – Part 1

 How Did We Get Here? Correspondence Exams and the Erosion of Fundamental Taxpayer Rights – Part 2

How Did We Get Here? 2-D Barcoding and the Paper Return Backlog – A Missed Opportunity

8. Making Additional Work for Yourself and Others

In this post, Keith discusses IRS receiving paper returns and checks, yet with its processing woes IRS was sending correspondence that reflected an unawareness as to whether the agency received a return. This added more work and stress for taxpayers and practitioners, and ultimately the IRS too.

9. The IRS Strikes Back Against Robocalls

In this post, the third post of the past year that discussed enQ, a private for pay service that allows subscribers to skip the phone line and get access to IRS, Keith discussed IRS efforts to thwart its use.

10. 2021 Tax Court Exam for Nonattorneys

In this guest post, Sherrill L Trovato provides detailed information about the examination the Tax Court administers to non-attorneys who practice before it.

The Taxpayer First Act’s Legacy: What Comes Next

For the last few years, I’ve asked my students whether they’ve heard of the “Tax Cuts and Jobs Act” before. Many raise their hand. Because I’m insufferable, my first order of business is to tell them that there is really no such thing as the “Tax Cuts and Jobs Act” (or TCJA). What they refer to as the TCJA could only pass under budget reconciliation, thus eliminating the superfluous provision of a “short title.” This pedantic foray serves the dual roles of proving my academic bona fides and of alienating my students.

More seriously, when I ask students about their knowledge of the TCJA it is really to make a point for the next question: how many of those students have heard of the “Taxpayer First Act.” I’d note that to date I have yet to meet a student that had heard of the bipartisan, magnanimously (and actually) titled “Taxpayer First Act.

There are a few things I usually emphasize from this little exercise:

(1) that we are going to be learning about federal tax procedure, which is not much covered in the “federal income tax” courses,

(2) that “substantive” tax bills like TCJA tend to be highly partisan whereas procedural or administrative bills like the TFA are not (note that RRA 98 also had bipartisan support), and

(3) that students may be forgiven for not knowing much about the TFA because, frankly, it didn’t really end up making that many big changes that I can think of.

Only perhaps in the future I may have to rethink that final point. In Section 1101 of the TFA Congress required the IRS to provide a “Comprehensive customer service strategy.” That report is here. And for you, loyal reader, I have waded through the pages of MBA-corporate speak to highlight some actual changes that may be coming down the road…

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In this post I will be focusing on the IRS’s “Taxpayer Experience Strategy” as detailed in their report to Congress. The IRS’s approach was to “reimagin[e] the taxpayer experience across six areas of focus.” Those six areas are:

  1. expanded digital services,
  2. seamless experience,
  3. proactive outreach and education,
  4. community of partners,
  5. focused strategies for reaching underserved communities, and
  6. enterprise data management and advanced analytics.

Describing this further, the report provides “[t]his strategy is not a series of discrete approaches, but rather integrated strategies that build on each other to create the best holistic experience for the greatest number of taxpayers.”

To me, this reads like a lot of buzzwords beloved by business schools but largely meaningless to tax practitioners. So I’m going to abridge much of the report and try to provide a list of specifics and highlights that practitioners should be aware of. Here is a list of what I found to be the most interesting goals and projects:

Expanded Tax Professional Accounts

There are a range of different online account functionalities that the IRS appears to be working on as part of the Taxpayer Experience Strategy. Some are fairly simple and greeted with a “how has it taken this long?” sigh. For example, allowing e-signatures on Form 2848, and expanding digital signatures more broadly. Others are vague and call to mind some sort of IRS Frequent Flyer Rewards program. (One goal is “Practitioner Premium Access.”)

Overall, however, the goal appears to be digitizing the power of attorney process from cradle-to-grave. Indeed, one bullet point includes the phrase “Fully Digital CAF.” This, in turn, should allow practitioners to more quickly access client account information.

Issues with processing Form 2848 are a cause of near constant concern in the tax world. Fixing POA problems is, in my opinion, one of the easier ways to increase downstream efficiencies for practitioners, the IRS, and taxpayers alike. Dare to dream of a future world in which no one would think to read or comment on a post about Form 2848 processing issues…

“Omni-Channel” Communication

Basically, the IRS wants to do a better job at the front-end of steering (“channeling”) people based on their personal preferences. For example, if you hate waiting on the phone the IRS seeks to introduce expanded automated callback. If you don’t mind waiting, but just want to have a better sense of how long you’re going to wait, the IRS is proposing better “wait time transparency.”

To some degree, these are things the IRS already does (“we estimate your wait time to be between 15 and 30 minutes”). Perhaps they will just start doing it better (“we estimate your wait time to be 12 minutes and 27 seconds”).

One proposal that did appear new is that the IRS employee is supposed to “remain engaged” with the taxpayer during a call transfer to ensure that the transfer actually goes through. So when you spend 30 minutes waiting and then have an IRS employee inform you “I can’t help, let me transfer you to collections,” the transfer is more likely to actually happen.

Hopefully, however, fewer of those transfers will be necessary to begin with. First, as part of the “concierge navigation support,” the IRS is looking to better ensure that calls go to the right subject-matter expert picking up. Second, and to me vastly more important, the IRS is looking to significantly upgrade the functionality of its “Enterprise Case Management” (ECM) system so that IRS employees have a “360-degree view” of taxpayer accounts. Presumably, in non-MBA speak, this will mean that IRS employees can say with better certainty if/when a letter was sent to a taxpayer when you call.

The Rise of AI… For Answering Tax Questions

There are three new artificial intelligence (AI) features the IRS is looking to showcase: (1) AI powered web-chat, (2) AI powered appointments, and (3) AI tax question assistance for IRS employees. What will this look like?

With regards to the first AI feature, we’ll likely begin seeing the “Can I Help You?” pop-up boxes (“chat-bots”) on IRS webpages that are already ubiquitous as customer-service stand-ins elsewhere. Second, if the chat bots don’t fix the problem, they can help schedule an appointment with an actual human that might be able to. Lastly, when you get an actual human at the IRS, that human being will have an “AI-powered” assistant.

More Translated Forms!

Last but not least, we shift to the lower-tech world of text. The IRS is planning on translating Form 1040 into Chinese, Korean, Russian and Vietnamese (note the IRS has already translated to Spanish, as noted here). But beyond Form 1040, the IRS is also planning on translating Pub 17 and (eventually) notices that are sent to taxpayers.

Steps in the right direction. But will it make a significant difference in the “taxpayer experience?” Are there more fundamental changes that need to happen? What would an improved taxpayer experience really look like? My further thoughts in a future post…

“Empowering” Taxpayers: Reflections on the IRS Strategic Plan Annual Review

I’ll forgive you if the IRS’s report on “Putting Taxpayers First” has fallen through the cracks of your reading list. The National Taxpayer Advocate’s report (recently covered here and here), the onset of the filing season, and the raft of legislative tax changes over the last year have left me feeling somewhat behind in my tax knowledge. And I get the feeling I’m not alone in that sentiment.

Yes, times are busy for us in the tax world. But that doesn’t mean we shouldn’t take a moment from our busy schedules to reflect on our larger goals. For the IRS, one way this is done is through their Strategic Plan Annual Review and mapping their progress to the myriad goals therein. In this post I’ll take a look at the first of those ten goals: To “empower and enable all taxpayers to meet their tax obligations.”

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A first step in mapping your progress towards a goal may be to clearly define what that goal really is. For example, what does it mean (or look like) to “empower and enable all taxpayers to meet their tax obligations?” I found the report a bit lacking on defining the goal, and even in discussing if the IRS has met it. Instead, the report mostly just discussed what 2021 looked like for taxpayers, and let you, the reader, draw your own conclusions about whether that meant the IRS was “empowering and enabling” taxpayers.

This reader would say that, towards the goal of empowering taxpayers, the IRS had some wins but also some pretty big losses (I will call them “obstacles”) that likely outstrip the wins. I’ll discuss both in turn.

The Wins:

It is hard for a taxpayer to be “empowered” to meet their tax obligations if they don’t understand what those tax obligations are. One way this might happen is if the taxpayer doesn’t speak English. On that front (making tax resources accessible to ESL taxpayers) the IRS deserves kudos.

For one, it was the first year the IRS made Form 1040 available in Spanish. Admittedly, I thought this already was the case but apparently that was only for certain Puerto Rico returns.

But an even bigger (and I think more consequential) change made by the IRS was the creation of “Schedule LEP.” Filing this with the IRS allows the taxpayer to choose from among 20 different languages to receive written communications from the IRS in. For those working with immigrant communities in particular, I’d be sure to take note of this. I commend the IRS for making it available. The next step forward, however, would be for the IRS to do more than just allow taxpayers to make their language preference known to the IRS… It would be to actually communicate with the taxpayer in their preferred language. According to this TIGTA report that is not yet happening. Instead, all Schedule LEP does at the moment is put a notation on the taxpayer’s account for their preferred language. One hopes the actually translated letters will be coming soon.

Another win for the IRS was the popularity of IRS.gov. Fiscal year 2021 saw 11.5 billion page views, which was a 24% increase from 2020. There were also 16.8 million people using the IRS2Go app at least once in FY 2021.

Maybe this is only “kind-of” a win for empowering taxpayers, since it is entirely possible that people had to rely on the website largely because they couldn’t get through on the phone (more on that in a bit). But like it or not, the IRS is going to have to rely on a greater online presence and online capabilities as a medium for connecting with taxpayers. Further, the IRS is statutorily required to “improve the digital experience for government customers” under something called the “21st Century IDEA Act” (which I just learned of and will now reference to my students as if it is common knowledge). There are some definite caveats to this “win,” but for now let’s chalk it up as “greater online presence = progress towards empowering taxpayers.”

Lastly, and really more as a matter of statistics rather than evidence of “empowering taxpayers,” the IRS notes that more taxpayers received more good news (i.e. refunds) last filing season. The refunds were both larger and more frequent than the prior year: an 8.6% increase in the number of refunds issued over 2019 returns, and a 2% increase in the dollar refund amount.

The Obstacles:

Let’s start with the obvious. A lot of people wanted to contact the IRS and a lot of people weren’t able to. I’ll list as “obstacles” the sheer demand of taxpayers as well as actions of Congress in late-season changes to the tax code. It is clear that these were impediments to the IRS “empowering” taxpayers with information on their filing obligations.

The report notes that “individual taxpayer telephone demand” (the report isn’t clear on exactly what this entails) was 24 million, a 456% increase over the prior year. That’s a pretty big number. But the number I really found jaw-dropping was this: 2,000%. As in, there was a 2,000% increase in disconnects over the prior year. See page 19 of the report. I note the specific page because this statistic was presented in a way that made it difficult to parse exactly what sort of “disconnects” were being referred to. In any event it is not a statistic that suggests the IRS is “empowering and enabling taxpayers to meet their obligations.”

Another issue is that more people than ever are filing returns. Makes sense since more people than ever have a filing requirement or are eligible for refunds when they weren’t before. But still there are some numbers I can’t quite make sense of. In particular, I’m hoping someone can explain why the IRS would see a 17.7% increase in the number of business returns filed from CY 2021 over CY 2020. One thought I have is that this could be a product of the “start-up boom” and that 2020 apparently saw more than 4.4. million new businesses created. But I would have thought the vast majority of those would be Schedule C filers… In any event, the jump in business returns has created a ton of additional work for an understaffed IRS and is greatly exacerbated by the fact that a huge number of those returns are on paper (20.7 million of the approximately 53 million filed).

A final obstacle worth mentioning is inherent to tax: it just doesn’t translate to other languages well. As the report notes:

Automated translation of languages remains a significant challenge, even for the most sophisticated software. The level of complexity of tax terms and the need for surrounding context means that automated translation tools need to be carefully evaluated to ensure that translations reach a consistently acceptable level of accuracy for users of the translated content. This portion of the project will be ongoing for the next several years.

It’s hard work empowering taxpayers. It’s even harder when you’re trying to empower them in a different language. But my concern has less to do with translating complex English to other languages. Rather, I’m worried about the first step of translating technical tax provisions to plain English -or any language other than tax, really.

The pandemic has augmented my belief that the more people try to self-research complex issues online, the more problems arise. I cynically believe that this is unavoidable until or unless the tax code is drastically simplified -which I have no real (or politically palatable) recommendations on how to achieve. I’m sure there is value to the IRS online resources (like the “Interactive Tax Assistant”). But there are limitations and on efforts to put in simple language things that are inherently complicated -the concept of “Simplexity” comes to mind. 

My Progress Report: Big Picture Thoughts

I’m not here to pile on the IRS. In fact, until the IRS receives some modicum of the funding it needs I am not sure that I really can criticize its customer service. That the IRS is woefully underfunded is perhaps the worst-kept secret in the tax world. The Congressional Budget Office has reported on it. The National Taxpayer Advocate has reported on it. Even HBO (via John Oliver) has reported on it… way back in 2015. And it has only gotten worse.

Without a doubt, there are areas that the IRS is performing sub-optimally even given their funding problems. But for now, I’m not going to focus on them. I think it is more important to keep a focus on the elephant in the room: the IRS had fewer permanent workers in 2021 than it did in 2010.

Think about that.

Among other things, in 2010 the IRS didn’t have to worry about (1) the Premium Tax Credit, (2) the Advanced Child Tax Credit, or (3) the Recovery Rebate Credits. Each of these credits vastly expands the population of individuals that now interact with the IRS. Each of these credits also becomes very confusing very quickly -particularly with their “reconciliation” processes. Further, in my unscientific opinion, each of these credits tend to implicate demographics that are most likely to need customer service (or “empowering”) by the IRS. This is going to require a serious reimagining of the IRS and its priorities if it is a road we continue down.

Increasingly, I conceive of our Internal Revenue Code as an unholy Frankenstein (or “Frankenstein’s Monster,” to the literary buffs/pretentious readers out there). There is some vestige of the original structure and purpose, but over the years we have tacked on appendage after appendage to the point that it really isn’t one “thing” anymore. And we should probably stop pretending that it is.

Scholars sometimes talk about the historical transition of American taxation from “Class Tax” to “Mass Tax” during World War II. We are living in something akin to a third phase now. It isn’t that more people have to pay federal income taxes (“Mass Tax II”). It’s that more people than ever have to file federal income tax returns. (I tried to find something that rhymes with either “Class/Mass” or “Tax” to cleverly anoint this third phase. I failed.)

The stated goal of the IRS was to “empower and enable all taxpayers to meet their tax obligations.” I think that goal, in itself, reflects part of the problem. In this third phase, I would bet so many of the phone calls the IRS gets have nothing to do with trying to “meet their tax obligations.” They have to do with receiving their tax benefits. The IRS (and perhaps Congress) needs to begin conceptually separating “delivering tax benefits” as distinct from “meeting tax obligations.” See Nina Olson’s post, walking through some of her advocacy efforts on that sort of reorganization.

Frankly, I have some reservations about the choice to go down that road with the tax code. But at this point one must acknowledge that we’ve already taken so many steps down it to begin with.

The Top Ten Procedurally Taxing Posts of 2021

As 2021 comes to a close, Procedurally Taxing has been around for over eight years.  When we kicked it off in 2013 with Welcome to Procedurally Taxing, we did not know precisely how the blog would evolve. With over 3,400 subscribers and closing in on two million views, the blog has exceeded our expectations.  Stay tuned, as we will be announcing some changes and new features in the new year.

What were the most viewed posts of the year?


Not surprisingly issues relating to economic impact payments and the receipt of refunds when there is a hardship topped the list. Those posts reflect the needs of not only practitioners but also taxpayers who at times are desperate for information concerning access to needed refunds. To that end, the top post of the year was Keith’s post, Requesting an Offset Bypass Refund and Tracing Offsets to Non-IRS Sources. That post is our all time reigning champ, having generated over 93,000 views since its 2015 posting.

Also on the list was my favorite post of the year, Biden Administration Floats Refundable Pet Tax Credit Idea to Boost Child Tax Credit. With the Build Back Better legislation currently stalled, we will have to wait until 2022 to see if Congress will enact that piece of legislation.

Here is the complete top ten list, including posts that were published in prior years:

  1. Requesting an Offset Bypass Refund and Tracing Offsets to Non-IRS Sources (Keith Fogg)
  2. Offset of Injured Spouse Stimulus Payment (Keith Fogg)
  3. How Will I Get My CARES Stimulus Payment if my Preparer Paid My Refund? (Connor Moran, guest post)
  4. Injured Spouse and Economic Impact Payments (Caleb Smith)
  5. Lost or Destroyed EIP Debit Card (Keith Fogg)
  6. Senators Question Commissioner About Company Offering Fee-Based Access to IRS Phone Lines (Leslie Book)
  7. Offsets in a Time of Coronavirus (Keith Fogg)
  8. Refunds, Offsets & Coronavirus Tax Relief (Barbara Heggie, guest post)
  9. My IRS Wishlist for 2021 – Part 1: The mail and return processing backlog (Nina Olson)
  10. Biden Administration Floats Refundable Pet Tax Credit Idea to Boost Child Tax Credit (Leslie Book)

What about for the posts that were published in 2021? Here are the top ten most viewed posts from this year.

  1. Senators Question Commissioner About Company Offering Fee-Based Access to IRS Phone Lines (Leslie Book)
  2. My IRS Wishlist for 2021 – Part 1: The mail and return processing backlog (Nina Olson)
  3. Biden Administration Floats Refundable Pet Tax Credit Idea to Boost Child Tax Credit (Leslie Book)
  4. The Current State of Taxpayer Service (or Lack Thereof) at the IRS (Nina Olson)
  5. Tax Court Announcement re Premature Assessments (Keith Fogg)
  6. Thinking Out Loud About the Advanced Child Tax Credit (Part 1) (Nina Olson)
  7. Can the IRS Ever Collect on Erroneous EIPs? (Caleb Smith)
  8. Congress to Consign IRC 6751(b) To The Graev? (Keith Fogg)
  9. Calculating the Collection Statute of Limitations (Keith Fogg)
  10. Major Change to Offer in Compromise Policy (Keith Fogg)

We wish our readers a happy and healthy new year.