Administrative Law Commons^™

The 'No Surplusage' Canon In State-Local Tax Litigation, Steve R. Johnson

Scholarly Publications

Previous installments of this column have examined numerous canons or conventions of statutory interpretation in their application to state and local tax controversies. This installment considers another canon: the precept that courts should prefer interpretations that render no part of a statute superfluous. A recent treatise phrased the principle thus:

If possible, every word and every provision [of an enactment] is to be given effect. . . . None should be ignored. None should needlessly be given an interpretation that causes it to duplicate another provision or to have no consequence.

The first part below describes the canon generally. The …

Home Concrete: After The Cheering, Problems, Steve R. Johnson

Scholarly Publications

No abstract provided.

The Irrelevance Of Politics For Arbitrary And Capricious Review, Mark Seidenfeld

Scholarly Publications

This Article contends that, properly understood, judicial review of agency action under the reasoned decision-making standard precludes a court from considering political influence, but nonetheless allows an agency to consider it. It does so by identifying two fundamental attributes of such review, as courts have traditionally applied it, that have eluded scholarly focus and perhaps recognition altogether. The first attribute is that agency reasons, which are what courts review, are justifications rather than motivations for agency action. From this attribute, it follows that the irrelevance of politics for judicial review does not preclude politics as a legitimate agency consideration. The …

Cohen: Hard Case Makes (Semi) Bad Law, Steve R. Johnson

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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.

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 …

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 …

Mayo And The Future Of Tax Regulations, Steve R. Johnson

Scholarly Publications

Of the heady early days of the French Revolution, Wordsworth wrote: “Bliss it was in that dawn to be alive. But to be young was very heaven.” Those of us interested in the intersection of tax law and administrative law may be excused if we feel similar exhilaration about the time in which we live.

In terms of the intersection, this is the most exciting moment in the tax history of the United States. Recent cases have tested – and cases still in progress continue to test –- the validity of several Treasury regulations:

1. On January 11 the Supreme …

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 …

Following The Apa Will Not Eliminate Useful Guidance, Steve R. Johnson

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No abstract provided.

Chevron's Foundation, Mark Seidenfeld

Scholarly Publications

This Article addresses the question of how a court can justify deferring to an administrative agency interpretation of a statute under the Chevron doctrine given the accepted understanding that Article III of the Constitution makes the judiciary the ultimate decider of the meaning of law in any case or controversy that is properly before a court. It further considers the ramifications of the answer to that question on the potential forms that any doctrine of interpretive deference may assume.

This Article first rejects congressional intent to delegate interpretive primacy to agencies as the basis for Chevron. It argues that such …

Substituting Substantive For Procedural Review Of Guidance Documents, Mark Seidenfeld

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No abstract provided.

Trade Secrets, Disclosure, And Dissent In A Fracturing Energy Revolution, Hannah J. Wiseman

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In the United States, Congress has traditionally relied, in part, upon citizen participation to control industrial activity and its effects on public welfare. It has also required industry to disclose certain information to the public in order to enable this participation. Early on in the movement toward expanded federal regulation of industry, Congress granted broad standing to individuals in generous “private attorney general” provisions in environmental and business-related statutes. It also required agencies to follow strict notice-and-comment rulemaking procedures, which directed agencies to publicize proposed rules and receive citizen comments. Through statutes such as the Emergency Planning and Community Right-to-Know …

Tilted Versus Reasonable Interpretation Of Tax Law, Steve R. Johnson

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In part, Interpretation Matters is about the craft of advocacy, how statutory interpretation arguments can be effectively made – and effectively countered – in state and local tax cases. For example, when one’s opponent in such a case invokes one or another of the canons of construction, how is that canon to be blunted?

One strategy we often have explored is fighting fire with fire – that is, identifying and asserting another recognized canon that leads to an opposite conclusion. One of the most famous articles on statutory interpretation arrayed dozens of pairs of canons that seemingly contradict each other. …

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 …

The Adam Walsh Act And The Failed Promise Of Administrative Federalism, Wayne A. Logan

Scholarly Publications

For advocates of federalism, these are uncertain times. With hope of meaningful judicial federalism having largely receded, and Congress persisting in its penchant for intrusions on state authority, of late several scholars have championed the capacity of executive agencies to enforce and preserve federalism interests. This paper tests this position, providing the first empirically based critical analysis of administrative federalism, focusing on the recently enacted Adam Walsh Act, intended by Congress to redesign states’ sex offender registration and community notification laws. The paper casts significant doubt on the accepted empirical assumptions of administrative federalism, adding to the limited evidence amassed …

Tax Court Invalidates New Section 6501(E) Regulations, Steve R. Johnson

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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.

An Irs Duty Of Consistency: The Failure Of Common Law Making And A Proposed Statutory Solution, Steve R. Johnson

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The IRS should endeavor to treat similarly-situated taxpayers similarly, but does this aspiration rise to the level of a judicially enforceable duty? If the IRS takes a position on Taxpayer B that is correct under the law but is inconsistent with a position the IRS took on similarly-situated Taxpayer A, should the IRS’s position on Taxpayer B fail simply because of the inconsistency? These questions implicate important themes, such as fairness, the rule of law, separation of powers, administrative exigencies, the role of common law making in a highly positivistic system, and the sustainability of legal regimes.

A constitutional standard …

Regulatory Adaptation In Fractured Appalachia, Hannah J. Wiseman

Scholarly Publications

America faces a growing energy challenge. We require energy for our every activity, yet we increasingly recognize that there are no easy energy solutions. Reliance upon traditional fossil fuels – many of them imported – jeopardizes our national security and releases harmful emissions, yet renewable energy technologies require high capital investments and have environmental impacts of their own. As we address this challenge and move toward a more sustainable energy future, “bridge fuels” like domestically-produced natural gas offer a near-term compromise between renewables and traditional fossil fuels. A growing quantity of bridge fuel in the form of domestic natural gas …

An Overview Of Tsca, Its History And Key Underlying Assumptions, And Its Place In Environmental Regulation, David Markell

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No abstract provided.

Who Decides Who Decides: Federal Regulatory Preemption Of State Tort Law, Mark Seidenfeld

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No abstract provided.

Greenhouse Gas Regulation In Canada: Constitutional And Policy Dimensions, Shi-Ling Hsu, Robin Elliot

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Canada’s greenhouse gas emissions have risen dramatically since the 1997 negotiation of the Kyoto Protocol, and that rise has continued through Canada’s 2002 ratification of the Protocol. Along with economic dislocation, constitutional barriers to regulation have sometimes been cited as the reason for caution in regulating greenhouse gases. This article critically evaluates the constitutional arguments and examines the policy considerations surrounding various regulatory instruments that might be used to reduce greenhouse gases. We conclude that the Canadian constitution does not present any significant barriers to federal or provincial regulation and that policy considerations strongly favour the use of two instruments: …

Saving Lives Through Administrative Law And Economics: A Response, Shi-Ling Hsu

Scholarly Publications

No abstract provided.

Why Agencies Act: A Reassessment Of The Ossification Critique Of Judicial Review, Mark Seidenfeld

Scholarly Publications

No abstract provided.

Give The Tax Court Transfer Power And Plenary Civil Tax Jurisdiction, Steve R. Johnson

Scholarly Publications

A recent decision again raises questions about the powers that the Tax Court does and should possess. In Mobley v. Commissioner, No. 07-2019 (6th Cir. July 8, 2008), Doc 2008-14970, 2008 TNT 132-13, the Sixth Circuit affirmed a procedural decision of the Tax Court. The Tax Court dismissed a petition because it lacked jurisdiction, and it rejected the taxpayers’ request to transfer the case to a district court. The Tax Court concluded, and the Sixth Circuit agreed, that the Tax Court lacks transfer power. Under 28 U.S.C sections 1631 and 610, the power to transfer cases is conferred only upon …

The Identifiability Of Bias In Environmental Law, Shi-Ling Hsu

Scholarly Publications

The identifiability effect is the human propensity to have stronger emotions regarding identifiable individuals or groups than for abstract ones. The more information that is available about a person, the more likely this person’s situation will influence human decisionmaking. This human propensity has biased law and public policy against environmental and ecological protection because the putative economic victims of environmental regulation are usually easily identifiable workers that lose their jobs, while the beneficiaries—people who avoid a premature death from air or water pollution, people who would be saved by medicinal compounds available only in rare plant and animal species, and …

Administrative Law's Federalism: Preemption, Delegation And Agencies At The Edge Of Federal Power, Mark Seidenfeld, Brian Galle

Scholarly Publications

This Article critiques the practice of limiting federal agency authority in the name of federalism. Existing limits bind agencies even more tightly than Congress. For instance, although Congress can regulate to the limits of its commerce power with a sufficiently clear statement of its intent to do so, absent clear congressional authorization an agency cannot, no matter how clear the language of the agency’s regulation. Similarly, although Congress can preempt state law, albeit only when its intent to do so is clear, some commentators have read a line of Supreme Court decisions to hold that agencies cannot, except upon Congress’s …

In Search Of Robin Hood: Suggested Legislative Responses To Kelo, Mark Seidenfeld

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No abstract provided.

Note, Searching For Balance In The Aftermath Of The 2006 Takings Initiatives, Hannah J. Wiseman

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The partial regulatory takings movement seeks to compensate private landowners when regulations diminish their land values. This movement has grown in recent years, particularly at the state level. Scholars have focused thus far on the cost of compensation and its effect on the regulations that governments enact or enforce. In addition to exploring those concerns, this Note argues that partial regulatory takings regimes threaten to constrain residents’ ability to influence their communities’ growth and character. The greatest impact could fall on low-income communities, many of which contain disproportionate levels of undesirable land uses and lack adequate financial resources to influence …