Chapter 2 A brief history of tax clinics around the globe
Donovan Castelyn and Annette Morgan*
2.1 Key findings
While tax clinics are not as well established as their law clinic counterparts, tax clinics are becoming more numerous all around the world. What started in the US is now present in Australia and Europe, meaning that low-income taxpayer support is improving in those jurisdictions with a tax clinic. However, some of the newer tax clinics (particularly in Europe) remain in their infancy, meaning that it is important to reflect on the history and future of clinical tax education (CTE) in universities.
2.2 Introduction
Tax clinics globally are a fairly recent phenomenon, though their origins date back to the late 1960s in the United States of America. Since 2018, we have seen a growing global community of tax clinics sprouting up around the world. First, Australia started with one clinic in 2018, which soon grew to seventeen in 2022. The UK and Ireland followed suit and have also established their own clinics under the guidance of both the US and Australian models.
Tax clinics are similar in nature to that of legal clinics within educational organisations, but their focus is solely on taxation matters. It is important to note that the actual profession of taxation can be undertaken by both lawyers and accountants each having their own areas of expertise, and this will also be the case in the study of taxation at educational organisations: we often find tax courses in both law and business schools within universities.
Students may therefore study taxation as part of their legal studies before training to be lawyers, or they may study it as part of their business or commerce degrees before qualifying as accountants. In the US and the UK, many of the tax clinics are predominantly run out of law schools and therefore only students studying law are able to work within these clinics. In Australia and Europe, working with students from business schools is more prominent (or a combination of business and law schools).
The countries where tax clinics are present have a differing concept of their target group to benefit from their assistance. The US makes use of the Low-Income Taxpayer Clinics (LITC) concept, which requires clients to be under a certain level of income as determined by the government each year: they have an exceedingly small ability to assist those with more income than the threshold. Meanwhile in Australia, income is not necessarily the primary basis on which help can be provided. Under the national programme, it is mainly left to the discretion of the individual clinics to decide whom they will assist, with many choosing to assist vulnerable taxpayers or those with no representation in their taxation affairs.
What follows is a brief history of the tax clinic regime from its inception in the US to where it is today, with several more countries actively involved in having tax clinic regimes of their own.1 Technical and pragmatic details in respect of the establishment of a clinical initiative, together with assessment and eligibility criteria, will largely be addressed in subsequent chapters.
2.3 From humble beginnings
Much of what follows is dedicated to the early work of Harvard professor, Keith Fogg, who diligently chronicled the American LITC experience.2 Fogg recollects that the first test tax clinic was established at Harvard Law School in 1968 and supported by funding from the Internal Revenue Service (IRS).3 This initial programme enabled law students from the Harvard Law School to assist taxpayers undergoing an office audit in the Boston District whereby students were permitted to accompany taxpayers as a ‘witness’ but not as the taxpayers’ legal representative.
Despite the well-intentioned motivations for this programme, it was discontinued a mere eighteen months later based on a perceived lack of benefit to the school and the IRS.4 Clearly undeterred, the somewhat modern version of the LITC appeared in the early 1970s.5 Fogg and the IRS credit the first LITC to Hofstra University in 1974. This programme continues to operate to this day.6 Throughout the 1970s and 1980s, more universities opened tax clinics, stipulating that the service was targeted at low-income taxpayers and supported by funds from the Department of Education.7
In addition to the pedagogical motivations, a central theme of each clinic during this time (and which continues today) was the provision of timely, accurate and reliable tax advice and/or representation to eligible low-income taxpayers.8
Despite this growth, only about ten law school tax clinics existed by 1990.9 About that time, Janet Spragens started a tax clinic at American University (based in Washington DC) and, shortly thereafter, Nina Olson started the first nonacademic low-income taxpayer clinic in Richmond, Virginia.
For all intents and purposes, Spragens and Olson are credited with navigating the explosive growth of the clinical initiative from the early 1990s and shaping the programme into its modern form. In particular, Spragens and Olson advocated extensively for national funding of the LITC and a robust bill of taxpayer rights during this time, ultimately succeeding in their efforts at attaining matching grants for the LITCs in the summer of 1998,10 and amendments to the taxpayers’ bill of rights, codified in 1996.11
With the creation of the grants to federal tax clinics, the clinics took off rapidly, demonstrating the importance of sustainable resourcing for clinics.12 In the first year (in which grant applications were available), the IRS received forty-three grant applications and approved thirty-four grants totalling approximately US$1.46 million.13 Initially, oversight of the grant programme was placed with the IRS Assistant Commissioner (Wage and Income).14 In 2003, oversight of the grant programme was moved to the National Taxpayer Advocate.15
Fogg emphasises that the remarkable change after the establishment of the grant concerned the makeup of LITCs. He notes:
Prior to the establishment of [Olson’s Community Tax Law Project (CTLP)] in 1992, the first 18 years of LITCs involved only academic clinics. By 1998, three of the 17 clinics were independent with the remaining clinics coming from academia. That changed dramatically in 1999 as the first grants were issued. Starting that year, academic and independent clinics grew but legal services organizations entered the mix and overtook the other types of clinics combined. This change in the mix of types of clinics created a change in the makeup of the LITC community.16
Since these humble beginnings, LITCs have continued to operate in both the academic and nonacademic domains with a particular focus on assisting low-income individuals who have a tax dispute with the IRS and providing education and outreach to individuals who speak English as a second language (ESL).17
Relevantly, the established aims of the programme now include:
• The provision of pro bono representation on behalf of low-income taxpayers in tax disputes with the IRS including audits, appeals, collection matters and federal tax litigation
• Responding to IRS notices and correction of account problems
• The education of low-income and ESL taxpayers about taxpayer rights and responsibilities
• The identification and advocacy for issues that impact low-income taxpayers.18
The impact of the LITC programme continues to expand. In the 2021 grant year, LITCs represented 19,413 taxpayers, educated 133,757 taxpayers and service providers, helped secure US$5.8 million in refunds, and decreased or corrected US$50 million in tax liabilities.19 Moreover, the LITC programme awarded over US$12 million in grants to 130 organisations in 47 states and the District of Columbia – with similar funding and assistance levels expected in 2022 and beyond.20
2.4 From east to west
With a clear and demonstrated history of success, it was only natural that the clinical initiative found footing in other jurisdictions, and Australia is understood to be the first nation following the US to introduce a similar concept. Moreover, Curtin University, under the leadership of Annette Morgan and Donovan Castelyn, is credited as the first tax clinic in Australia and subsequently the impetus for the National Tax Clinic Project.21
The tax clinic at Curtin University parallels the LITCs in the US, sharing similar philanthropic and pedagogical ideologies. As noted by Castelyn and Morgan, the Curtin Tax Clinic
was conceived with the dual purpose of (i) responding to the evolving demands placed on Australian tax and legal education, in recognition of the emerging needs of industry, and (ii) facilitating access to free and reliable tax advice for unrepresented taxpayers seeking to meet or comply with their tax-related affairs.22
Informed by the success of their clinical initiative and the value of the clinical proposition from the US, Morgan and Castelyn lobbied the Australian Government to fund the National Tax Clinic Pilot Program throughout the course of 2018 and into early 2019.23
The National Tax Clinic Trial was subsequently established in 2019 and enabled ten academic institutions (including Curtin University), state and territory wide, to conduct a twelve-month funded trial of the programme.24 Following the success of a Tax Clinics Pilot Program, the Australian Government confirmed it would provide AUD4 million over four years from 2019–20 to fund tax clinics across the country.25
The ten Australian universities who benefited from this subsequent funding included: Australian National University (Australian Capital Territory, ACT), UNSW Sydney (New South Wales, NSW), Western Sydney University (NSW), Charles Darwin University (Northern Territory, NT), Griffith University (Queensland, QLD), James Cook University (QLD), University of South Australia (South Australia, SA), University of Tasmania (Tasmania, TAS), Melbourne Law School (Victoria, VIC) and Curtin University (Western Australia, WA).
More recently, in mid-2021, the Australian Government sought to expand the initiative more broadly. While still confined to academic institutions, 2021 would see a shift in the future funding model, with grants now awarded on an open and competitive basis.26 Following the initial competitive round, the clinical programme was expanded to thirteen participants, with a registry of current members housed on the Australian Tax Office (ATO) website.27
Although there were (and remain) some noticeable differences among the universities selected for the pilot and future funding, as well as a stark contrast in eligibility and services offered in respect of the US initiative (as will be explored in subsequent chapters), the practical experience afforded to students and assistance provided to vulnerable and/or unrepresented taxpayers remains consistent.
In particular, each participant in the Australian programme is required to deliver on the following:
• To provide pro bono advice, guidance and assistance on tax matters
• To represent clients on a pro bono basis in dealings with the ATO
• To create education activities in each tax clinic to improve understanding of the tax system
• To provide advocacy facilities to enable wider involvement in highlighting and reducing issues and problems in the tax system
• To staff tax clinics with students undertaking relevant studies including accounting, law or dispute resolution.
While a cohesive annual report showcasing the marked and demonstrative successes of each clinic is still forthcoming, one such illustration of the value of the programme comes from the Curtin Tax Clinic. By February 2022 (from 1 July 2021), the clinic had assisted over 750 new clients to write off over AU$160,000 in debt, prepared over 6,000 tax returns and 2,000 business activity statements, and assisted in the consolidation of 200 superannuation funds.
2.5 From south to north
More recently, both the United Kingdom and Ireland have undertaken to pilot similar initiatives in their respective jurisdictions. The United Kingdom’s first tax clinic, the North West Tax Clinic (NWTC), piloted between January and March 2020 under the supervision of Amy Lawton and David Massey. This clinic was a collaboration between Lancaster University, the University of Central Lancashire and TaxAid UK. As will be discussed in Chapter 4, TaxAid are a unique form of low-income taxpayer support in the UK.
Following the success of the NWTC, Lawton has launched the Scottish Tax Clinic (STC) at the University of Edinburgh using a similar model (and partnership with TaxAid).28 The STC launched in September 2021.29
The UK clinics aim to provide free, expert, independent and confidential advice to those unable to pay for professional advice, especially if the taxpayer has been unable to resolve their issue with His Majesty’s Revenue and Customs (HMRC). The UK clinics thus align with the US model that uses income to determine whether the clinic can help. Specifically, the NWTC and STC can assist eligible taxpayers with:
• Completing self-assessment tax returns
• Appealing against penalties for tax returns filed late
• Understanding Pay-As-You-Earn codes and assisting with changes if incorrect
• Explaining tax calculations and appealing against these if they are incorrect
• Liaising with HMRC to cancel tax returns they have issued if not necessary.30
While the STC continues to develop, there is yet to be national funding in the UK to support the expansion of tax clinics to other in-need areas of the UK. There remain large parts of the UK that do not have access to a tax clinic. It is hoped that this changes in the future.
In Ireland, the University of Galway Tax Clinic is the first university-led tax clinic. Based in the J. E. Cairnes School of Business and Economics, the clinic is run by students of taxation on a voluntary basis, under the supervision of the clinic director, Emer Mulligan, and tax experts from the business community.
The University of Galway clinic is currently embarking on a phased approach to operation and continuation. Phase one concerned the pilot phase, which spanned across the 2019 and 2020 calendar years. This phase largely concerned consultation with students in University of Galway and the broader tax profession. Phase two concerned the expansion and roll out of the initiative to all students across the university, undertaken across the 2021 and 2022 calendar years.
Phase three, which broadly accords with the timeline of phase two, saw the service offered on a pilot basis to two community groups who support marginalised citizens in the region, in addition to the student body.31 The clinic is primed to be extended for these groups and over time its services will be offered to other community groups.
The aim of the clinic, consistent with the aforementioned initiatives, is to provide tax assistance and information to individuals and community organisations who would benefit from tax consultations but may not otherwise have access or funding, and to give them the lifelong skills to handle their own tax affairs, while also enhancing their overall tax education.
2.6 Conclusion
While the position in the US and Australia is relatively certain in respect of the continuation of CTE initiatives, the path is less clear for the UK and Ireland (and beyond). To that end, this chapter and, indeed, the book serve not only as a reflection on best and past practices but also as a foundation for a pathway forward.
It is essential that we continue to build upon the work of those before us to drive forward new initiatives. This will allow universities to navigate yet uncharted territory and to build on the underlying themes engendered by access to tax justice, service to the community and capacity building in our students.
Pragmatically, this may involve initiating international student exchanges, continuing to engage in international conferences, encouraging the development of new clinical projects, and advocating further for both domestic and international recognition.
* Donovan Castelyn, Senior Industry Fellow, Senior Lecturer, University of Tasmania; Annette Morgan, Lecturer, Curtin Law School. Co-founders of the Curtin Tax Clinic.
1 Keith Fogg, ‘Taxation with Representation: The Creation and Development of Low-Income Taxpayer Clinics’, Tax Law 67 (2013): 5. This work is highly commended for a deep and rich exploration of the American position with respect to tax clinics and explores concepts not addressed in this chapter in significantly more detail.
2 Ibid. See also, Taxpayer Advocate Service, ‘Low Income Taxpayer Clinics’, <www.taxpayeradvocate.irs.gov/about-us/low-income-taxpayer-clinics-litc/> accessed 4 August 2022.
3 Fogg, ‘Taxation with Representation’.
4 Ibid.
5 Ibid.
6 The Hofstra programme was started by Stuart Filler and was officially created by an order of the Supreme Court of the State of New York. See, Internal Revenue Service, Office of the Assistant Commissioner, ‘Report on Legal Assistance Test Program’ (November 1978). The description of the Hofstra clinic is the basis for the operation of most law school tax clinics today – third-year students acting as tax advisors for clients while supervised by an attorney serving as clinic director.
7 Fogg, ‘Taxation with Representation’, 3. Each clinic based their models on the previously established clinics focused on low-income taxpayers and providing practical skills to their enrolled university students.
8 Internal Revenue Service, ‘Report on Legal Assistance Test Program’.
9 Ibid.
10 Ibid, 23. See also, US: Restructuring and Reform Act of 1998 (RRA 98), which authorised $6 million in matching grants to the LITCs.
11 Ibid, 22. See also, US: Taxpayer Bill of Rights 2, Pub. L. No. 104–68, 110 Stat. 1452, 1452 (1996).
13 See, Taxpayer Advocate Report and Low-Income Taxpayer Clinics: Hearing before the Subcommittee on Oversight of the H. Comm. on Ways and Means (107th Cong. 44, 12 July 2001) (statement of Leslie Book, Federal Tax Clinic, Villanova University School of Law).
14 Ibid.
15 Under the direction of Nina Olson. The Secretary of the Treasury appointed Nina Olson the second National Taxpayer Advocate (NTA). She assumed this position in January 2001.
16 Fogg, ‘Taxation with Representation’, 21–2.
17 Internal Revenue Service (IRS), ‘Low Income Tax Clinics’, <www.irs.gov/advocate/low-income-taxpayer-clinics> accessed 5 August 2022.
18 Ibid.
19 Ibid.
20 Low-Income Taxpayer Clinics, ‘Annual Report 2021’ (2021), <www.irs.gov/pub/irs-pdf/p5066.pdf> accessed 5 August 2022.
21 Donovan Castelyn, Stephanie Bruce and Annette Morgan, ‘2019 National Tax Clinic Project: Curtin University – Curtin Tax Clinic’, Journal of Australian Taxation 22, no. 2 (2020): 1. In 2018 Curtin University provided Morgan and Castelyn with $25,000 seed funding to pilot the initiative. See also, Ann Kayis-Kumar and Jack Noone, ‘Measuring the Social Impact of University-Based Pro Bono Tax Clinics: Co-creating a Framework for Evidence-Based Evaluation’, (Austaxpolicy: Tax and Transfer Policy Blog, 3 October 2019), <www.austaxpolicy.com/measuring-the-social-impact-of-university-based-pro-bono-tax-clinics-co-creating-a-framework-for-evidence-based-evaluation/> accessed 5 August 2022.
22 Castelyn, Bruce and Morgan, ‘2019 National Tax Clinic Project’, 3.
23 See Curtin Tax Clinic, ‘Annual Report’ (2019), <www.linkedin.com/posts/curtin-tax-clinic_2019-annual-report-activity-6577819156249366528-XJm0/?utm_source=linkedin_share&utm_medium=member_desktop_web> accessed 4 August 2022.
24 See Scott Morrison, ‘Keynote Address’ (Speech, Australian Chamber of Commerce and Industry Annual Dinner, 28 November 2018). Relevantly, the prime minister announced the establishment of ‘ten new tax clinics … to provide free assistance to small businesses and individuals with disputes with the ATO. These tax clinics will ensure small businesses in need have access to specialist advice from tax practitioners and students in the field on a pro bono basis’. See also, Journal of Australian Taxation 22, no. 2 (2020) Special Edition on Tax Clinics for a comprehensive overview of clinics involved in the trial phase.
25 See Treasury, ‘Mid-Year Economic and Fiscal Outlook’ (December 2019), <https://archive.budget.gov.au/2019-20/myefo/download/MYEFO_2019-20.pdf> accessed 4 August 2022.
26 Australian Taxation Office, ‘National Tax Clinics Grant Program’ (archived Grant, closed 21 June 2021), <www.grants.gov.au/Go/Show?GoUuid=04bd4ff8-8251-4713-aafe-92ac41f55134> accessed 4 August 2022.
27 Australian Taxation Office, ‘National Tax Clinic Program’, <www.ato.gov.au/General/Gen/National-Tax-Clinic-program/> accessed 4 August 2022.
28 Kapil Summan, ‘Tax Clinic at Edinburgh Law School First in Scotland’ (Scottish Legal News, 23 September 2021), <www.scottishlegal.com/articles/tax-clinic-at-edinburgh-law-school-first-in-scotland> accessed 5 August 2022; ICAS, ‘Edinburgh Law School Has Opened a Tax Clinic: Find Out More and Get Involved’, <www.icas.com/landing/tax/edinburgh-law-school-has-opened-a-tax-clinic-find-out-more-and-get-involved> accessed 4 August 2022.
29 You can find out more about what the STC gets up to via their social media pages, for example, <https://twitter.com/ScotTaxClinic> accessed 1 October 2022.
30 TaxAid, ‘North West Tax Clinic’, <https://taxaid.org.uk/guides/taxpayers/northwest> accessed 4 August 2022.
31 See <www.universityofgalway.ie/taxclinic/> accessed 2 January 2022.