Abstract
This article examines the Rule of Law ideal in the context of federal tax law. Constraining government discretion is a core concern of the Rule of Law. Rules have traditionally played an important role in providing that constraint. Federal tax law is heavily oriented toward rules, but it also tolerates considerable discretionary authority. The Commissioner's discretion to determine clear reflection of income under section 446(b) presents particular concerns for the Rule of Law ideal, especially when it is asserted against taxpayers as a basis for dynamic rule-revision.
The article is critical of the extent of the Commissioner's discretion, and it explores alternatives for constraining it. Structural and purposive principles fail to provide an adequate basis for constraint. Judicial approaches have failed to provide adequate objective benchmarks for meaningful constraint. Discretion may be an expedient remedy to correct perceived "abuse" or "distortion", but it compromises Rule of Law values, including predictability and equal treatment under the law. It also compromises efficient tax administration by imposing administrative costs on taxpayers.
The article suggests that efforts to restore Rule of Law values should begin with eliminating the Commissioner's authority to challenge methods that conform to the requirements of the Code and regulations. When existing rules fail to address particular accounting methods, compliance with generally accepted accounting principles may provide a basis for constraint. If Congress or the Treasury determines the need for a different approach, it should be accomplished through rulemaking, not the Commissioner's discretion.