Law Commons^™

Substance Over Form? Phantom Regulations And The Internal Revenue Code, Amandeep S. Grewal

Andy Grewal

What happens when Congress commands the Secretary of an administrative agency to issue regulations, but the Secretary fails to act?

In most areas of the law, the answer is obvious: a party aggrieved by the Secretary's delay should file a suit (under 5 U.S.C. 706 or a similar provision) asking a court to compel the Secretary to issue regulations.

In the tax area, however, a different pattern has emerged. When Congress enacts a statute commanding the Secretary of the Treasury to act, the courts generally have not bothered to issue an order compelling him to do so. Rather, the reviewing …

Selective Waiver And The Tax Practitioner Privilege, Amandeep S. Grewal

Andy Grewal

Congress blundered badly by defining the federally authorized tax practitioner privilege by cross-reference to the attorney-client privilege. The relationship between a client and a FATP is wholly different from that between a client and an attorney, and the application of attorney-client principles to the FATP privilege has given rise to confused judicial opinions. This report attempts to stem the confusion with respect to one aspect of the FATP privilege. The proper application of the selective waiver doctrine to the FATP privilege remains an open question, though courts seem poised to reject it. They have rejected it numerous times in the …