In past writings and in an upcoming article by Professor Bryan Camp, The Problem of Adversarial Process in the Administrative State, 83 IND. L. J. ### (2008), Professor Camp criticizes the procedural protections Congress added in the tax collection process, noting the limitations of adversary proceedings in the IRS’s tax collection process. In particular, Professor Camp strongly criticizes the collection due process (CDP) rights that were part of the landmark IRS Restructuring and Reform Act of 1998. Given the size of the tax gap, and likely increasing calls for the IRS to do a better job in reducing that tax gap in light of budget deficits, the question of considering the appropriate use of agency resources is particularly relevant.
While much of Professor Camp’s argument is persuasive, it comes up short both as a descriptive and prescriptive model. Unquestionably, the IRS’s collection process borrows heavily from inquisitorial models of agency action, and given the information asymmetry between the IRS and taxpayers themselves, the agency faces heavy obstacles to consider whether delinquent taxpayers are shirking their responsibilities or are genuinely facing financial hardship and are unable to pay what is due and assessed. But those insights are not sufficient to explain the dynamics of the entire collection process, which is best thought of as involving a range of interests meriting differing levels of procedural protection and personal IRS intervention. In this response, I situate IRS collection determinations within the broader landscape of administrative law, highlight the principles that administrative law scholars have emphasized in considering what is fair agency practice, and apply those principles to the collection context. I conclude that Professor Camp rightfully highlights some of CDP’s problems, but misses its benefits and thus fails in prescribing the repeal of CDP. Yet, Professor Camp’s article is a significant achievement for those considering tax collection. Its targeting of CDP’s shortfalls highlights some of the problems of the legislative process, and allows us to consider how Congress and the IRS can improve collection rights and protect individual interests without sacrificing essential efficiency concerns associated with collecting taxes.
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