![]() Over time, Congress or agencies come up with rules that apply to those agency determinations. Informal adjudications are like the redheaded step-child, neglected and left to their own devices. The APA has a robust package of protections for formal adjudications, including a role for administrative law judges. When it comes to informal adjudications, as the opinion discusses, the APA provides very little in the way of protections when it comes to protections and rights before the agency (essentially the APA says that informal adjudications trigger prompt notice rights when an agency denies something). The district court opinion in Moore sets the stage nicely when it notes that in the world of administrative agency informal adjudications procedural protections are rooted in three main places: organic agency procedures, the APA and the constitution. ![]() In this post I provide some context on procedural due process and then a review of the Moore court’s approach to the issue. (I note that a number of articles have considered the excessive fines issue, including this excellent piece in the Journal of Tax Practice and Procedure a few years ago by Steven Toscher and Barbara Lubin Jack Townsend’s coverage of the Zwerner case from last year has lots of insightful coverage on that issue). In today’s post I discuss the procedural due process issues. Those issues involve the Fifth Amendment’s procedural due process clause and the Eighth Amendment’s excessive fines clause. I left for another day the court’s discussion of the constitutional issues. Moore stands out as there is little law surrounding the penalty and defenses to the penalty In the post, I discussed how the district court held that the taxpayer violated the law by not filing FBARs and did not have reasonable cause for the nonfiling but that the record before it was inadequate for it to determine whether the amount of the penalties was appropriate. Last month I wrote about Moore v US, a case involving an assessment of the nonwillful FBAR penalty.
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