Counterpoint: Tax Exceptionalism from Notice-and-Comment Rulemaking Procedures Is Bad Policy and Bad Law

Abstract

This solicited counterpoint essay defends a judicial trend of demanding that the Treasury Department and Internal Revenue Service satisfy the same procedural requirements under the Administrative Procedure Act as other federal agencies when they adopt regulations. The essay responds to an article and an essay by Prof. David Weisbach in which he argues that APA notice-and-comment rulemaking procedures generally add little value in the tax context and that courts should back off and interpret administrative law requirements to allow Treasury and the IRS to be more relaxed than other agencies about how they follow those procedures.

Note: “This is an article published by the American Bar Association Section of Taxation in ABA Tax Times in the Winter-Spring 2024 issue.”

Keywords: tax administration, rulemaking procedures, administrative procedure act, tax exceptionalism