Guest Post on Procedurally Taxing Blog and Jack Cummings' on the APA Legislative-Interpretive Distinction (6/15/22; 6/16/22)

I posted a guest blog on the Procedurally Taxing blog site:  More On The Confusion Surrounding The Difference Between Legislative And Interpretive Rules (Procedurally Taxing Blog 6/14/22), here. The posting arose from a comment I made on the prior day’s PT blog entry by Les Book, Update on CIC Services And More On The Legislative vs Interpretive Rule Difference (Procedurally Taxing Blog 6/13/22) here. Rather than approve my comment to that earlier blog, Les suggested I offer it as a guest blog rather than a comment. So, that was the genesis of my guest blog. I thought Tax Procedure Blog readers might like to review the PT Blog entry.

I recommend Les Book’s predicate blog as context for my guest blog. In referring PT readers to my article, Les commends Jasper L. (Jack) Cummings' Letter of 4/7/22 to Editor, Tax Notes (4/18/22), here (Copyright 2022, reprinted with permission of the author and Tax Analysts).  (See Jack's bio here.)  Jack is a prolific commentator in this area of the law; over the years, Jack has substantially contributed to my education and I have cited him both in my Federal Tax Procedure Book and in articles.  I too commend Jack’s letter succinctly refuting the claim by many that penalty implications from interpretations make the interpretations legislative rather than interpretive.  One of the key points in Jack’s argument succinctly states the distinction between the APA categories of legislative rules (requiring notice and comment regulations) and interpretive rules (not requiring notice and comment regulations but often promulgated with notice and comment regulations). Here is the key discussion:

             The straightforward way to determine whether Congress has granted an agency the power to make the law is to look at the statute. If the statute says, in effect, “We’re unsure what the rule should be, so you write it,” then the rule is legislative. If the statute says, for example, that a taxpayer can deduct ordinary and necessary business expenses, and then the agency wrote a regulation stating its views on those words, those views would normally be considered to be interpretive. Many courts have shown that they’re perfectly capable of accepting or rejecting the IRS view on the meaning of those words. Put another way, if a statute states a standard that a court can interpret, then the agency’s view on that meaning is interpretive and a rule stating that view need not be issued with notice and comment.

Exactly!  Jack's statement is a variation of the distinction made before and after the enactment of the APA and still carried forward by those who are not confused by the false claims that rules interpreting ambiguous statutory text can be legislative in character rather than interpretive in character for APA purposes.  I cover all of this in my article in a lot more words.

Added 6/16/22 2:15pm:

Professor Kristin E. Hickman, bio here, has written a vigorous response in opposition to my guest post on the Procedurally Taxing Blog and my predicate writings leading to that blog.  Kristin E. Hickman, It’s Time To Let Go:  Treasury Regulations Are Not Interpretative Rules (Procedurally Taxing Blog 6/16/22), here.  Professor Hickman and I disagree.  I address all of her claims points in the article.