Law Commons^™

Taxing Combat, Samuel Kan

Dickinson Law Review (2017-Present)

When you are being shot at or dodging landmines you are in a combat zone. Diplomatic niceties aside, these brave warriors are in danger because of the policies of their Government and we must take care of them. Quite frankly, we must act to insure that we do not have a repeat of what happened in Somalia. In Somalia, the families of the soldiers who lost their lives could not receive the benefits that should have gone to them under the Tax Code because the President never declared it a combat zone.

We don’t know exactly where we’re at in …

King V. Burwell: What Does It Portend For Chevron’S Domain?, Leandra Lederman, Joseph C. Dugan

Pepperdine Law Review

This short Essay considers what the U.S. Supreme Court’s decision in King v. Burwell, 135 S. Ct. 2480 (2015), suggests about the future of Chevron deference. It first compares the Court’s approach in King with its approach in two other “extraordinary” nondeference cases, FDA v. Brown & Williamson Tobacco Corp. and Gonzales v. Oregon. It next situates King in a broader context of developments in the Court’s Chevron jurisprudence. The Essay concludes that, while King may simply be a sui generis case involving an important social program, it may also signal a fading appetite for deference among the Justices. - …

The (Perhaps) Unintended Consequences Of King V. Burwell, Kristin E. Hickman

Pepperdine Law Review

The Supreme Court’s decision in King v. Burwell surprised many people, not because of its outcome but because, even as the Court ultimately agreed with the IRS’s interpretation of the statute, the Court expressly denied the IRS Chevron deference. As regards that result, this Essay makes three points. First, the Chevron discussion in King was not incidental, but the IRS and taxes were not foremost on the Court’s mind. Rather, King reflects a careful effort by Chief Justice Roberts to accomplish, through alternative framing, a broader curtailment of Chevron’s scope that he advocated unsuccessfully two terms earlier in City of …

The Rise And Fall Of Chevron In Tax: From The Early Days To King And Beyond, Steve R. Johnson

Pepperdine Law Review

Chevron is receding in tax, not because of any resurgence of tax exceptionalism but because it is receding everywhere. The case will continue to be cited by courts and masticated by commentators, but the unresolved – indeed worsening — conceptual, definitional, and practical incongruities of its doctrine rob it of operational force. King, which the Supreme Court conspicuously chose to resolve without “help” from Chevron, is another mile-marker on Chevron’s downward road. This article maps that road.

King V. Burwell And Tax Court Review Of Regulations, Ellen P. Aprill

Pepperdine Law Review

In King v. Burwell, the Supreme Court did not rely on Chevron to hold valid tax regulations allowing tax credits for taxpayers who enroll in an insurance plan through a federal rather than a state exchange. It instead concluded, relying in good measure on Brown and Williamson, that Congress had not delegated the question at issue to the IRS. It thus introduced a so-called Chevron Step 0. This essay reviews the Tax Court’s use of Chevron and Brown & Williamson to conclude that the Tax Court may well make use of King v. Burwell to review and reject tax regulations …

King V. Burwell And The Chevron Doctrine: Did The Court Invite Judicial Activism?, Matthew A. Melone

Matthew A. Melone

No abstract provided.

Reflections On Home Concrete, Steve R. Johnson

Scholarly Publications

Positive statutory law – principally the Internal Revenue Coe – is the most important source of tax rules. Despite its volume, however, the Code contains many gaps. Tax regulations promulgated by the Department of the Treasury are the principal vehicles for filling the most important gaps.

When consistent with the Code and issued pursuant to proper procedures, Treasure Regulations have the force of law. The validity of Treasury Regulations has been a major battleground in contemporary tax litigation. In the last five years alone, the issue has arisen in high profile cases such as Swallows, Mannella, Lantz, Mayo, Dominion Resources, …

Auer/Seminole Rock Deference In The Tax Court, Steve R. Johnson

Scholarly Publications

No abstract provided.

Tax Abuse According To Whom, Shannon Weeks Mccormack

Articles

In 1996, Congress banned the Treasury Department from enacting retroactive regulations but provided an important exception, allowing tax regulations to apply retroactively “to prevent abuse.” Congress did not, however, explicitly define abuse; nor did it designate to any specific actor the power to do so. This Article provides the first comprehensive look at the level of deference owed a Treasury regulation’s interpretation of the Internal Revenue Code’s abuse exception. Generally, a reviewing court owes some level of deference to an agency’s interpretation of the statute it is entrusted to administer. Some statutory interpretations are entitled to receive the strong standard …

Preserving Fairness In Tax Administration In The Mayo Era, Steve R. Johnson

Scholarly Publications

One of the dominant themes in contemporary federal taxation is bringing tax administration within the fold of general administrative law. In 2011, the United States Supreme Court unambiguously embraced this movement in the landmark case Mayo Foundation for Medical Education & Research v. United States, in which the Court held that challenges to the validity of Treasury regulations generally are governed by the Chevron standard to the same extent as are regulations issued by other administrative agencies.

There was an immediate and strong hostile reaction to Mayo in tax circles. Many fear that Mayo dramatically tips the balance in favor …

Deference To Tax Agencies' Interpretation Of Their Regulations, Steve R. Johnson

Scholarly Publications

This installment closes a loop begun in the last installment of this column. We have been exploring the degrees of deference accorded by the courts to interpretations and positions taken by state and local revenue agencies. The last installment examined conditional deference doctrines, that is, deference specific to particular situations or conditioned on the existence of particular conditions. That installment noted one line of conditional deference, applying to cases in which agencies are interpreting their own regulations. This is often called Auer deference, after one of the most prominent cases of the line. Because of the richness of the Auer …

Conditional Deference To Tax Authorities, Steve R. Johnson

Scholarly Publications

Recent installments of this column have explored an important point of intersection between administrative law and tax law: the degree of deference that courts accord to rules, regulations, and statutory interpretation positions of state and -local revenue agencies. This column continues that exploration. It examines what I call “conditional deference,” that is, according deference to the agency only when particular, defined conditions are present.

The first part below sets the context by describing Skidmore and Mead, two leading federal conditional deference cases. The second part contrasts state conditional deference doctrines, with particular emphasis on the operation of those doctrines in …

Chevron Deference To State Tax Agencies, Steve R. Johnson

Scholarly Publications

The last installment of this column inaugurated a multi-installment project examining judicial doctrines of deference to interpretations and positions taken by state and local tax agencies. We noted that in the various states, these doctrines fall into about a half dozen categories.

This installment explores one of those categories. A major deference rule in federal administrative law (including tax law) emanates from the U.S. Supreme Court’s famous Chevron case. This installment considers the extent to which Chevron and similar approaches are applied in state and local tax cases.

The first part be low briefly describes C …

Intermountain And The Growing Importance Of Administrative Law In Tax Law, Steve R. Johnson

Scholarly Publications

On September 29, 2009, Treasury issued regulations retroactively extending the six-year limitations period for income tax deficiencies resulting from basis overstatements. In its May 6 Intermountain decision, the Tax Court unanimously invalidated those regulations, but on divided rationales. The government has appealed.

lntermountain is a must-read for tax academics and practitioners. It is among the richest decisions on the procedural and substantive validity of tax regulations. Moreover, the opinions in the case, subsequent cases on the issue, .and commentary on these opinions and cases present genuine opportunity for improvement of the law.

This report has five sections. Section I sketches …

Swallows As It Might Have Been: Regulations Revising Case Law, Steve R. Johnson

Scholarly Publications

This is the second of two reports on the Swallozvs Holding decision. 1 In that case, the Tax Court, over three dissenting opinions, invalidated a timing rule contained in a Treasury regulation under IRC section 882. That timing rule provided that some foreign corporations could not claim otherwise available deductions if their returns for the tax year were filed outside an 18-month grace period. The majority and the dissenters clashed over which line of authority – Chevron 2 or the pre-Chevron tax-specific line of decisions typified by National Muffier3 – provides the governing standard for evaluating the validity of …

Swallows Holding As It Is: The Distortion Of National Muffler, Steve R. Johnson

Scholarly Publications

I like big ideas. The opportunity to work with them, and hopefully to add to them, is one of the joys of academic life. But perspective also is required. Not everything genuinely presents "macro" issues. As Freud supposedly said, “Sometimes a cigar is just a cigar.”

In Swallows Holding Ltd. v. Commissioner, the Tax Court, over three dissenting opinions, invalidated a return-filing timing rule in a Treasury regulation under section 882 of the !RC. It is clear that what drove the majority opinion was the perception that the timing rule was contrary to many previous cases interpreting the statute. As …