Unpacking the Force of Law

In its 2011 decision in Mayo Foundation for Education and Research v. United States,' the Supreme Court rejected tax exceptionalism, holding that the general administrative law standards articulated in United States v. Mead Corp. and Chevron USA Inc. v. Natural Resources Defense Council, Inc. govern judicial review of U.S. Department of the Treasury ("Treasury") regulations. In so doing, the Court admonished, "[W]e are not inclined to carve out an approach to administrative review good for tax law only." A few months later, the D.C. Circuit, sitting en banc in Cohen v. United States, reinforced the policy of administrative law uniformity in applying Administrative Procedure Act ("APA") provisions to Internal Revenue Service ("IRS") guidance: "The IRS is not special in this regard; no exception exists shielding it-unlike the rest of the Federal government-from suit under the APA." Most recently, in United States v. Home Concrete & Supply, LLC, the Supreme Court considered the validity of a Treasury regulation that contradicted an earlier Supreme Court interpretation of the Internal Revenue Code ("I.R.C.") and that was issued initially in temporary form, in the midst of ongoing litigation, with only postpromulgation notice and comment. While the Court decided that the meaning of the statute was clear, and thus avoided several administrative law questions raised by the briefs and the courts below, the Home Concrete litigation and its many administrative law issues were closely followed by members of the tax bar. Taken together, these cases have given tax lawyers a fresh awareness of administrative law doctrine as relevant to their field.