Abstract

http://ssrn.com/abstract=2350908
 


 



Who Should Determine Whether an Agency's Explanation of a Tax Rule is Adequate?


Richard J. Pierce Jr.


George Washington University Law School

2013

63 Duke Law Journal, 2014, Forthcoming
GWU Legal Studies Research Paper No. 2013-124
GWU Law School Public Law Research Paper No. 2013-124

Abstract:     
This essay is Professor Pierce’s contribution to the annual Duke Law Journal symposium on administrative law. The topic of this year’s symposium is "Taking Administrative Law to Tax." The other participants in the symposium make three main points: (1) IRS and Treasury have long engaged in practices that are inconsistent with the APA, specifically including issuance of legislative rules without complying with the notice and comment procedure described in APA section 553; (2) courts should require IRS and Treasury to comply with the APA; and, (3) several opinions issued by the Supreme Court in recent years suggest that courts are prepared to require IRS and Treasury to comply with the APA when they issue tax rules.

Professor Pierce agrees with the other participants on all three of those points. He parts company with the other participants on one important question, however. He argues that courts should not require IRS and Treasury to comply with APA section 553 as that section has been interpreted by courts. He describes the many ways in which courts have dramatically expanded the requirements of APA section 553. He argues that courts should not be encouraged to apply the judicial version of APA section 553, as opposed to the original version Congress contemplated, to tax rules because to do so would so "interrupt the flow of revenues as to jeopardize the nation’s fiscal stability" in violation of the Anti-Injunction Act. Professor Pierce argues that the courts should continue to refuse to allow pre-enforcement review of tax rules to discourage courts from applying the unduly demanding judicial version of APA section 553 to tax rules.

Number of Pages in PDF File: 20

Accepted Paper Series


Download This Paper

Date posted: November 7, 2013  

Suggested Citation

Pierce, Richard J., Who Should Determine Whether an Agency's Explanation of a Tax Rule is Adequate? (2013). 63 Duke Law Journal, 2014, Forthcoming; GWU Legal Studies Research Paper No. 2013-124; GWU Law School Public Law Research Paper No. 2013-124. Available at SSRN: http://ssrn.com/abstract=2350908

Contact Information

Richard J. Pierce Jr. (Contact Author)
George Washington University Law School ( email )
2000 H Street, N.W.
Washington, DC 20052
United States
202-994-1549 (Phone)
202-994-5157 (Fax)
Feedback to SSRN


Paper statistics
Abstract Views: 186
Downloads: 48

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo3 in 2.360 seconds