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Restoring the Lost Anti-Injunction Act

83 Pages Posted: 16 Oct 2017 Last revised: 22 Nov 2017

Kristin E. Hickman

University of Minnesota - Twin Cities - School of Law

Gerald Kerska

Independent

Date Written: October 16, 2017

Abstract

Should Treasury regulations and IRS guidance documents be eligible for pre-enforcement judicial review? The D.C. Circuit’s 2015 decision in Florida Bankers Association v. Treasury puts its interpretation of the Anti-Injunction Act at odds with both general administrative law norms in favor of pre-enforcement review of final agency action and also the Supreme Court’s interpretation of the nearly identical Tax Injunction Act. A 2017 federal district court decision in Chamber of Commerce v. Internal Revenue Service, appealable to the Fifth Circuit, interprets the Anti-Injunction Act differently and could lead to a circuit split regarding pre-enforcement judicial review of Treasury regulations and IRS guidance documents. Cases interpreting the Anti-Injunction Act in general are fragmented and inconsistent. In an effort to gain greater understanding of the Anti-Injunction Act and its role in tax administration, this Article looks back to the Anti-Injunction Act’s origin in 1867 as part of Civil War-era revenue legislation and the evolution of both tax administrative practices and Anti-Injunction Act jurisprudence since that time.

Keywords: Anti-Injunction Act, Treasury Regulations, Administrative Procedure Act, Florida Bankers, Chamber of Commerce

JEL Classification: K10, K19, K20, K23, K29, K34, K40, K41

Suggested Citation

Hickman, Kristin E. and Kerska, Gerald, Restoring the Lost Anti-Injunction Act (October 16, 2017). 103 Va. L. Rev. 1683 (2017). Available at SSRN: https://ssrn.com/abstract=3054177

Kristin Hickman (Contact Author)

University of Minnesota - Twin Cities - School of Law ( email )

229 19th Avenue South
Minneapolis, MN 55455
United States
612-624-2915 (Phone)

Gerald Kerska

Independent ( email )

No Address Available

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