Hickman on D.C. Circuit's Intermountain Decision

Kristin E. Hickman (Minnesota) offers her thoughts on yesterday's decision in Intermountain Insurance Service of Vail LLC v. Commissioner, No. 10-1204 (D.C. Cir. June 21, 2011):

Much like the Federal Circuit, the D.C. Circuit applied Chevron analysis to conclude that § 6501 is ambiguous and that Treasury's interpretation of that provision is reasonable. Because the statute is ambiguous, the Supreme Court's decision in Colony does not foreclose Treasury's interpretation. Whether or not the temporary regulations were procedurally flawed for APA purposes, Treasury finalized them using notice and comment. Treasury's “searching consideration” of the sole comment received in that process, as expressed in the preamble to the final regulations, demonstrated a sufficiently “open mind” to “cure” any procedural problem posed by the use of temporary regulations. (The court did not address at all whether or not the use of temporary regulations without notice and comment complies with the APA. Instead, the court only addressed the argument that the final regulations were procedurally flawed because they had been initially adopted as temporary regulations without notice and comment and the agency failed to keep an open mind in promulgating the final regulations.)

Update: For more, see Miller & Chevalier's Tax Appellate Blog.

Prior TaxProf Blog coverage:

• Johnson: Intermountain, Interpretive Regulations, and Brand X (May 20, 2010)
• Johnson: Intermountain and the Importance of Administrative Law in Tax Law (Aug. 25, 2010)
• Federal Circuit Exacerbates Split on Overstatement of Basis and 6-Year SOL (Mar. 12, 2011)
• Harvard Law Review on Intermountain (Mar. 24, 2011)