Law Commons^™

Taxes, Free Expression, And Adult Entertainment, Steve R. Johnson

Scholarly Publications

The interaction of morality and money produces interesting results. One manifestation is legislation in some states and proposals in others to impose higher taxes on “gentlemen’s show lounges” (OK, I mean strip clubs) and other venues of adult entertainment.

In 2010 and 2011 two state supreme courts passed on the legality of different forms of those taxes, upholding them against challenges that they infringed on free speech/free expression rights protected by the First Amendment of the U.S. Constitution. This installment of the column considers those two decisions: the February 2010 Utah decision in Bushco v. Utah State Tax Commi …

New Light On Auer/Seminole Rock Deference, Steve R. Johnson

Scholarly Publications

We have been engaged in an extended exploration of doctrines under which courts may defer to positions and interpretations by state and local tax agencies. The immediately prior installment of this column discusses such deference under state equivalents of what is known as the Auer or Seminole Rock principle, under which courts usually defer to agency interpretations of the agencies’ own ambiguous regulations.

About two weeks after the publication of that installment, the U.S. Supreme Court handed down a major new decision on the Auer principle: Talk America, Inc. v. Michigan Bell Telephone Co. Talk America bids fair to be …

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 …