Deconstructing the Duty to the Tax System: Unfettering Zealous Advocacy on Behalf of Lesbian and Gay Taxpayers

Abstract

In this article, I consider how the tax lawyer's generally-acknowledged duty to the tax system should be applied in the representation of lesbian and gay clients. Due to the significant initial advantages that taxpayers are thought to have over the government in the tax compliance and enforcement process, this duty to the tax system requires a tax lawyer to avoid both questionable positions and the temptation to play the audit ?lottery.? The tax lawyer is asked to temper the zealousness of her advocacy in this way in order to preserve the integrity and, ultimately, the proper functioning of the tax system. For lesbian and gay taxpayers, however, the realities of the tax compliance and enforcement process starkly contrast with the conventional picture. Lesbians and gay men are in the unique position of being the only group that is the object of both overt and covert invidious discrimination in the application of the tax laws. Thus, if a tax lawyer were to temper her advice to lesbian and gay clients in accordance with the conventional conceptualization of the duty to the tax system, she would risk compounding the effects of this discrimination and doing serious harm to her clients. The purpose of this article is to open the necessary ethical space for crafting an alternative view of the duty to the tax system - one that better suits the representation of lesbian and gay clients. The alternative view that I lay out descries a duty to the tax system that exists in harmony with, rather than opposition to, the duty of zealous advocacy. This alternative view allows a tax lawyer simultaneously to protect her lesbian and gay clients from harm and to discharge her obligation to safeguard the integrity of the tax system.