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The Need for Mead: Rejecting Tax Exceptionalism in Judicial Deference

83 Pages Posted: 23 Feb 2006  

Kristin E. Hickman

University of Minnesota - Twin Cities - School of Law

Abstract

This Article takes the controversial position that Treasury regulations are entitled to judicial deference under the Chevron doctrine, as clarified by the Supreme Court in the more recent Mead case, whether those regulations are promulgated pursuant to specific authority delegated in a substantive provision of the Internal Revenue Code or in the exercise of general authority granted in Code Section 7805(a). The Article attributes the unwillingness to concede Chevron's applicability to tax exceptionalism, the erroneous perception of many scholars that tax is different from other areas of the law, which in the context of this Article translates into the idea that tax should have its own judicial deference standards separate from the Chevron/Mead regime. This Article reviews a century of jurisprudence and scholarship to show that what many tax scholars and practitioners believe is a unique tax deference tradition is, in fact, merely consistent with broader deference principles espoused by the courts and scholars throughout administrative law. Further, while many in the tax community believe that aspects of tax law and practice render Chevron deference inappropriate for most Treasury regulations, this Article contends that tax closely resembles other administrative law areas in which Chevron deference clearly applies. Finally, having established that the Chevron/Mead framework should apply in tax cases, this Article applies the standard articulated in Mead to demonstrate that Chevron is the appropriate evaluative standard for Treasury regulations and responds to arguments suggesting an alternative outcome.

Keywords: Chevron, Skidmore, Mead, National Muffler, deference

JEL Classification: K10, K19, K20, K23, K30, K34, K40, K41, K49

Suggested Citation

Hickman, Kristin E., The Need for Mead: Rejecting Tax Exceptionalism in Judicial Deference. Minnesota Law Review, Vol. 90, p. 1537, 2006; Minnesota Legal Studies Research Paper No. 05-53. Available at SSRN: https://ssrn.com/abstract=883721

Kristin E. 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)

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