The ability of the Internal Revenue Service to both collect the tax and enforce the initial determination of tax liability in a neutral and fair manner has been compromised by a February 2011 pronouncement issued by the Department of Justice stating that the President and the Department of Justice believe that section 3 of the Defense of Marriage Act is unconstitutional and that the Department of Justice will no longer defend the statute in courts. The pronouncement results in a disparate treatment of similar taxpayers based solely on the forum of litigation. Through this lens, I examine whether it is proper for the Department of Justice and the Internal Revenue Service to continue to share prosecutorial powers when such results are possible. Assuming that any incremental improvement is desirable as long as does not harm one person, I conclude that the Department of Justice should have exclusive litigation authority to protect against this very result.
David J. Herzig, Justice for All: Reimagining the Internal Revenue Service, 33 Va. Tax Rev. 1 (2013).