Tag Archives: IRS

Auer Symposium: Deference by Bootstrap

by Andy Grewal — Wednesday, Sept. 14, 2016

  If the Supreme Court abandons the deferential approach articulated in Auer v. Robbins, will agencies lose interpretive power over their own regulations?  Not necessarily. Under Auer and various predecessor cases, an agency’s interpretation of its own regulation controls, unless that interpretation is plainly erroneous or inconsistent with the regulation.  Courts do not always precisely […]

More Thoughts on the IRS’s Failure to Comply with the Congressional Review Act

by Andy Grewal — Thursday, Aug. 11, 2016

  In a prior post, I discussed concerns expressed by Senator Hatch regarding the IRS’s failure to subject its “major” regulations to the procedures required by the Congressional Review Act (CRA). Major regulations are generally those that have economic effects of $100 million or more and would seem to include many tax regulations.  However, as […]

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The Section 385 Debt-Equity Regulations and The Separation of Powers

by Andy Grewal — Friday, July 29, 2016

The IRS recently proposed some highly controversial regulations related to debt-equity classifications. A challenge to the regulations seems likely, and a recent news article discusses how some pending legislation might affect the controversy. See Bloomberg BNA, “Debt-Equity Rules Could Be Easier to Strike With Pending Bill” (7/25/16). That legislation, The Separation of Powers Restoration Act […]

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The IRS’s Private Equity Regulations Might Backfire

by Andy Grewal — Friday, May 20, 2016

In a post last week , my co-blogger Daniel Hemel explained how Section 707(a)(2)(A) may allow the IRS to deny the tax benefits associated with so-called carried interests, even in the absence of legislative action. That statute essentially grants the IRS the regulatory authority to alter the tax treatment of transactions between partners and partnerships, […]

Fighting IRS Regulations Might Become Easier

by Andy Grewal — Sunday, Feb. 7, 2016

It has generally been quite difficult for taxpayers to challenge alleged abuses of the IRS’s regulatory authority. Under section 7421(a) of the tax code, courts lack jurisdiction over suits “for the purpose of restraining the assessment or collection of any tax.” Commentators generally believe that this statute, commonly referred to as the Anti-Injunction Act, prohibits […]

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The IRS’s Invalid Fee Waiver Regulation

by Andy Grewal — Thursday, Dec. 10, 2015

In my prior post, I considered proposed regulations issued by the Treasury and the IRS regarding management fee waiver transactions. See Treasury Department & IRS, Disguised Payments for Services, 80 Fed. Reg. 43652 (July 23, 2015). To cater to the majority readership of the Yale Journal on Regulation, that post viewed the issue through the lens […]

The IRS’s Attack on Private Equity Firms May Be Doomed

by Andy Grewal — Monday, Dec. 7, 2015

In a prior post, I described some issues related to regulatory severability, that is, a court’s decision to strike or not strike an entire regulation project when it finds that only a portion of it violates the law. In this post, I want to explain how principles of regulatory severability could doom some regulations recently proposed […]

More on Regulatory Severability

by Andy Grewal — Monday, Dec. 7, 2015

In a prior post, I described some issues related to regulatory severability, that is, a court’s decision to strike or not strike an entire regulation project when it finds that only a portion of it violates the law. In this post, I want to explain how principles of regulatory severability could doom some regulations recently proposed […]

D.C. Circuit Review – Reviewed: Criminal Law Exceptionalism?

by Aaron Nielson — Saturday, Oct. 31, 2015@Aaron_L_Nielson

The D.C. Circuit issued two opinions this week. The first—American Institute of Certified Public Accounts v. IRS—is a typical administrative law case. By contrast, the second— United States v. Ortega-Hernandez —seems like anything but an administrative law case; it is a criminal appeal involving a guilty plea. But pause for a moment: Why isn’t the […]