Who’s Afraid of the APA?
David J. Shakow
University of Pennsylvania Law School; Chamberlain Hrdlicka
February 1, 2012
Tax Notes, Vol. 134, No. 7, p. 825, February 2012
U of Penn, Inst for Law & Econ Research Paper No. 12-09
U of Penn Law School, Public Law Research Paper No. 12-15
The Supreme Court’s decision in Mayo Foundation for Medical Education and Research v. United States means that tax practitioners must be more sensitive to administrative law and judicial deference to administrative rules. This includes gaining some familiarity with the Administrative Procedure Act (APA) and the major cases that deal with judicial deference to administrative action, starting with Chevron USA Inc. v. Natural Resources Defense Council Inc. While the Supreme Court spends a lot more time considering issues of administrative law rather than tax law, the many decisions don’t result in a clear set of rules as to how courts are to treat administrative pronouncements. In “Who’s Afraid of the APA?” David Shakow identifies the important issues in the application of general rules of administrative law to tax regulations. The discussion should help tax practitioners identify the issues that are raised when the validity of an IRS pronouncement is open to question. Further guidance may be available when the Supreme Court hands down its decision in Home Concrete & Supply LLC v. United States, which was argued before the Supreme Court in January.
Number of Pages in PDF File: 14
Keywords: Taxation, administrative law, administrative rules and regulations, judicial deference to IRS rulemaking, IRS legislative regulations, IRS interpretive regulations, IRS rulings, retroactive rules, good cause exception
JEL Classification: K23, K34
Date posted: February 24, 2012