Loving and Legitimacy: IRS Regulation of Tax Return Preparation

Abstract

The validity of regulations promulgated by the Department of Treasury is a principal battleground in contemporary federal taxation. So far, the clash has had two phases: establishment and implementation. Phase one entailed the destruction of the citadel of tax insularity, the bastion within which tax specialists thought to keep themselves safe from having to learn and apply general administrative law. In cases such as Swallows, Mannella, Lantz, Mayo, and the welter of cases culminating in Home Concrete, the old guard was defeated. It is now firmly established that tax, no less than other regulatory areas, is subject to the rules of administrative law. That proposition having been settled, we are now in phase two: implementation, the application of specific administrative law rules in particular tax contexts.