The Fight Over 'Fighting Regs' and Judicial Deference in Tax Litigation

59 Pages Posted: 19 Mar 2011 Last revised: 11 Jul 2013

See all articles by Leandra Lederman

Leandra Lederman

Indiana University Maurer School of Law

Date Written: 2012

Abstract

The question of how much deference courts should accord agency interpretations of statutes is a high-profile and important issue that affects both rulemaking and case outcomes. What level of deference should courts accord an agency regulation or other rule that an agency has issued opportunistically, during the course of related litigation? This important question has arisen in numerous cases, including the 2011 U.S. Supreme Court decision in Mayo Foundation for Medical Education and Research v. United States, a case involving a Treasury regulation.

To answer the question, the Article analyzes the law on judicial deference to tax authorities generally, as well as specific to the context of pending litigation. It concludes that deference under the famous case of Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. applies to all Treasury regulations issued in accordance with the requirements of the Administrative Procedure Act. It further argues that Revenue Rulings - formal guidance issued by the Internal Revenue Service - should receive deference under Skidmore v. Swift & Co. Following an analysis of the literature and applicable case law, the Article proposes that rulings issued during the controversy receive the applicable level of deference (Chevron or Skidmore), but that the deference inquiry take into account the retroactivity and surprise issues raised by the timing of the agency’s guidance.

Keywords: Chevron deference, Skidmore, Mayo Foundation, Brand X, Treasury regulation, Revenue Ruling, fighting regulation, pending litigation, Internal Revenue Service

JEL Classification: K23, K34, K41

Suggested Citation

Lederman, Leandra, The Fight Over 'Fighting Regs' and Judicial Deference in Tax Litigation (2012). Boston University Law Review, Vol. 92, 2012; Indiana Legal Studies Research Paper No. 186. Available at SSRN: https://ssrn.com/abstract=1780513

Leandra Lederman (Contact Author)

Indiana University Maurer School of Law ( email )

211 S. Indiana Avenue
Bloomington, IN 47405
United States
(812) 855-6149 (Phone)
(812) 855-0555 (Fax)

HOME PAGE: http://www.law.indiana.edu/people/lederman

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