Steve Dixon Comments on Treasury Policy Statement on Subregulatory Guidance in Bloomberg

"Treasury 'Limiting Its Own Power' to Fight Taxpayers in Court"

Bloomberg

03.07.2019

Steve Dixon commented on the recent announcement by the Treasury Department that it won't argue that subregulatory guidance such as notices, revenue procedures, and revenue rulings "has the force and effect of law" when arguing cases before the U.S. Tax Court. While Treasury pledges not to invoke the deference doctrines under Chevron and Auer for interpretations set forth in subregulatory guidance, there are a couple of notable carve-outs, Dixon added, including for cases in refund jurisdictions and for cases where the government argues for deference to its position on brief. "It is possible for the government to come in and make an argument in litigation that this is the proper interpretation of a particular piece of guidance or regulation" even though that interpretation has never been made in another public document. Dixon also commented on the remark in the policy statement that Treasury will not take positions in court that are inconsistent with subregulatory guidance, which taxpayers might point to because "[t]axpayers are often arguing that what the IRS is doing is inconsistent with other guidance."