The Tax Section s Role as an Advocate for Equal Access to Justice: A Personal History

Transcription

1 ADVOCATE FOR EQUAL ACCESS TO JUSTICE 427 The Tax Section s Role as an Advocate for Equal Access to Justice: A Personal History NINA E. OLSON * I have been asked to write about the Tax Section s role as an advocate for a fair and just tax system. In my position as the National Taxpayer Advocate, I have seen firsthand how members of the Tax Section, individually and collectively, step away from their clients parochial interests to view tax law and tax administration from a broader perspective, namely, what is in the best interests of the tax system as a whole. I believe that both my office and the Service have been the beneficiaries of the experience and wisdom of the Section, through round-table discussions, comments on proposed published guidance, member surveys, task force papers, conferences, and committee programs. I could write, in detail, about how each of these advocacy efforts benefits the tax system, but finding myself in a reflective mood, I want to write about how the Section, through its individual members and its formal support, fostered an environment so that I could do my life s work. For without the support of the Tax Section and its members, I would not be where I am today, nor would I have accomplished what I have. By its embrace of the concept of justice for all taxpayers, the Section not only confirmed the legitimacy of my fledgling advocacy efforts but also opened the doors for action beyond my highest expectations. As a newly-minted lawyer in 1991, I already had 16 years of experience behind me working with taxpayers as a return preparer and accountant. I knew firsthand the problems that low- and middle-income taxpayers faced when they were drawn into disputes with the Service, and I knew these taxpayers often conceded tax debts they did not owe, simply because they couldn t navigate the system themselves nor could they afford the cost of representation. When my state bar asked me to do pro bono work, I found there was no vehicle through which I could provide services in the area of my expertise tax. Around the same time, Tax Court Judge Carolyn Parr assured me there was a definite need for such assistance. So, I created The Community Tax Law Project (CTLP), the first independent Low Income Taxpayer Clinic (LITC) in the country. Let me emphasize here that when starting an endeavor there is a lot to be said for being clueless on the one hand and fearless on the other. Both states * National Taxpayer Advocate, 2001 to present; Executive Director, The Community Tax Law Project, ; Bryn Mawr College, B.A., 1976; North Carolina Central University, J.D., 1991; Georgetown University Law Center, LL.M. in Taxation, This Article represents the author s personal views and not the views of the Service or the United States. 427

2 428 SECTION OF TAXATION of mind enabled me to plow ahead where wiser men and women would have had second thoughts. But sheer determination ultimately would flame out. The oxygen I needed to keep going came from the Section s reception and embrace of the idea of equal access to justice. Let me give just a few examples. Early in 1993, I reached out to Keith Fogg, who was then District Counsel of the Service s Virginia West Virginia district, to discuss the role of CTLP in representing taxpayers before the U.S. Tax Court. It was a cold call Keith, who is now the director of the Villanova LITC and this year s recipient of the Section s pro bono award, didn t know me from Eve. But we spoke for an hour and a half, and the fact that he took me seriously encouraged me to continue. Keith arranged for me to meet with the entire leadership of the Service s Virginia West Virginia district, and we quickly reached an agreement that the district would include stuffer letters about CTLP in 30-day letters and put up a poster about CTLP in the Service walk-in site in Richmond, Virginia. Flushed with success, I continued my cold calling. I wrote to the Tax Court requesting that it include stuffer letters about CTLP in its docket notices, similar to what it was doing with the few academic LITCs in existence. I also wrote to the IRS Chief of Appeals requesting stuffer letters in 30-day letters issued to Virginia taxpayers, as authorized for student tax clinics under the Internal Revenue Manual in effect at that time. In both instances, I was informed, in writing, that it would not be in the best interests of either the Tax Court or the Service for it to inform taxpayers about a nonprofit organization that would make referrals to private attorneys, albeit acting pro bono. This response did not seem right to me, and being clueless, I acted on my sense of injustice. Jim Bitonti, CTLP s Board President (the result of another cold call), had just finished his term as chair of the Section s Administrative Practice Committee and was serving on the Special Projects Committee. At a meeting of the Special Projects Committee, Jim raised the Tax Court and Appeals position about stuffer letters. Jim Merritt, the chair of the committee, and Judge Tannenwald led the charge, soon joined by Chief Special Trial Judge Peter Panuthos, and before I knew it, the Tax Court had reversed itself; CTLP stuffer letters went out in docket notices to Virginia taxpayers, and Keith and I worked with the Tax Court judges at each Virginia calendar call to ensure that pro se taxpayers could at the very least consult with CTLP volunteers before trial. IRS Appeals came around much more slowly but ultimately CTLP s stuffer letters were included in 30-day letters as well. In the midst of all this, I cold called Jerry Borison, who was the chair of the Tax Section s ABA Low Income Taxpayer Committee. The upshot of that call was that Jerry asked me to be a vice-chair of the committee. In the meantime, Judge Parr had suggested I meet with Janet Spragens, a professor at American University Washington College of Law, who directed the tax clinic there. Janet bemoaned the loss of Department of Education funding for clinical legal education, and of course I was bemoaning the lack of any funding for independent nonprofit LITCs (of which there was only one at that point, but

3 ADVOCATE FOR EQUAL ACCESS TO JUSTICE 429 I dreamed of a universe of LITCs). Our deep friendship was founded on a shared vision of advocating for a fair and just tax system. Janet s rolodex was extensive, and I shamelessly utilized it (again, it helps to be clueless). I called contacts of hers to recruit volunteer lawyers. I also called contacts of hers to recruit presenters at the continuing education programs CTLP was sponsoring. And one day in 1997, I called Armando Gomez, a former student of Janet s who was Counsel to the National Commission on Restructuring the Internal Revenue Service and is now Chair of the Tax Section. Janet had already testified before the Commission, and after I bent Armando s ear for a half hour, he asked me to write the Commission to second her testimony about the role of LITCs and the need for funding. The Commission s report ultimately included just such a recommendation. Another of my cold calls was to Donna Steele Flynn, then the Chief of Staff to the Oversight Subcommittee of the House Committee on Ways and Means. Amazingly, she picked up the phone, and 45 minutes later we were still talking about the problems that low-income taxpayers face in their dealings with the Service. The next thing I knew I received an invitation to appear as a witness before the Subcommittee in September I was pleased to appear at that hearing as the other Ms. Olson because the Tax Section was represented there by Pam Olson, who was then its Chair. In its testimony, the Tax Section officially supported the codification of the authority for the Service to fund LITCs. At that hearing, and at a later one before the Senate Finance Committee in February 1998, the foundation was laid for section 7526, which provides for matching grants for qualified Low Income Taxpayer Clinics. The Section s support for the program did not stop there, however. As an independent nonprofit LITC, CTLP had to come up with funds to match the Service s grant. By this time I had approached Stef Tucker, then chair of the Tax Section and this year s recipient of the Section s Distinguished Service Award, as well as a former professor of mine, with a proposal: I wanted the Tax Section to fund one-quarter of a two-year fellowship at CTLP, administered by the National Legal Aid and Defender Association and funded in part by the Open Society Institute. The recipient would be a bilingual lawyer who would represent lowincome Spanish-speaking taxpayers in their disputes before the Service. Stef championed this idea, the Section ultimately agreed, and Anita Soucy became the first attorney at an LITC to focus on English as a Second Language (ESL) taxpayers. The Section s involvement in this fellowship paved the way for what are now aptly titled Christine A. Brunswick Public Service Fellowships. 1 The Internal Revenue Service Restructuring and Reform Act of 1998 (RRA 98) also created the position of the National Taxpayer Advocate (NTA). I had just come off my stint as chair of the Section s Low Income Taxpayer 1 For a discussion of the Christine A. Brunswick Public Service Fellowship program, see Anna C. Tavis, Tax and Social Justice: Perspectives of a Brunswick Public Service Fellow, 68 Tax Law. 455 (2015).

4 430 SECTION OF TAXATION Committee and was quietly sitting in my CTLP office one day in 2000 when Armando Gomez called me and informed me that he was submitting my name for the recently vacated NTA position. I asked him not to, but Armando just ignored me. The rest is history (not really). The road to my selection and acceptance of the position led me to discussions with many Section members about the role of the National Taxpayer Advocate and how to be an effective advocate on behalf of taxpayers within the Service. These discussions involved not only former Treasury officials like Chris Rizek (who spent hours talking through the challenges with me) but also former IRS Commissioners, including Don Alexander, Sheldon Cohen, Mort Caplin, and Larry Gibbs. I was astonished and humbled by the thoughtfulness and openness these very busy people showed me. It almost made me believe I could do the job. There were three people, however, who brought me around to accepting the position of National Taxpayer Advocate Janet Spragens, Pam Olson, and Christine Brunswick, the executive director of the Tax Section. Janet just made it clear I had no choice but to accept; Pam was about to be nominated as the Treasury Assistant Secretary for Tax Policy, so I knew I would have a willing partner in Treasury on the issues of procedural due process, access to justice, and not coincidentally, simplification of the Code. But it was Chris Brunswick who really closed the deal. Chris was the moral conscience of the Tax Section. It was she who nudged the Section as an entity toward its embrace of equal access to justice. It was she, behind the scenes, who championed the Low Income Taxpayer Committee and ensured that it was supported and recognized as a substantive committee. And it was she who helped me work through my qualms and fears of being co-opted by the system and helped me see that I could retain my independent perspective by maintaining strong relationships with external stakeholders. And it is those relationships that have enabled me to do the job to this day. There is not a day that goes by without my reviewing a comment by the Section, or receiving an from a Section committee, or seeing a post by a Section member on various listservs, or reading a law review or Tax Notes article by a Section member, or reading Section testimony to Congress. I see the work of Section members at LITCs, and I hear the concerns of Section members at their three yearly meetings. I have the privilege of attending the Section s annual courtesy calls with the Service and have helped organize roundtable discussions with senior Service leadership on issues as diverse as innocent spouse relief and Individual Taxpayer Identification Numbers. I recall vividly the day that the representatives of the Tax Section came to meet with the Commissioner in the immediate aftermath of 9/11 to discuss the impact of that destruction on taxpayers not just in the immediate New York vicinity but all over the world. In each of these venues, I have seen that the Section s influence has been profound and for the betterment of the tax system.

5 ADVOCATE FOR EQUAL ACCESS TO JUSTICE 431 I write about my circuitous professional route because it is important for people to recognize that good ideas, such as access to justice and procedural fairness for all taxpayers, have a power of their own. They have the stickiness that Malcolm Gladwell discusses in his book, The Tipping Point. And yes, these ideas need good carriers like Janet Spragens and me, but a good idea, no matter how well promoted, needs a good host. And that is where the Tax Section comes in. Through its embrace of the basic concept and its organizational, financial, and most importantly intellectual support, the Section has brought about a revolution in tax administration. It has helped ensure that no taxpayer need accept a result in a dispute with the Service solely because he or she cannot afford representation. It has helped make real the promise in the recently adopted Taxpayer Bill of Rights that taxpayers have the right to retain representation. Indeed, without the Tax Section s commitment and advocacy, that right would be an empty promise. I am personally and professionally indebted to the Tax Section and proud to be a member.