Paul L. Caron

Monday, October 17, 2022

ABA Tax Section 2022 Fall Meeting

The ABA Tax Section held an in person 2022 Fall Tax Meeting in Dallas last week (program). A highlight was the Teaching Taxation program on Classification of Tax Regulations and the APA:

ABA TaxFor many administrative agencies, external sources of law, such as the Administrative Procedure Act, have played a key role in rulemaking. The APA has had an increasingly important role in tax administration. One key aspect is its relationship to tax regulations. Most tax regulations that interpret statutory text have historically been viewed by the tax community as interpretive rules under the APA, thus not requiring notice and comment (although tax regulations have historically been issued with notice and comment). One panelist reads some recent Tax Court and circuit court cases to have implicitly or explicitly held that regulations interpreting statutory text are considered legislative for APA purposes; another panelist does not read those cases as authoritative or persuasive on the issue. The current state of this issue will be discussed to inform the audience as to the issues involved. In addition, regulatory practices have changed significantly over time, yet litigants have raised procedural challenges to older regulations. This panel will consider the historical approach to tax regulations, review the arguments concerning the proper classification of those regulations, and address cases that have struggled to situate tax regulations under the APA. In addition, the panel will address the significance for tax administration of West Virginia v EPA, where the Supreme Court struck down emission caps and relied on the “major questions” doctrine, which requires agencies to demonstrate “clear congressional authorization” when taking actions of political or economic significance.

Chair: Michelle Drumbl (Washington & Lee)
Moderator: Leslie Book (Villanova; Google Scholar)

  • Kristin Hickman (Minnesota; Google Scholar)
  • Gilbert Rothenberg (American)
  • Jack Townsend (Houston)

Other Tax Profs with speaking roles included:

  • All Taxpayers Have a Stake in the Litigation of Pro Se Taxpayers: Samantha Galvin (Denver), Jeff Gold (South Texas) (moderator), Caleb Smith (Minnesota), Christine Speidel (Villanova; Google Scholar), Emily Yaun (Georgia State)
  • Do We Need a Gas Tax? Examining Fuel Taxes, Energy Credits and Tax Policy: Annette Nellen (San Jose State; Google Scholar) (moderator)
  • Panel Discussion Presented by the State Bar of Texas: Damon Rowe (Texas A&M)
  • Using Experts in State Tax Matters: Richard Pomp (Connecticut; Google Scholar

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