Who Speaks for Tax Equity and Tax Fairness? the Emergence of the Organized Tax Bar and the Dilemmas of Professional Responsibility

By Thorndike, Joseph J.; Mehrotra, Ajay K. | Law and Contemporary Problems, Spring 2018 | Go to article overview

Who Speaks for Tax Equity and Tax Fairness? the Emergence of the Organized Tax Bar and the Dilemmas of Professional Responsibility


Thorndike, Joseph J., Mehrotra, Ajay K., Law and Contemporary Problems


I

INTRODUCTION

In 1961, shortly after assuming his new post as Assistant Secretary of the Treasury for Tax Policy, legal scholar Stanley Surrey issued a challenge to his former colleagues in academia and legal practice. The tax system, he said, was urgently in need of both repair and renovation. Existing faults were obvious and future problems certain. The task ahead was clear. "A complex society such as ours, ever growing and changing, must necessarily expect and demand that its tax system also keep pace," he said. (1)

Politicians, however, were ill-equipped to confront these looming challenges. Public debate on tax reform was lively, but it was also suffused with motivated and biased reasoning. "Much of the material presented to the Congress and in the public print comes down to an attempt to score debating points," Surrey complained. "There is a good deal of commotion, but it is all thrust and parry." (2)

Compounding the problem, government expertise was in short supply. In recent years, the Treasury Department--traditionally the source for dispassionate fiscal analysis--had retreated from the field of serious tax research. That withdrawal had created a ripple effect in academia where Surrey detected "a distinct lessening" in research on tax issues. (3)

In the face of this shortfall, Surrey encouraged his former colleagues in the tax trenches and academic ivory tower to assume the mantle of policy leadership. "[T]ax knowledge starts with the tax expert," Surrey intoned with a technocrat's faith in the value of expertise, "be he a legal or accounting practitioner, a research consultant in the business world, or an economist or law professor in the universities." (4) More specifically, Surrey challenged the organized tax bar to undertake some candid introspection. "[O]ur profession has constantly to be asking itself as tax lawyers--with a stake in the integrity of the tax system and with an integral role in the task of linking that system with our taxpayers-- whether we are doing as much as we can to bring before the Congress and the public the needed objectivity and perspective," he said. (5) "How well do we fulfill the role that only we can play?" (6)

Surrey's answer to that question must have unsettled his audience, which was gathered for a meeting of the American Bar Association's Section of Taxation. To be sure, Surrey acknowledged, tax lawyers were active in the legislative process, engaging policy issues and offering guidance to Congress. But typically, tax lawyers entered the policy arena as client advocates rather than defenders of the tax system, more likely to plead for special provisions than to oppose them. They were, in other words, part of the problem, not the solution. (7)

Surrey expected more from the bar, and he urged the Tax Section to join the Treasury in active defense of the fisc. But he leavened his critique--and disappointment--with a certain amount of sympathy. "[P]erhaps we cannot do better," he granted. "Perhaps the attorney-client relationship, be it considered in its strict legal framework or as an attitude of loyalty or moral obligation, effectively prevents a tax practitioner from speaking his own mind on current issues before the Congress and the public." (8)

Surrey's concession--his recognition that the attorney-client relationship imposed constraints on the civic role of the tax professional--underscored a long-running tension within the organized tax bar. The American Bar Association (ABA) did not establish its official Section of Taxation (Section) until 1939, but predecessor ABA divisions had been working on tax issues since 1906. These groups continued to struggle for more than half a century to define a workable public role for the profession collectively and tax lawyers individually. This struggle, moreover, had unfolded amidst a complex and rapidly changing environment, both for the legal profession and the American fiscal state. …

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