Paul L. Caron

Wednesday, May 8, 2013

Tobin Reviews Hickman's Unpacking the Force of Law

JotwellDonald Tobin (Ohio State), Temporary Treasury Regulations and IRB Guidance in a Post-Mead and Mayo World (Jotwell) (reviewing Kristin Hickman (Minnesota), Unpacking the Force of Law, 66 Vand. L. Rev. 465 (2013)):

With the Supreme Court’s recent decision in Mayo Foundation for Education and Research v. United States, there is a huge void of scholarship regarding how administrative law principles apply in the tax context.  Kristin Hickman helps fill that void by continuing her work at the intersection of administrative law and tax procedure in her recent Vanderbilt Law Review article “Unpacking the Force of Law,” which deals with the treatment of temporary treasury regulations and IRB guidance after the Supreme Court’s decisions in Mayo and United States v. Mead Corp. ...

Hickman’s work here is insightful, and she clearly and painstakingly explains the application of administrative law principles in the tax context.  Her conclusions naturally come from her argument that temporary Treasury regulations and IRB guidance have the “force of law,” and her work here is incredibly important.  The Treasury has routinely argued that the APA does not apply in the tax context.  Hickman’s work convincingly argues that it does and also sets out the significant mess that will be caused if Treasury does not ensure that its regulatory practices comply with the APA.  Hickman’s work reminds us all, and most importantly the Treasury, that tax exceptionalism does not apply in the administrative law context and that the Treasury should take action to ensure that its promulgation of temporary Treasury regulations (and maybe IRB guidance) comply with the APA.

Scholarship, Tax | Permalink

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