The United States Internal Revenue Service (IRS) has repeatedly taken the position
that because the IRS does not ask taxpayers to identify their race or ethnicity on
submitted tax returns, IRS enforcement actions are not affected by taxpayers’ race
or ethnicity. This claim, which I call “colorblind tax enforcement,” has been made
by multiple IRS Commissioners serving in multiple administrations (both
Democratic and Republican). This claim has been made to members of Congress
and to members of the press.
In this Article, I refute the IRS position that racial bias cannot occur under current
IRS practices. I do so by identifying the conditions under which race and ethnicity
could determine tax enforcement outcomes under three separate models of racial
bias: racial animus, implicit bias, and transmitted bias. I then demonstrate how such
conditions can be present across seven distinct tax enforcement settings regardless
of whether the IRS asks about race or ethnicity. The IRS enforcement settings ana-
lyzed include summonses, civil penalty assessments, collection due process hear-
ings, innocent spouse relief, and Department of Justice (DOJ) referrals.
By establishing that every major enforcement function of the IRS remains vulner-
able to racial bias, this Article also challenges the IRS decision to omit race and
ethnicity from the collection and analysis of tax data. The absence of publicly avail-
able data on IRS enforcement activities by race should not be interpreted as evi-
dence that no racial disparities exist. I conclude by describing alternative
approaches to preventing racial bias in tax enforcement other than the current IRS
policy of purported colorblindness.