Steve Dixon Comments on Auer Deference in Tax Notes Today

"Auer Deference Survives, But 'Neutered' and 'Zombified'"

Tax Notes Today

06.27.2019

Steve Dixon commented on the U.S. Supreme Court upholding the Auer doctrine and ruling that the IRS and other agencies are still entitled to deference in interpreting their own regulations, albeit in a more limited capacity. In Justice Kagan's opinion in Kisor v. Wilkie, the Court outlined several things a court must consider before deferring to an agency's interpretation of its own regulation. Dixon said one thing tax practitioners should note about Kisor is the Court's ruling that not all reasonable interpretations of ambiguous regulations should get Auer deference, and that to be entitled to such deference an interpretation must implicate the agency's "substantive expertise." The majority at one point said an agency's expertise is "often of a scientific or technical nature," and Dixon said it's not clear what that means in the tax context. "Treasury, of course, brings tax expertise to bear, but there are arguably limits on that expertise," Dixon said.