Out of Time? APA Challenges to Old Tax Guidance and the Six-Year Default Limitations Period

37 Pages Posted: 22 Aug 2022

See all articles by Susan C. Morse

Susan C. Morse

University of Texas at Austin - School of Law

Date Written: August 16, 2022

Abstract

The government has just begun to raise the six-year limitations period under 28 U.S.C. § 2401(a) to defend against administrative procedure challenges to old tax guidance. This defense should work. The tradeoff between accuracy and repose in these cases is solved by the six-year limitations period of 28 U.S.C. § 2401(a), which begins to run when guidance issues for such administrative procedure claims. One complication in tax is that most opportunities to raise administrative procedure claims arise in deficiency or refund cases, where the pre-litigation tax procedure can be lengthy and outside the control of the plaintiff. But the solution is not to hold the limitations period open indefinitely. That would give no weight to the value of repose. Instead, the right solution is to temper the effect of the limitations period with appropriate adjustments, including equitable tolling and estoppel and administrative practices, such as waiving the limitations period with respect to tax returns filed within six years of the issuance of challenged guidance.

Keywords: default federal limitations period, 28 USC 2401(a), Notices, CIC Services, Administrative Procedure Act, Govig

JEL Classification: K34, K23

Suggested Citation

Morse, Susan C., Out of Time? APA Challenges to Old Tax Guidance and the Six-Year Default Limitations Period (August 16, 2022). Available at SSRN: https://ssrn.com/abstract=4191798 or http://dx.doi.org/10.2139/ssrn.4191798

Susan C. Morse (Contact Author)

University of Texas at Austin - School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States

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