Report of the Task Force on Judicial Deference, Aba Section of Taxation

62 Pages Posted: 27 May 2005 Last revised: 10 Mar 2008

Ellen P. Aprill

Loyola Law School Los Angeles

Linda Galler

Hofstra University - Maurice A. Deane School of Law

Irving Salem

affiliation not provided to SSRN


As a result of the Supreme Court's decision in United States v. Mead Corporation, 533 U.S. 218 (2001), which emphasized "the great variety of ways in which the laws invest the Government's administrative arms with discretion, and with procedures for exercising it, in giving meaning to Acts of Congress," id. at 235-36, there is a need for an agency-by-agency consideration of the extent to which courts should give deference to administrative pronouncements under the mandate of Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984). Moreover, there is a particular need to develop a clear set of deference concepts for interpretations of the tax law because of, inter alia: (1) the power and pervasiveness of the IRS, (2) the large number and variety of administrative pronouncements issued by the IRS, and, (3) the Supreme Court's continuing reliance in its tax cases on the traditional test of National Muffler Association v. United States, 440 U.S. 472 (1978), rather than on Chevron.

The authors of the Report undertake this task as well as a review of recent case law and make the following recommendations: (1) Federal courts should give Chevron deference to regulations promulgated by the Treasury and the IRS, with (i) legislative tax regulations receiving controlling deference under Chevron so long as they are not arbitrary, capricious, or manifestly contrary to the statute, and (ii) interpretive tax regulations receiving the same controlling deference if they are reasonable under the test of National Muffler, which examines such factors as the extent to which the regulation harmonizes with the plain language, origin, and purpose of the statute; the manner in which the regulation evolved; the length of time the regulation has been in effect; the reliance placed on it; the consistency of interpretation; and the degree of scrutiny Congress has devoted to the regulation; (2) Federal courts should give temporary regulations the same deference as described above, provided that the promulgation of such regulations meets the good cause standards as specified in the Administrative Procedure Act for promulgating regulations without notice and comment; (3) Federal courts should give revenue rulings, certain revenue procedures and certain notices deference under the doctrine of Skidmore v. Swift & Co., 323 U.S. 134 (1944), which directs courts to take into account the agency's experience and its power to persuade, but to retain the ability to choose a better rule even if the agency interpretation is reasonable; and (4) Federal courts should take into account unofficial agency interpretations, such as private letter rulings, technical advice memoranda, and certain litigating positions, only to the extent to which their logic and reasoning appeal to the reviewing court.

Suggested Citation

Aprill, Ellen P. and Galler, Linda and Salem, Irving, Report of the Task Force on Judicial Deference, Aba Section of Taxation. Tax Lawyer, Vol. 57, p. 717, 2004; Loyola-LA Legal Studies Paper No. 2004-10; Hofstra Univ. Legal Studies Research Paper No. 05-15. Available at SSRN:

Ellen P. Aprill (Contact Author)

Loyola Law School Los Angeles ( email )

919 Albany Street
Los Angeles, CA 90015-1211
United States
213-736-1157 (Phone)
213-380-3769 (Fax)

Linda Galler

Hofstra University - Maurice A. Deane School of Law ( email )

121 Hofstra University
Hempstead, NY 11549
United States
516-463-5895 (Phone)

Irving Salem

affiliation not provided to SSRN

No Address Available
(212) 906-1308 (Phone)
(212) 751-4864 (Fax)

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