Document Type

Article

Publication Date

2025

Abstract

How much freedom does the IRS have to interpret the code?

In recent years, the Supreme Court and lower courts have put significant barriers in front of the IRS’s ability to interpret the code as it wishes. The question is to what extent the IRS can live with the barriers of textualism, nondeference, the major questions doctrine, nondelegation, and the Administrative Procedure Act. Of these, textualism seems to be the most problematic because it is the hardest to fix. The major questions doctrine rarely applies to statutory tax cases. Nondeference based on Loper Bright can be restricted by Congress adding delegations, and the Court has refrained from strengthening the nondelegation doctrine. The APA problem can be addressed by following proper notice and comment, and by procedural improvements.

Comments

Reprinted with the permission of Tax Analysts.

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