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Full-Text Articles in Law
Tax As Part Of A Broken Budget: Good Taxes Are Good Cause Enough, Stephanie Mcmahon
Tax As Part Of A Broken Budget: Good Taxes Are Good Cause Enough, Stephanie Mcmahon
Faculty Articles and Other Publications
The federal budget is a myth. Despite being a myth, Congress uses the budget to limit its choices by linking its revenue-raising and spending powers under a federal debt ceiling. Through its self-imposed limits, Congress puts tremendous pressure on how it calculates its budget, and that calculation generally assumes any tax provisions will raise revenue when the law becomes effective. However, many tax provisions require additional direction to ensure they operate as the budgetary process expects. That task falls to the Treasury Department and the Internal Revenue Service (IRS) as a bureau of the Department. Consequently, limiting the production of …
Pre-Enforcement Litigation Needed For Taxing Procedures, Stephanie Mcmahon
Pre-Enforcement Litigation Needed For Taxing Procedures, Stephanie Mcmahon
Faculty Articles and Other Publications
Courts have opened tax guidance to procedural attack. Consequently, taxpayers who are found to owe tax may challenge the validity of the guidance implementing the tax if the procedure used by the Treasury Department in adopting the guidance failed to comply with the Administrative Procedure Act, in particular, with notice-and-comment. This increased willingness to consider tax guidance's procedural defects offers little to most taxpayers unless they are also given a better means to raise procedural challenges. Under current law and in most circumstances, generally, taxpayers can bring a challenge only after they have been found to owe taxes in an …
The Perfect Process Is The Enemy Of The Good Tax: Tax's Exceptional Regulatory Process, Stephanie Mcmahon
The Perfect Process Is The Enemy Of The Good Tax: Tax's Exceptional Regulatory Process, Stephanie Mcmahon
Faculty Articles and Other Publications
Many courts and academics critique existing tax exceptionalism or the ability of the federal income tax to be created, applied, or interpreted differently from other laws. Critics have successfully complained that the Treasury Department, and the IRS as a bureau of the Department, issues guidance implementing the Internal Revenue Code using different processes from those required by the Administrative Procedure Act (APA). At the same time, courts are increasing the level of deference given to this guidance to conform to that given other agencies. This article responds to these critics by urging they re-focus their attention on the objectives of …
The Rise And Fall Of Chevron In Tax: From The Early Days To King And Beyond, Steve R. Johnson
The Rise And Fall Of Chevron In Tax: From The Early Days To King And Beyond, Steve R. Johnson
Scholarly Publications
No abstract provided.
Reasoned Explanation And Irs Adjudication, Steve R. Johnson
Reasoned Explanation And Irs Adjudication, Steve R. Johnson
Scholarly Publications
Under the Administrative Procedure Act (APA), an administrative action can be invalidated as arbitrary and capricious if the agency fails to sufficiently explain the reasons for its choices. This principle applies to agency adjudication as well as to agency rulemaking. How does this principle apply to IRS adjudications? Examining five paradigms of IRS decisionmaking, this Article first establishes that the IRS does engage in APA–style adjudication. The Article then examines tax-specific explanation requirements and asks whether a more robust explanation duty patterned on the APA should be imposed on IRS determinations. Based on a variety of legal and prudential considerations, …
A Concrete Shoe For Brand X?, David J. Shakow
A Concrete Shoe For Brand X?, David J. Shakow
All Faculty Scholarship
The Supreme Court’s decision in Home Concrete raises new questions about the deference to be given to administrative pronouncements that conflict with prior judicial decisions. Unfortunately, the opinions of a divided Court leave practitioners to puzzle over the boundaries of its decision.
Cohen: Hard Case Makes (Semi) Bad Law, Steve R. Johnson
Cohen: Hard Case Makes (Semi) Bad Law, Steve R. Johnson
Scholarly Publications
The first Justice Harlan famously cautioned that hard cases can lead to bad law. United States v. Clark, 96 U.S. 37, 49 (1878) (dissenting opinion). This aphorism captures the reality that, when confronted with litigating equities strongly favoring one party, judges tend to massage doctrine to support judgment for that party.
Do Treasury And The Irs Have To Explain Their Choices?, Steve R. Johnson
Do Treasury And The Irs Have To Explain Their Choices?, Steve R. Johnson
Scholarly Publications
The validity of tax regulations has been challenged by taxpayers almost as long as there have been tax regulations. Now, however, we are in a period of unusually high activity on this front. The Supreme Court recently upheld the validity of a regulation under section 3121 in Mayo Foundation for Medical Ed. and Research v. United States, 131 S. Ct. 704 (2011); many cases are testing the validity of regulations extending the six-year statute of limitations under section 6501(e) to basis overstatements (or, as the Service would put it, clarifying the law in this regard); and many cases are …
Tax Court Invalidates New Section 6501(E) Regulations, Steve R. Johnson
Tax Court Invalidates New Section 6501(E) Regulations, Steve R. Johnson
Scholarly Publications
The title of an article of mine in the Fall 2009 issue of the NewsQuarterly asked “What’s Next in the Section 6501(e) Overstated Basis Controversy?” The Tax Court answered that question on May 6, 2010, in its decision Intermountain Insurance Service of Vail, LLC v. Commissioner, 134 T.C. No. 11. In that decision, the court invalidated two temporary regulations that had been issued on September 24, 2009: sections 301.6229(c)(2)-IT and 301.6501(e)-IT.