Paul L. Caron

Wednesday, June 3, 2020

Morse & Shay: Altera — Tax Law In An Administrative Law Wrapper

Susan C. Morse (Texas) & Stephen E. Shay (Harvard), Pending Cert Petition in Altera: Tax Law in an Administrative Law Wrapper:

AlteraEach day of the COVID crisis we see unprecedented administrative action to respond to the pandemic. At the same time, litigants continue to ask courts to consider whether administrative agencies have exceeded their authority, sometimes relying on claims of deficient process. One such case is Altera v. Commissioner, in which the taxpayer filed a cert petition that asks the Supreme Court to review a Ninth Circuit decision upholding a tax regulation. The government submitted its brief in response on May 14, and the Court will presumably consider the case in conference before its summer recess. The taxpayer has not filed a reply as of this writing.

In its brief, the government stays squarely on the administrative law playing field laid out by the taxpayer’s petition. The government’s reply takes on — and, we think, successfully defeats — the core premise that underlies the taxpayer’s administrative law arguments. ...

The issue before the Supreme Court is an administrative law issue. A necessary premise of Altera’s argument is that Treasury started with, but then abandoned, a commitment to empirical comparables analysis for its rule covering stock-based compensation in QCSAs. And as the government explains, this premise does not hold up.

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