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Unpublished Paper
The Fight Over “Fighting Regs” and Judicial Deference in Tax Litigation
ExpressO (2011)
  • Leandra Lederman

Courts typically accord some level of deference to agency interpretations of statutes. Should that change for a “fighting” regulation that an agency has issued during the course of related litigation? The Treasury Department has done that many times, as the 2011 U.S. Supreme Court decision in Mayo Foundation for Medical Education and Research v. United States and a series of equally recent Court of Appeals cases highlight.

To answer the question of how fighting regs and other litigation-motivated tax guidance should be treated, the Article first analyzes the law on judicial deference to tax authorities generally, making sense of the confused tax-specific historical approach. It then considers the context of rulings issued during pending litigation. The Article explains that, following the 2011 decision in Mayo, deference under the famous Chevron case applies to all Treasury regulations issued in accordance with the requirements of the Administrative Procedure Act. It further argues that Revenue Rulings—formal guidance issued by the Internal Revenue Service—should receive deference under Skidmore v. Swift & Co., in accordance with United States v. Mead Corp. and Mayo. The Article proposes that regulations and rulings issued during the controversy receive the applicable level of deference (Chevron or Skidmore), but that the deference inquiry take into account the retroactivity and surprise issues raised by the timing of the guidance.

  • Judicial deference,
  • fighting regs,
  • Mayo,
  • Chevron,
  • Skidmore,
  • Mead,
  • Intermountain,
  • temporary regulations,
  • revenue rulings
Publication Date
August 22, 2011
Citation Information
Leandra Lederman. "The Fight Over “Fighting Regs” and Judicial Deference in Tax Litigation" ExpressO (2011)
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