Is the JCT Blue Book More Persuasive than a Law Review Article? (4/27/21)

Tax procedure fans will know the key role played by the Joint Committee on Taxation, here and Wikipedia here.  It is a nonpartisan committee with deep staff to serve the important role of advising Congress, principally through its tax writing committees (House Ways and Means and Senate Finance) on tax legislation.  It is fair to say that the JCT is deeply involved in the nooks and crannies of major tax legislation.  After major tax legislation, the JCT will often prepare a report, referred to as the Blue Book, summarizing the tax legislation, often adding some nuance not addressed directly in the text of the legislation.  In the past, the Blue Book was frequently used by the IRS, the public and the courts as a guide for interpretation of the legislation.  Although the Blue Book is not legislative history because published after the legislation, it is about as close as it gets to legislative history.  Nevertheless, Justice Scalia claimed the Blue Book was no more relevant and persuasive than a law review article.  United States v. Woods, 571 U.S. 31,47-48 (2013).  The Tax Court adopted the key language from this quote.  Rafizadeh v. Commissioner, 150 T.C. 1, 6. n4 (2018) (“the Blue Book is not legislative history but, ‘like a law review article, may be relevant to the extent it is persuasive, ’"quoting United States v. Woods, 571 U.S. 31, 47 2013)).  Deference fans will note that, as Justice Scalia explained it, that sounds like Skidmore deference.  Skidmore v. Swift & Co., 323 U.S. 134 (1944).  Skidmore may be no deference at all.  See Really, Skidmore "Deference?" (Federal Tax Procedure Blog 5/31/20; 6/3/20), here.

Yesterday, I was rooting around in the Attorney General’s Manual on the Administrative Procedure Act (1947), web format here and pdf format here.  The APA was enacted in 1946.  On further research, I found that the Supreme Court had often “deferred” to the Manual.  E.g., Kisor v. Wilkie, 588 U.S. ___, 139 S.Ct. 2400, 2420 (2019) (plurality opinion, “some deference because of the role played by the Department of Justice in drafting the legislation.”; citing Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U. S. 519, 546 (1978)); Steadman v. SEC, 450 U.S. 91, 102 n. 22 (1981) (also citing Vermont Yankee); and see also Robin J. Arzt, Recommendations for a New Independent Adjudication Agency to Make the Final Administrative Adjudications of Social Security Act Benefits Claims, 23 J. Nat'l Ass'n  Admin. L. Judges 267, 330-31 (2003) (citing Vermont Yankee and Steadman and stating that the Manual is part of the legislative history of the APA;” the statement of its status as legislative history is perhaps hyperbole in today’s refined notions of legislative history, but it does come close).

So here are my questions:

1. If the Attorney General Manual drafted shortly after enactment by a party that will be involved in litigation about the APA is entitled to deference, why would not the Blue Book drafted shortly after enactment by a nonpartisan staff intimately involved in the tax legislation process not be entitled to deference?

2. Indeed, on the subject of deference, if courts will defer to agencies on the meaning of ambiguous statutory text (e.g., Chevron deference), why would a court not defer to the Blue Book on similar bases (reasonable interpretations within the scope of the ambiguity in statutory text by an expert party that, unlike agencies, is closer to the legislative process and is not a party in disputes over the meaning of the statutory text)?

For more on the JCT, see George K. Yin, How Codification of the Tax Statutes and the Emergence of the Staff of the Joint Committee on Taxation Helped Change the Nature of the Legislative Process, 71 Tax L. Rev. 723 (2018); and Clint Wallace, Congressional Control of Tax Rulemaking, 71 Tax L. Rev. 179 (2017).