Who’s Afraid of the APA?: The Application Of Administrative Law To Tax Regulations

By David Shakow

The Supreme Court’s decision in Mayo Foundation for Medical Education and Research v. United States means that tax practitioners must be more sensitive to administrative law and judicial deference to administrative rules.  This includes gaining some familiarity with the Administrative Procedure Act (APA) and the major cases that deal with judicial deference to administrative action, starting with Chevron USA Inc. v. Natural Resources Defense Council Inc.  While the Supreme Court spends a lot more time considering issues of administrative law rather than tax law, the many decisions don’t result in a clear set of rules as to how courts are to treat administrative pronouncements.

In “Who’s Afraid of the APA?,” I identify the important issues in the application of general rules of administrative law to tax regulations.  The discussion should help tax practitioners identify the issues that are raised when the validity of an IRS pronouncement is open to question.  Further guidance may be available when the Supreme Court hands down its decision in Home Concrete & Supply LLC v. United States, which was argued before the Supreme Court in January.  This article appeared in 134 Tax Notes 825 (Feb. 13, 2012).

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