Tag Archives: tax

Repealing Economic Substance Codification and Replacing It With What?

by Daniel Hemel — Monday, Feb. 20, 2017

The Republican effort to repeal the Affordable Care Act appears to be stalling. If and when it picks up again, the fate of section 7701(o) of the Internal Revenue Code will be far from the most consequential issue at stake. But section 7701(o), the provision added by the ACA that codifies the tax law economic […]

The Stages of Administrative Law Exceptionalism

by Chris Walker — Saturday, Jan. 21, 2017@chris_j_walker

At the American Bar Association’s annual Administrative Law Conference in December, I had the privilege of moderating a panel entitled Your Agency Is Not That Special: The Decline of Administrative Law Exceptionalism. The panel consisted of leading experts on administrative law exceptionalism from three distinct regulatory fields: Jill Family for immigration, Kristin Hickman for tax, […]

Seminole Rock in Tax Cases, by Steve R. Johnson

by Guest Blogger — Thursday, Sept. 15, 2016

This article is not about the wisdom or lack thereof of Auer/Seminole Rock (“ASR”). Instead, it explores an aspect of ASR “on the ground.” Specifically, this article considers the considerable gaps between how the Supreme Court has framed the doctrine and how the United States Tax Court has applied (or not applied) it.   Some […]

Reactions to the GAO Report Highlighting Flawed IRS Rulemaking Procedures

by Andy Grewal — Thursday, Sept. 15, 2016

At the request of Senator Hatch and other lawmakers, the Government Accountability Office recently released a report on various IRS guidance procedures.  The report’s title (“Treasury and OMB Need to Reevaluate Long-standing Exemptions of Tax Regulations and Guidance”) gives away its conclusion — the Treasury and OMB have not carefully considered why the government creates […]

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 […]

When Judges Get Indicted

by Andy Grewal — Thursday, Aug. 25, 2016

Earlier this year, former U.S. Tax Court Judge Diane Kroupa was indicted for conspiracy to commit tax evasion and obstruction of an IRS audit.  During her time on the court, Kroupa authored some significant opinions, including BNY Mellon v. Commissioner, which held that the taxpayer could not properly claim foreign tax credits generated through a […]

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 […]

Altera v. Commissioner: Heads the IRS Wins, Tails the Taxpayer Loses?

by Andy Grewal — Wednesday, Aug. 10, 2016

Altera v. Commissioner:  Heads the IRS Wins, Tails the Taxpayer Loses? Last year, in Altera v. Commissioner, the Tax Court dealt the IRS a major blow on rulemaking issues. In that case, the court held that some highly-controversial international tax regulations were invalid and thus could not apply in determining Altera’s tax liabilities for the […]

Why Lenity Has No Place in the Income Tax Laws

by Andy Grewal — Tuesday, July 19, 2016

The conflict between the rule of lenity and administrative deference doctrines has drawn significant judicial attention recently (see prior coverage here ). I’ve posted on SSRN an essay that discusses some potential implications for the tax laws, and here’s the abstract: A controversy has emerged over how to interpret statutes under which the government can […]

Hillary Clinton’s Unconstitutional Tax Plan

by Andy Grewal — Sunday, Mar. 6, 2016

Tax season is right around the corner, and many Americans will soon discover that they paid more taxes in 2015 than they lawfully owed. On filing their returns, they will happily claim a tax refund. Suppose, however, that the President, with the support of Congress, decides that the rules should retroactively change. Rather than return […]