Friedman: The Effect of Mayo Foundation on Judicial Deference to Tax Authority Guidance

Matthew H. Friedman (KPMG, New York), Reviving National Muffler: Analyzing the Effect of Mayo Foundation on Judicial Deference as Applied to General Tax Authority Guidance, 107 Nw. U. L. Rev. Colloquy 115 (2012):

This Essay explores the various standards of deference the Supreme Court has applied to general authority guidance over the past sixty-eight years and concludes that the Court should revive National Muffler as the dominant standard in the tax context. Part I discusses the role that deference plays in deciding tax-related issues in court, specifically presenting the current application of final Treasury regulations for background. Part II examines the path the Supreme Court followed in establishing and applying judicial deference from Skidmore through Mayo. Part III discusses the necessity of the Mayo decision, analyzes its holding, addresses the weaknesses of the existing standard for general authority guidance, and proposes a broad application of the former tax-specific standard from National Muffler. Part IV offers concluding remarks.