A Problem of Remedy: Responding to Treasury's (Lack of) Compliance with Administrative Procedure Act Rulemaking Requirements

Abstract:     
In earlier work, I found that more than 40% of Treasury regulations studied are susceptible to legal challenge for their failure to satisfy Administrative Procedure Act rulemaking requirements. Given this finding, why is it that taxpayers rarely raise such claims? The article explores this question and focuses particularly on statutory and doctrinal limitations on pre-enforcement judicial review in the tax context and their role in further limiting post-enforcement challenges. Although the article proposes ways in which the courts could relax the limitations on pre-enforcement judicial review in tax cases, the article also acknowledges that the courts are unlikely to change course and that congressional action may be necessary.

Number of Pages in PDF File: 63

Keywords: Treasury, regulations, APA, Administrative Procedure Act, pre-enforcement, judicial review, Chevron, Skidmore, standing, ripeness

JEL Classification: K1, K10, K2, K20, K23, K29, K3, K34, 39, K4, K41

Accepted Paper Series