TaxProf Blog

Editor: Paul L. Caron, Dean
Pepperdine University School of Law

Thursday, October 14, 2004

ABA Tax Section Task Force on Judicial Deference Publishes Its Report

ABA logoThe ABA Tax Section Task Force on Judicial Deference (comprised of 6 tax practitioners (including Irving Salem (Latham & Watkins LLP), Chair) and two tax professors (Ellen Aprill (Loyola-L.A.) & Linda Galler (Hofstra)) has published its 61-page report. Here are its two conclusions:

• The Task Force believes that this set of recommendations reasonably accommodates both the traditional approach to judicial deference to tax interpretations and recent Supreme Court developments. It establishes a hierarchy based upon the authority of an administrative pronouncement and the degree of deliberation the IRS gives the pronouncement. These recommendations not only honor the case law, but also present a sufficiently clear cut, and thus workable, set of rules for courts to apply.

• The case law, from both the Supreme Court and the lower federal courts, reflects many uncertainties and inconsistencies — whether Chevron or National Muffler supplies the standard for tax law; whether or when Chevron or Skidmore applies; the extent to which legislative and interpretive tax regulations should be judged differently; whether Seminole Rock has continuing viability; and how informal IRS guidance and litigating positions should be treated. While this confusion is unfortunate, it offers the challenge and opportunity to set a course that is most likely to lead to the best possible administration of the tax laws.

ABA Tax Section, Scholarship | Permalink

TrackBack URL for this entry:

Listed below are links to weblogs that reference ABA Tax Section Task Force on Judicial Deference Publishes Its Report: