Georgetown University Law Center Scholarship @ GEORGETOWN LAW 2009 Tax Penalties and Tax Compliance Michael Doran
[email protected] This paper can be downloaded free of charge from: https://scholarship.law.georgetown.edu/facpub/915 http://ssrn.com/abstract=1314401 46 Harv. J. on Legis. 111-161 (2009) This open-access article is brought to you by the Georgetown Law Library. Posted with permission of the author. Follow this and additional works at: https://scholarship.law.georgetown.edu/facpub Part of the Taxation-Federal Commons, and the Tax Law Commons ARTICLE TAX PENALTIES AND TAX COMPLIANCE MICHAEL D ORAN* This Article examines the relationship between tax penalties and tax compliance. Conventional accounts, drawing from deterrence theory and norms theory, as- sume that the relationship is purely instrumental—that the function of tax penal- ties is solely to promote tax compliance. This Article identifies another aspect of the relationship that generally has been overlooked by the existing literature: the function of tax penalties in defining tax compliance. Tax penalties determine the standards of conduct that satisfy a taxpayer’s obligations to the government; they distinguish compliant taxpayers from non-compliant taxpayers. This Article argues that tax compliance in a self-assessment system should require the tax- payer to report her tax liabilities only on the basis of legal positions that she reasonably and in good faith believes to be correct. But the accuracy penalties provided under current law set much lower standards of conduct. In the case of a non-abusive transaction, current law allows the taxpayer to base her self- assessment on a position having as little as a one-in-five chance in prevailing.