The Taxpayer Bill of Rights (TBOR) passed by Congress in 2016 has started to draw attention from tax litigators and others seeking to use the provisions of the legislation to obtain results that they might not otherwise achieve. Facebook brought the first substantial litigation seeking to involve TBOR as a basis for relief Facebook’s effort to rely on TBOR failed. Several other cases now also seek relief based in whole or in part on TBOR. This Article examines several pending cases, each of which relies on TBOR for a different reason, in order to discuss situations in which TBOR may assist litigants in achieving the desired result or will likely provide no benefit. In addition to discussion of pending cases in which taxpayers have asserted TBOR as a basis for relief, this Article examines the effect that TBOR might have generally in determining the outcome of an examination or collection action. Finally, this Article looks at the potential impact of TBOR in six specific situations: training, litigation, administration (internal policy decisionmaking), regulatory and subregulatory guidance, attorney’s fees, and ancillary matters involving tax controversy not covered by the Internal Revenue Code.
T. Keith Fogg is Clinical Professor of Law, Harvard Law School.