AUG. 4, 2017
Table of Contents
I. Controversies and Complexities
A. Is the Chill Factor Real?
B. Chilling Concerns and Policy Effects
C. Official Responses to Adverse Determinations
II. Judicial Approaches to Chilling Concerns
A. United States
III. Guidelines for Addressing the Chill Factor
A. Individual Liability
B. Judicially Generated Uncertainty
C. Policy vs. Operational
D. Countervailing Policy Effects
Taxpayer claims against tax officials for harm caused by tax administration activities give rise to several complex public policy concerns that judges must consider. One of the policy concerns most commonly raised to deny taxpayer recovery is the “chill factor” effect.1 The nub of the argument is that imposing legal liabilities on tax officials could result in a range of overdefensive responses. For example, in the face of increased risk of liability for incorrect advice provided to taxpayers, a revenue authority might cease giving taxpayers even the most basic information or provide that information only after following multiple expensive and time-consuming cross-checking procedures.2 Similarly, higher-risk tax collection activities may be avoided for fear of being sued if a mistake is made.3
Overdefensiveness might also manifest itself in the form of tax authorities seeking to avoid difficult cases being brought before the courts. More broadly, otherwise willing and suitable people could be deterred from becoming tax officials.4
Consequently, judges are often faced with submissions that taxpayer recovery in claims against tax officials should be denied because of chilling effect concerns. This article examines the different judicial approaches to cases addressing those concerns in the United States, Canada, Australia, and New Zealand. The goal is to distill from those approaches guidelines for consistent judicial treatment of chill factor concerns in tax cases. It is hoped that the guidelines could minimize unconscious, incremental erosion of taxpayer rights and avoid creating an environment of potentially unjustified tax exceptionalism.
I. Controversies and Complexities
As with most public policy topics, the chill factor effect raises numerous concerns, including fundamental questions about whether chilling effects are real and observable and, if so, whether they should be feared. Debate also surrounds the appropriate weighing of chilling concerns against countervailing policy effects of imposing liability on tax officials.5 There are also questions about whether tax officials in particular respond overdefensively to adverse judicial determinations and what form any overdefensiveness might take. Judges must be mindful of those topics when addressing chill factor concerns in tax cases.
A. Is the Chill Factor Real?
Some commentators question whether, despite its inherent logical appeal, the chill factor effect is real. That skepticism is fueled by the limited empirical studies on the topic and the lack of uniformity in the results of those studies.6 For example, a U.S. study of the allocational impact of the imposition of liability on highway authorities found evidence of a chill factor.7 In contrast, a study on the effect of judicial determinations on activities of the U.S. Environmental Protection Agency was less conclusive, finding both negative and positive motivational effects.8 Several other U.S. studies have reached similarly qualified conclusions.9
Australasian empirical work is also equivocal. A 2004 Australian study into the effects of adverse judicial review determinations on Australian government bodies found that aside from a few instances, there was no evidence of significant chilling effects flowing from adverse judicial review determinations.10
In addition to the variability and authority-specific nature of the results of the studies, it is questionable whether the findings in any one jurisdiction would readily transfer to others. The seemingly contradictory results might simply indicate that different public bodies will respond differently to potential chilling effect triggers. A further complication is that responses to adverse judicial determinations are likely to change over time as public service attitudes, policies, and practices evolve, reducing the utility of older studies.
Academic debate does little to resolve empirical gaps and complexities. There is, however, qualified academic acceptance of the legitimacy of overdefensiveness concerns.11 One commentator has acknowledged the validity of chill factor concerns but has questioned their potential impact, arguing that public authorities often respond to political rather than economic ramifications.12
Some observers challenge chill factor concerns on the basis that the extent and nature of any motivational effects of a judicial determination or legislative imposition of liability will depend on the nature of the related wrong. For example, overdefensive responses to torts imposing personal liability on officials may be more extreme than cases in which liability is imposed at an organizational level.13 Others discount chill factor concerns by distinguishing between short- and long-term effects of overdefensive behavioral responses. For example, one author has suggested that those kinds of policy concerns are weak because they are short-term and that in the long run, improvements in administrative decision-making resulting from imposing liability on public authorities outweigh any chilling effects.14
B. Chilling Concerns and Policy Effects
None of the preceding empirical work or academic commentary examines overdefensiveness in a tax context. However, tax cases raise their own complexities. For example, judges must weigh the possible adverse motivational effects of holding tax officials liable against possible countervailing motivational effects on taxpayers. Those effects might offset any observable short-run chill factor effects and lead to long-term overall improvements in tax administration by fostering voluntary compliance.
Unfortunately, just as there are no tax-specific studies on the potential chilling effects on tax officials, there have also been no empirical studies on possible positive effects of successful claims against officials. The most closely applicable studies are those examining possible links between taxpayer compliance and taxpayer perceptions of justice. One study on the impact of justice concerns on tax compliance reviewed the results of numerous studies and concluded that “taxpayers are less likely to be compliant with a tax system they consider unjust, unfair, and, thus, illegitimate.”15 Should taxpayers perceive unfairness or injustice in restricting the liability of tax officials because of chill factor concerns, the effect may be a reduction in voluntary compliance. Conversely, positive compliance benefits could result from allowing taxpayers to succeed in claims against tax officials more often, despite potential chilling concerns.
It may also be possible to extrapolate from studies linking the effect taxpayer sanctions have on compliance16 and to hypothesize on a possible positive link between greater sanctions against tax officials and taxpayer compliance. It would, however, be a significant leap to assert that taxpayer motivations and responses will be the same as those of tax officials.
Some commentators have discussed the risks of drawing any concrete conclusions from the literature, pointing out the subtleties of tax administration and “the possibility that increasing post-assessment procedural protections may embolden non-compliance or, alternatively, increase compliance through a greater sense of public confidence in the fairness of procedures.”17
C. Official Responses to Adverse Determinations
Few commentators have ventured to consider how or to what extent overdefensiveness might manifest itself in the conduct of tax officials. Some have speculated more generally on the likely effects of imposing liability on “street level” officials. One observer has pointed to four common forms of risk-averse behavior by public officials: inaction, delayed action, formalism through following formal procedures intended to insulate the decision-maker against potential suit, and changes in the character of decisions to those with lower attendant risks of suit than decisions that might otherwise have been made.18 Those reactions are not tax specific, but officials of all kinds perform cost-benefit analyses. For tax officials, “there can be no benefit for incurring the risks taken in attempting to assess or collect taxes,” so the cost-benefit analysis strongly favors risk aversion.19
Despite the logical appeal of those hypotheses, it is difficult to predict what motivates tax officials to engage in risk-averse behavior. Responding to the threat of liability to taxpayers could manifest itself differently and in varying degrees, depending on a range of factors, including the official’s authority and experience, whether the threat is of personal or organizational liability, the official’s knowledge and understanding of the ramifications of adverse judicial outcomes, and the degree of legal certainty about the limits on the potential liability of tax officials.
There is also the broader philosophical question of whether protecting the treasury or revenue function requires taking extra care to avoid setting precedents that might generate overdefensive responses by tax officials. The question is important because any challenge to a revenue authority’s actions indirectly creates vulnerabilities in the funding of the other government functions and initiatives.20 Accordingly, it could be argued that in tax cases, judges must consider both the direct and indirect ramifications of imposing liability on tax officials.
Of course, taken to its logical conclusion, that kind of argument could be used to resist imposing liability on tax officials in any circumstances. And no one seriously advocates endowing tax officials with absolute immunity from liability for all their wrongs because of chill factor concerns, so lines must be drawn.21
II. Judicial Approaches to Chilling Concerns
Judges must frequently adjudicate arguments about potential chill factor effects of imposing liability on tax officials. This section examines the contrasting judicial approaches in the United States, Canada, Australia, and New Zealand.
A. United States
The chill factor effect and the possible adverse effects of it were first judicially noted in Respublica v. Sparhawk, 1 U.S. 357 (1788), a case widely associated with reinforcing the U.S. doctrine of sovereign immunity. However, the first detailed consideration came over 150 years later, in Gregoire v. Biddle, 177 F.2d 579 (1949), a case concerning the malicious detention of a Frenchman during World War II. Justice Learned Hand struggled with weighing potential “monstrous” outcomes of letting loss caused by malicious public servants go unpunished against the public good of not submitting innocent public officials to the fear of being sued. Ultimately, however, chill factor concerns were determinative, with Hand saying, “It has been thought in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation.” Clearly influential in the reasoning was that the case involved a challenge to governmental officers exercising judicial functions.22
U.S. courts have subsequently refined the distinction between judicial or prosecutorial functions of public officials and other functions, with chill factor concerns being afforded greater weight in cases involving the former. In Mitchell v. Forsyth, 472 U.S. 511 (1985), the Supreme Court rejected an overdefensiveness argument that a U.S. attorney-general should be afforded immunity from suit when exercising national security functions. It distinguished national security and judicial functions, observing that “the mere threat of litigation may significantly affect the fearless and independent performance of duty” by judicial actors but would not have the same effect on nonjudicial actors. That line of reasoning has been used to support affording immunity from suit in cases alleging wrongful prosecution by U.S. IRS officers exercising prosecutorial powers.23
Several cases have considered chill factor arguments in constitutional damages claims against tax officials. In Bivens v. Six Unknown Named Federal Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), the U.S. Supreme Court created a constitutional damages action allowing citizens whose constitutional rights have been infringed by a public officer to sue that officer personally for damages, even with no statutory avenue of relief. In Carlson v. Green, 446 U.S. 14, 18 (1980), the Court summarized the availability of Bivens relief: “The victims of a constitutional violation by a federal agent have a right to recover damages against the official in federal court despite the absence of any statute conferring such a right.”
However, courts have struggled with potential chill factor effects of allowing those kinds of claims to proceed against IRS officers.24 For example, in Vennes v. An Unknown Number of Unidentified Agents of the United States, 26 F.3d 1448 (8th Cir. 1994), the court declined to extend the relief to taxpayers despite the extreme behavior of the tax officials in the case.25The majority said expanding Bivens in that way “would have a chilling effect on law enforcement officers and would flood the federal courts with constitutional damage claims by the many criminal defendants who leave the criminal process convinced that they have been prosecuted and convicted unfairly.”
There was a similar result in the Tenth Circuit, but the court left the door open for a potential Bivens action in the tax context, pointing out the need for competing public policy interests to be weighed in determining whether to allow taxpayer relief:
While the comprehensive scheme of the Internal Revenue Code should not be indiscriminately disrupted by the creation of new remedies, certain values, such as those protected by the first and fourth amendments, may be superior to the need to protect the integrity of the internal revenue system.26
Clearly, that approach envisages that there may be justification for the risk of generating an adverse chill factor effect through imposing liability on tax officials. Unfortunately, however, clear guidelines to delineate when chill factor concerns should be considered prohibitive in taxpayer actions have yet to emerge, and U.S. judges tend not to elaborate on chill factor concerns.27
Despite that, it is evident that chill factor concerns weigh more heavily on the minds of U.S. judges when personal liability of tax officials is in question. For example, in dismissing a taxpayer’s claim for damages for a wrongful levy of his property by a tax official, one court observed that creating a remedy that would result in the personal liability of IRS employees would hamper their ability to perform a difficult and vital function.28
Canadian judges have generally been far more nuanced and skeptical in their approach to chill factor concerns than their U.S. counterparts. For example, in Nelles v. Ontario,  2 SCR 170, a case involving allegations of malicious prosecution against a Canadian attorney-general, J Antonio Lamer of the Canadian Supreme Court described the chilling effect argument as “largely speculative.”
In the most detailed analysis of chill factor concerns of any of the cases cited in this article, Lamer acknowledged the limited force chill factor arguments have when proving a claim involves demonstrating a public official’s improper motive or malice rather than simply an error in discretion or judgment. He said that to do otherwise would effectively give officials a “license to subvert individual rights.”29
Chill factor effects in Canada have received judicial attention in several actions involving tortious claims by taxpayers against the Canada Revenue Agency. One taxpayer claimed damages for the CRA’s failure to correctly apply specific tax deductibility rules in assessing the tax liabilities of one of its overseas competitors, which resulted in the taxpayer losing its competitive advantage of being a Canadian resident. In rejecting the taxpayer’s claim, the Alberta Court of Appeal relied partly on chill factor concerns, saying that doing otherwise would mean “significant resources would have to be diverted to dealing with inquiries and complaints about the application of particular rules of taxation.” 30
One plaintiff sought to bring a claim alleging negligent misrepresentation by the minister of finance in breaching a pre-election commitment not to introduce the Ontario health premium. In rejecting the plaintiff’s claim, the court referred to several policy reasons, including chill factor concerns:
Imposing a duty of care in circumstances such as exist in the present case would have a chilling effect. . . . Once elected, members would be concerned about the representations they made during their election campaigns and would not consider themselves at liberty to act and vote in the public interest on each bill as it came before the legislature. In my view, therefore, it would be unwise to impose a duty of care in such circumstances.31
In Leighton v. Attorney-General of Canada, 2012 BCSC 961, the taxpayer alleged that the CRA was negligent in the audit of his company. The court disposed of the claim on proximity grounds and thus did not address policy concerns, but it did refer to “residual policy considerations that would militate against recognizing a duty of care in this case.”
The chill factor argument has received less sympathy in other cases. For example, Sherman v. Canada (Minister of Internal Revenue),  F.C. 1423, involved a claim for access to statistics about tax collection assistance activity between the CRA and IRS that the CRA refused to release to the taxpayer. The court agreed with the taxpayer’s contention that “the chilling effect on future investigations is not a valid reason to refuse disclosure.” That approach is consistent with that in Rubin v. Canada Minister of Transport,  2 F.C. 430, in which the court described the chill factor argument opposing release of information as “nebulous.” Canadian judges have generally taken the view that the public interest in disclosure and the positive effects that greater accountability would have on service standards outweigh any potential chilling effect of disclosure.
One Australian court has acknowledged that the possible chilling effect on the provision of information is a concern, saying:
To impose a legal duty of care on the unsolicited and voluntary giving of any information and advice on serious or business matters would chill communications that are a valuable source of wisdom and experience for a person contemplating a course of conduct.32
Another court elaborated on that argument, confirming that chilling effect concerns should be afforded less weight if malicious or deliberate intent of a public official is alleged.33 If taxpayers seek to impugn official behavior falling short of malice (more akin to negligent behavior), chill factor concerns should be given greater consideration. That parallels Lamer’s approach in Nelles, but Australian judges have generally given far less consideration to chill factor concerns than their Canadian or U.S. counterparts have.
The Australian High Court briefly discussed the topic in Pape v. Federal Commissioner of Taxation, (2009) 238 CLR 1. The commissioner of taxation argued that the taxpayer sought to limit the constitutional power of appropriation, which would cause Parliament to constantly look over its shoulder and fear the long-term consequences “if it made an appropriation outside power.”34 The court rejected that argument, stating that “the occasional declaration that federal legislation is invalid does not cause the progress of government to be unduly chilled or stultified.” Neither the commissioner nor the court provided any evidence to justify their respective views.
That lack of detailed consideration of chill factor arguments is also evident in New Zealand. Ch’elle Properties (NZ) Ltd. v. Commissioner,  NZHC 190, involved a negligence claim against the commissioner of Inland Revenue. The court cited chill factor concerns in rejecting the plaintiff’s claim. It affirmed the views in Rolls Royce New Zealand Ltd v. Carter Holt Harvey,  1 NZLR 324, that “there is a legitimate public interest in regulatory bodies being free to perform their role without the chilling effect of undue vulnerability to actions for negligence.” Again, there was no judicial discussion of any chill factor concerns.
The lack of judicial analysis characterizes the Australasian approach to addressing overdefensiveness. Troublingly, it has been judicially conceded in Australia that policy concerns regarding the chill factor have “intruded” in tax cases, heightening the need for guidelines for addressing those concerns in a consistent and principled manner.35
III. Guidelines for Addressing the Chill Factor
The examination of the relevant case law reveals many differing judicial approaches to chill factor concerns. It is still possible, however, to formulate guidelines for addressing those concerns in a principled and legally consistent manner, irrespective of jurisdiction. Four guidelines are set out below.
A. Individual Liability
The chill factor effect should have greater weight when the cause of action imposes personal liability on individual tax officials. For example, chilling effect fears are often raised in U.S. Bivens-based constitutional damages actions, which involve claims against individual officers. If officials are prone to react in an overdefensive manner, they are more likely to do so when personal liability is at stake; hence, extra caution is required to prevent triggering overdefensive responses to adverse outcomes.
However, the approach must be more nuanced than simply accepting chill factor concerns as determinative whenever the taxpayer suit is against an individual tax official. That is because some personal actions against public officials involve difficult evidentiary hurdles for taxpayers to overcome to proceed with their suit. For example, the torts of misfeasance in public office and of malicious prosecution require the plaintiff to demonstrate that the official acted maliciously and deliberately. As Lamer observed in Nelles, proving those kinds of claims is notoriously difficult, and there are other built-in deterrents to bringing them, such as adverse costs orders for filing frivolous or vexatious claims.36
Accordingly, an honest official acting rationally has little to fear from suit and should not be expected to react overdefensively to the potential for those types of suits. Equally, dishonest officials should not be permitted to escape liability based on general policy concerns that their honest colleagues might react overdefensively. The weighing of policy interests clearly militates against that result. Doing otherwise risks granting tax officials a “license” to behave maliciously or dishonestly.37
Conversely, if negligent or innocent mistakes have been made causing taxpayer harm, the potential chilling effects of imposing liability should be given greater consideration. There is a common thread among the judicial comments in the jurisdictions examined: In particular, chilling effect concerns feature prominently in negligence cases against tax officials in Australasia and Canada.
Therefore, significant evidentiary weight should be afforded to chill factor fears if liability on individual officers is proposed for lower standards of misbehavior, such as negligent or unintentional mistakes. That approach would help align judicial reasoning in the jurisdictions examined and would compel judges to recognize that overdefensiveness concerns should not be treated as an “all or nothing” proposition.
B. Judicially Generated Uncertainty
The chill factor effect should be afforded greater evidentiary weight if allowing a claim to proceed would generate legal uncertainty about whether tax officials can be sued. That principle is based on the fact that the chilling effect stems from concerns regarding overdefensive behavior, not defensive behavior per se. Consequently, it is easy to appreciate the potential for officials to respond overdefensively if their potential exposure to liability is uncertain or indeterminate, even if they are acting rationally.
Hence, if comprehensive legislation for addressing taxpayer complaints exists, a judge should be cautious about setting precedent that introduces uncertainty by extending a tax official’s liability. It is therefore understandable that in U.S. cases involving Bivens damages claims, judges have referred to the potential chill factor effects of second-guessing Congress and introducing a cause of action that Congress, via the Internal Revenue Code, may have intended to displace.38
The same caution should be applied if taxpayer success would create exceptions to well-established limits on liability.39 Doing otherwise simply creates an environment in which tax officials can legitimately fear the potential for frequent and indeterminate liability.40Referring to the uncertainty surrounding taxpayer ability to recover damages from U.S. tax officials, one observer has said that “the sword of Damocles does exist; however, it does little more than deter Internal Revenue employees from carrying out their duties.”41
C. Policy vs. Operational
Greater weight should be afforded to chilling effect concerns in cases involving challenges to discretionary or policy functions versus purely operational or administrative ones. There is an inherent logical appeal in ensuring that tax officials are not overdefensive in exercising legislatively sanctioned discretions, such as whether to prosecute tax offenders, how to interpret tax laws, and how to apply limited tax administration funds.42 In contrast, it is more difficult to sustain an argument for avoiding overdefensiveness to challenges to purely operational functions, such as administrative activities undertaken to implement policy or discretionary decisions.
The reasoning behind that distinction is that many of the operational functions of revenue authorities are like those of any other large business — basic, repetitive clerical and mechanical tasks carried out by employees whose work helps implement higher-level policies and decisions. Their activities are characteristically procedural. In the long run, defensive responses to liability for malfunctions in operational tasks are likely to result in improvements in carrying out procedural tasks.43 Disproportionately defensive responses pose little direct threat to the revenue base.
Distinguishing between discretionary and operational functions can be difficult44 but should not detract from the potential utility of the distinction. In the United States, the Federal Tort Claims Act of 1948 delineates the limits of immunity federal officials have from suit in tort.45Australia, Canada, and New Zealand use a similar distinction for determining when a public authority owes a tortious duty of care.46
The distinction is broad enough to encapsulate recognized distinctions between prosecutorial and judicial functions, which are characteristically discretionary, and other administrative functions.47 It also has been described as specifically meant to limit the potential chilling effects of imposing liability on the state by permitting suits for ordinary torts.48
D. Countervailing Policy Effects
Potential overdefensiveness effects should be weighed against the potential positive effects on tax administration activities that imposing liability on tax officials would have. As noted, the extent of any chilling effect from imposing liability on public officials is far from clear or universally accepted. Hence, sound legal analysis demands that judges considering chill factor concerns should engage in that weighing process.
The first three guidelines in this section are essentially examples of a weighing process. For example, it is crucial to weigh possible overdefensive effects against the prospect of providing immunity to tax officials who have acted with dishonesty or malice. The potential adverse consequences of allowing the harmful behavior are likely to outweigh any overdefensive effects of imposing liability.
However, a specific guideline is needed to emphasize that judges should always consider possible positive consequences of imposing liability on tax officials whenever the question of a consequent chilling effect is raised. As noted, most judges do not engage in any weighing process. At a minimum, whenever chill factor concerns are raised to resist imposing liability on tax officials, judges should always attempt to weigh those concerns against other possible positive effects, such as on taxpayer morale and compliance and short- and long-term improvements in tax administration service standards and efficiency.
While significant uncertainty surrounds those possibilities, similar uncertainties surround the chill factor effect itself. Further, that sort of judicial consideration could trigger legislative attention and further empirical work to resolve those uncertainties.
There are significant complexities and controversies regarding the existence of any chill factor effect. Further, it is unclear whether potential overdefensive behavior should be a concern and how it might manifest itself in the tax context. The only certainty is the absence of empirical evidence that could be used to confidently predict positive or negative motivational effects of imposing liability on tax officials. Consequently, courts considering taxpayer claims against tax officials should resist giving chilling effect concerns only a cursory review.
Also, the case law examined reveals little uniformity in the judicial treatment of chill factor concerns in tax cases. Judicial approaches vary from unqualified acceptance to outright rejection. Few judges in the jurisdictions examined have subjected overdefensiveness concerns to the rigors of evidentiary rules.
Even so, several common threads can be drawn from those different judicial approaches that can lead to a more legally sound and predictable approach to addressing those concerns. This article has extrapolated those threads and set them out as four basic guidelines for judges and policymakers. None of them is a perfect solution in every case, and in many cases, more than one would need to be applied to address the problem. That is unsurprising — public policy concerns are typically incapable of being addressed in a single, formulaic manner, and chill factor concerns are no exception.
However, the guidelines address the fundamental problems associated with considering overdefensiveness purely on a discretionary, case-by-case basis, which can invite uncertainty. They also encourage a more detailed and nuanced approach that could lead to the development of judicial commentary that could help taxpayers and administrators understand their rights and responsibilities. The guidelines could also serve as a primer for empirically testing the validity of various chill factor concerns and assisting tax administrators and policymakers in foreseeing possible overdefensive behavior and minimizing its harm.
1 Thses referred to as the “chilling” or “overdefensiveness” effect, all used interchangeably in this article.
2 These arguments have been used to defend Revenue powers to revoke or modify revenue rulings on a retroactive basis. See, e.g., Edward Morse, “Reflections on the Rule of Law and ‘Clear Reflection of Income’: What Constrains Discretion?” 8 Cornell J. L. & Pub. Pol’y 445, 490 (1999).
3 For example, reductions in IRS tax collection actions in the 1990s have been attributed to the threat of personal actions for damages against tax officials. See Christopher Pietruszkiewicz, “A Constitutional Cause of Action and the Internal Revenue Code: Can You Shoot (Sue) the Messenger?” 54 Syracuse L. Rev. 1, 5 (2004). See also Seth Kaufman, “IRS Restructuring and Reform Act of 1998: Monopoly of Force, Administrative Accountability, and Due Process,” 50 Admin. L. Rev. 819, 827 (1998).
4 In Harlow v. Fitzgerald, 457 U.S. 800 (1982), the U.S. Supreme Court expressed concern about “the general costs of subjecting officials to the risks of trial — distraction of officials from their governmental duties, inhibition of discretionary action, and deterrence of able people from public service.” Those comments were cited with approval in Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).
5 This examination extends to claims against tax officials in their personal capacities as well as claims against the administration.
6 The U.K. Law Commission lamented those facts in two reports on administrative redress for citizens from public bodies. See “Administrative Redress: Public Bodies and the Citizen,” Consultation Paper No. 187 (2008); and “Monetary Remedies in Public Law: A Discussion Paper” (2004), at [7.10]-[7.11].
7 See Joseph Cordes and Burton Weisbrod, “Government Behaviour in Response to Compensation Requirements,” 11 J. Pub. Econ. 47 (1979).
8 See Rosemary O’Leary, “The Impact of Federal Court Decisions on the Policies and Administration of the U.S. Environmental Protection Agency,” 41 Admin. L. Rev. 549 (1989).
9 See, e.g., Charles Johnson, “Judicial Decisions and Organisational Changes: Some Theoretical and Empirical Notes on State Court Decisions and State Administrative Agencies,” 14 L. & Soc’y Rev. 27 (1979); and Bradley Canon, “Studying Bureaucratic Implementation of Judicial Policies in the United States: Conceptual and Methodological Approaches,” in Judicial Review and Bureaucratic Impact: International and Interdisciplinary Perspectives (2004).
10 Robin Creyke and John McMillan, “The Operation of Judicial Review in Australia,” in Judicial Review and Bureaucratic Impact: International and Interdisciplinary Perspectives 161 (2004).
11 See, e.g., Osborne Reynolds, “The Discretionary Function Exceptions of the Federal Torts Claims Act,” 57 Geo. L.J. 81, 121-123 (1968); Paul Craig and Duncan Fairgrieve, “Barrett, Negligence and Discretionary Powers,” Pub. L. 626, 635 (1999); Susan Kneebone, Tort Liability of Public Authorities 393 (1998); Keith Stanton et al., Statutory Torts 57 (2003); Harry Woolf, Protection of the Public — A New Challenge 60 (1990); Cornelius Peck, “The Federal Tort Claims Act: A Proposed Construction of the Discretionary Function Exception,” 31 Wash. L. Rev. 207, 223 (1956); and Donal Nolan, “Suing the State: Governmental Liability in Comparative Perspective,” 67 Mod. L. Rev. 844, 859-860 (2004).
12 Daryl Levinson, “Making Government Pay: Markets, Politics, and the Allocation of Constitutional Costs,” 67 U. Chi. L. Rev. 345 (2000).
13 See Peter Schuck, Suing Government (1983). See also Section III, infra.
14 Lachlan Roots, “A Tort of Maladministration: Government Stuff-Ups,” 18 Alternative L.J. 67, 71 (1993).
15 Michael Wenzel, “The Impact of Outcome Orientation and Justice Concerns on Tax Compliance: The Role of Taxpayers’ Identity,” 87(4) J. Applied Psychol. 629 (2002).
16 Those studies conclude that harsher sanctions might foster greater taxpayer compliance. See Jeffrey Roth, John Scholz, and Ann Witte, 1 Taxpayer Compliance: An Agenda for Research91 (1989).
17 Leslie Book, “The Collection Due Process Rights: A Misstep or a Step in the Right Direction,” 40 Hous. L. Rev. 1145, 1160 (2004).
18 Schuck, “Suing Our Servants: The Court, Congress, and the Liability of Public Officials for Damages,” Sup. Ct. Rev. 281, 309-312 (1981).
19 Pietruszkiewicz, supra note 3, at 64-65.
20 “The cost may be borne by another department, a bureaucracy independent from the one whose actions are most directly associated with the injury.” David Cohen, “Suing the State,” 40 U. Toronto L.J. 630, 647 (1990).
21 U.S. judges in particular have acknowledged that some principles, such as some constitutionally protected rights, should take priority over tax collection and administration activities. See National Commodity and Barter Association National Commodity Exchange v. Gibbs, 886 F.2d 1240, 1248 (10th Cir. 1989).
22 Gregoire v. Biddle, 177 F.2d at 580, citing Yaselli v. Goff, 12 F.2d 396, 406 (1926): “The public interest requires that persons occupying such important positions and so closely identified with the judicial departments of the Government should speak and act freely and fearlessly in the discharge of their important official functions.”
23 See, e.g., Stankevitz v. IRS, 640 F.2d 205 (1981), applying precedent set in Butz v. Economou, 438 U.S. 478, 508-517 (1979).
24 Leave to bring action is typically denied. See, e.g., Capozzoli v. Tracey, 663 F.2d 654 (5th Cir. 1981); and Morris v. United States, 521 F.2d 872 (9th Cir. 1975).
25 Ridgeley A. Scott, in “Suing the IRS and its Employees for Damages: David and Goliath,” 20 S. Ill. U. L.J. 507, 561 (1996), summarized the egregious facts:
Undercover IRS employees furnished $100,000 in cash to the plaintiff, who lost it. The employees apparently did not like the idea of trying to explain the loss, and instead attempted to recover the money by threatening to dismember the plaintiff’s children. The threats forced the plaintiff into drug and weapons offenses in an attempt to satisfy the employees. The plaintiff claimed that the threats were a denial of due process.
26 Gibbs, 886 F.2d at 1248.
27 The case law is far from settled. Pietruszkiewicz has asserted that “a Bivens remedy may or may not be available depending on the Circuit in which the case is litigated.” Supra note 3, at 55.
28 Baddour Inc. v. United States, 802 F.2d 801, 807-808 (5th Cir. 1986).
29 Nelles,  2 SCR at 195.
30 783783 Alberta Ltd. v. Attorney-General (Canada et al.), 2010 ABCA 226.
31 Canadian Taxpayers Federation v. Ontario (Minister of Finance), (2004) 73 O.R. (3d) 621.
32 San Sebastian Pty Ltd. v. Minister Administering the Environmental Planning and Assessment Act 1979, (1986) 162 CLR 340, 372.
33 Northern Territory v. Mengel, (1995) 185 CLR 307. All cases alleging malicious conduct by Australian tax officials have failed, typically because of the difficulty in proving malice, so that distinction has yet to be applied or discussed in a tax case.
34 Pape, 238 CLR at 205-206, relying on Victoria v. Commonwealth and Hayden, (1975) 134 CLR 338, 418, which asserted that a narrow construction of the provision would have a chilling effect “on governmental and parliamentary initiatives.”
35 See Commissioner v. Payne, (2001) 177 ALR 270, 281.
36  2 SCR at 197.
37 As Lamer alluded in Nelles.
38 There is also Canadian authority for that kind of approach in unjust enrichment claims involving tax legislation, albeit in the context of the ability to raise a claim in cases of noncompliance with statutory time frames. See British Columbia Ferry Corp. v. MNR,  4 FC 3. See also Michael Beninger, “Taxpayer Rights: Emerging Legal Techniques,” paper presented at the annual Canadian Tax Foundation Conference (Sept. 24-27, 2000), at [10.8].
39 That recommendation is consistent with the tortious approach (in Canada and Australia, for example) requiring express consideration and weighing public policy concerns when the imposition of a duty of care in novel circumstances is proposed. Both countries derive their approaches from the United Kingdom’s two-stage approach developed in Anns v. Merton Borough Council,  2 All ER 492, which requires public policy consideration at the second stage.
40 Indeterminate liability or “floodgate” arguments go hand-in-glove with chill factor concerns, and judges frequently discuss them together. See, e.g., 783783 Alberta; Nelles; and Vennes.
41 Pietruszkiewicz, supra note 3, at 67-68.
42 See note 4, supra.
43 That is consistent with Roots’ analysis of chill factor concerns summarized in Section I, supra.
44 See Ham v. Los Angeles County, 46 Cal. App. 148, 162 (1920) (“It would be difficult to conceive of any official act, no matter how directly ministerial, that did not admit of some discretion in the manner of its performance, even if it involved only the driving of a nail”); and Barrett v. Enfield London Borough Council,  2 AC 550 (“Even knocking a nail into a piece of wood involves the exercise of some choice or discretion”).
45 The relevance of the policy-operational distinction in the Federal Tort Claims Act has been examined:
Section 421 of the Federal Tort Claims Act sets out a number of classes of claims as to which the United States does not waive its immunity. The most important of these is a non-waiver of claims “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government.”
Heinz Hink and David Schutter, “Some Thoughts on American Law of Government Tort Liability,” 29 Rutgers L.J. 710, 721-722 (1965-1966). The distinction has generated much U.S. judicial discussion. See, e.g., Dalehite v. United States, 346 U.S. 15 (1953); Indian Towing Co. v. United States, 350 U.S. 61 (1955); and United States v. Gaubert, 499 U.S. 315 (1991).
46 Following the precedent set in Anns,  2 All ER 492. For discussion, see Stephen Bailey and Michael Bowman, “The Policy-Operational Dichotomy — Cuckoo in the Nest,” 45 Cambridge L.J. 430, 431-436 (1986).
47 See, e.g., Mitchell, 472 U.S. 511.
48 Scott, supra note 25, at 520.