Christopher Walker (Ohio State), Taking Administrative Law to Tax Exceptionalism (Jotwell), reviewing Kristin Hickman (Minnesota), Administering the Tax System We Have, 63 Duke L.J. 1717 (2014):
I’ll focus on the Duke Law Journal’s Taking Administrative Law to Tax Symposium, which was published in May. There is a lot to like about this symposium, starting with a refreshingly succinct foreword from Andy Grewal and followed by articles from Ellen Aprill, Bryan Camp, Kristin Hickman, Steve Johnson, Leandra Lederman, and Lawrence Zelenak. [Video of the symposium is available here, and the written issue is here.]
As the title suggests, the symposium focuses on tax exceptionalism, or “tax myopia” as Paul Caron coined the phenomenon two decades ago [Tax Myopia, or Mamas Don't Let Your Babies Grow Up to be Tax Lawyers, 13 Va. Tax Rev. 517 (1994)]. Tax exceptionalism is the misperception that tax law is so different from the rest of the regulatory state such that general administrative law principles do not apply. But tax exceptionalism is dying—something my tax colleague Stephanie Hoffer and I document in a forthcoming article on the Tax Court and the Administrative Procedure Act (“APA”). In Mayo Foundation v. United States, for instance, the Supreme Court refused to apply a standard less deferential than Chevron to the Treasury Department’s interpretation of the tax code, noting that it was “not inclined to carve out an approach to administrative review good for tax law only.” That same year (2011), in Cohen v. United States, the D.C. Circuit held that the judicial review provisions of the APA apply to IRS notices: “The IRS is not special in this regard; no exception exists shielding it—unlike the rest of the Federal Government—from suit under the APA.”
It is thus only fitting that Professor Hickman contributed to the symposium. After all, as a scholar at the intersection of administrative law and tax, she has spent nearly a decade calling for the reconsideration of tax exceptionalism.
She wrote the foundational article in 2006 for the Court’s 2011 Mayo decision, filed an amicus brief in Mayo, and published a terrific article (covered by Jotwell) on Mayo’s aftermath. Similarly, she wrote a number of articles (e.g., here and here) that formed the basis for the Cohen decision as well as filed an amicus brief in that case.
In her symposium contribution, Professor Hickman turns her attention to one of the most compelling policy reasons for treating tax differently: the tax code’s revenue-raising function. As she explains (P. 4), “courts and scholars often invoke the importance of revenue raising to explain or defend tax exceptionalism.” To test this justification, Professor Hickman has engaged in a comprehensive empirical project to assess the regulatory activity of the Treasury Department and IRS. This is an ambitious and important project, and in this article she provides a preliminary account of one relatively narrow context: proposed, temporary, and final regulations promulgated by the Treasury’s Office of Tax Policy (in consultation with the IRS) from the beginning of 2008 through the end of 2012. ...
[W]with tax exceptionalism and Professor Hickman’s work as a jumping-off point, administrative law scholars can better consider other forms of regulatory exceptionalism. After all, such exceptionalism is not unique to tax, as Professor Zelenak underscores in his symposium contribution—a provocative, partial defense of tax exceptionalism. Citing the recent study by Richard Levy and Robert Glicksman on agency-specific precedents (to which, of course, Professor Hickman penned a response), Professor Zelenak explains (pp. 1910-11) that agency-specific deviations from general administrative law principles have been documented in at least four regulatory contexts in addition to tax: environmental protection, federal communications, national labor relations, and social security. Intellectual property seems like another obvious example. Professor Hickman’s research shows that, aside from issues of congressional intent and acquiescence to exceptionalism (or deviation), scholars should scrutinize more closely the underlying bases for regulatory exceptionalism. And her scholarship provides a helpful roadmap to investigate such exceptionalism in other regulatory contexts.