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Technically Important: The Essential Role of Technical Corrections and How Congress Can Revive Them

By Mollie M. Wagoner. Full Text.

Drafting mistakes are an inevitable part of legislation being written by human institutions. In the context of tax, the complex and nuanced field is rife with opportunities for unintended glitches and mistakes to find their way into legislation. What happens when these mistakes result in the law not properly reflecting the intent of the drafters? In recognition of this reality, specifically in the realm of tax, Congress uses technical corrections to bring the letter of the law into line with the original drafter’s intent post-enactment. Technical corrections are meant to be uncontroversial, bipartisan, and revenue neutral. They are not intended to effect policy change, but instead allow policy that was already debated on and passed to function. Since tax is so complex, there is always a need for technical corrections following any type of large-scale tax bill. However, there is significant lag time between when these problems are identified and when technical corrections are enacted. Often, technical corrections are hijacked by lobbyists or other partisan interest as an opportunity for a second bite at the tax reform apple. This complicates their path through Congress significantly.

This Note reviews three tools used to address post-enactments drafting errors: subregulatory guidance, scrivener’s error doctrine, and technical corrections. It then examines the impact of the political environment on the ability for technical corrections to be passed following three major tax bills: the 1986 Tax Reform Act, the Tax Cuts and Jobs Act, and the CARES Act. Based on these case studies, this Note asserts that partisan politics is a significant barrier to implementing technical corrections in a timely manner. This Note advances the procedure for passage of technical corrections should be better insulated from partisanship through use of streamline procedures. A viable technical correction process is an essential component in ensuring effective and productive tax administration.