Old Regs: The Default Six-Year Time Bar for Administrative Procedure Claims

Abstract

Old regs should not be subject indefinitely to administrative procedure challenge. Instead, we should leave them alone. The consensus case law view applies the six-year limitations period under 28 U.S.C. § 2401(a) with accrual at the time of promulgation. This strikes the right balance between accuracy and repose and correctly reflects that all of the elements of the administrative procedure claim are in place at the time of the alleged error, when the regulation was promulgated. When -- as is sometimes true in tax -- the government delays a claim through no fault of any plaintiff, judicial equity and administrative restraint provide appropriate solutions.

Keywords: limitations period, 28 USC 2401(a), six year default time bar, Corner Post, Administrative Procedure Act, Hewitt, Oakbrook, Govig

JEL Classification: K34, K23