Andy Grewal (University of Iowa – College of Law) has posted Tax Regulations After Loper Bright on SSRN. Here is the abstract:
After decades of uncertainty, the Supreme Court, in Mayo v. United States, finally resolved a conflict over the proper deference standard for tax regulations. The Chevron doctrine, not the National Muffler doctrine, would govern whether a tax regulation properly interpreted a statute.
This period of calm would last for only a little over a decade. Through Loper Bright, the Court has now killed any form of judicial deference to agency regulations. Loper Bright upsets not only Chevron, but nearly a century’s worth of tax-specific precedents that extended deference to Treasury regulations.
This Article, prepared for the Michigan State Law Review’s Tax & Policy Symposium, explores the new administrative review framework for tax regulations. It divides the analysis between general authority and specific authority regulations. They will now face markedly different review standards. Though the sky will not fall, the new review frameworks pose difficult interpretive challenges that will take decades to resolve.