Updates for Prior Blog Postings (12/31/21)

Starting 5/11/20, I will use this page to link to blog posts that I have updated with subsequent information that I do not feel is important enough to warrant a new blog post.  The table below is in reverse chronological order of the postings.  In the title of this page, I will show the date of the last update.

  

Date	Blog Post	Update Info
12/31/21	11th Cir. Invalidates Proportionate Sharing Regulations As Procedurally Arbitrary and Capricious for Failing to Address a Significant Comment (12/30/21; 12/31/21), here	Add JAT Comment # 4 on difference between arbitrary and capricicious / State Farm review (also called hard look review) and Chevron review,
12/30/21	Court Enters Stipulated Order to Prevent Alienation of Swiss Account Holdings (12/27/21; 12/30/21),here	Added Order in Schwarzbaum Granting Motion to Stay
12/21/21	Fifth Circuit Affirms Agency Best Interpretation of Statute, thus Not Applying Chevron (12/20/21; 12/21/21), here	Added JAT (i) Note ¶ 3 regarding potential issues with lenity ambiguity and Chevron ambiguity and (ii) Note ¶ 4 to discuss a related takings clause issue
8/3/21	Chevron and Interpreting Through Agency Adjudications (8/28/21; 9/3/21), here	Added discussion of sloppy thinking in Afanador v. Garland, ___ F.4th ___, 2021 U.S. App. LEXIS 25918 (9th Cir. Aug. 27, 2021)
8/21/21	The Impact of Chevron Deference is Exaggerated (8/19/21; 8/21/21), here	Added to the discussion an issue regarding equipoise and line-drawing.
8/20/21	The Impact of Chevron Deference is Exaggerated (8/19/21; 8/20/21), here	Added a discussion to indicate a possible, I think probable, reading of  Judge Lauber’s opinion as not deferring to the agency interpretation.
8/19/21	Tax Court Holds that Collected Proceeds for Whistleblower Awards under § 7623(b) Do Not Include Unrelated Collections (8/18/21; 8/19/21), here.	Added two comments (comments 4 & 5)
4/9/21	More Thoughts on APA and Legislative and Interpretive Regulations Inspired by Recent Cases (4/8/21; 4/9/21), here	Extended the discussion in the original posting.
3/19/21	Burden of Persuasion As to Proper Delegated Authority for Statutorily Required IRS Action (Here Notice of Deficiency) (3/17/21; 3/19/21), here	Added at bottom some musings on whether a presumption might apply to the § 6751(b) written supervisor approval issue
1/12/21	Deloitte and Tax Analysts Open Tax Analysts Library to Public Without Subscription (1/11/21; 1/12/21), here	Added some other free web research resources that I find helpful
12/10/20	Court Invalidates IRS Attempt by Rev Proc to Change Legislative Regulation (8/5/19; 12/10/20), here.	Added JAT Comment #5 to include the Bullock Court’s (Judge Morris) marvelous discussion of the distinction between legislative (which must be by notice and comment regulation) and interpretive rules (which may be by notice and comment regulation but generally are issued as subregulatory guidance.
11/25/20	Tax Court (Judge Lauber) Issues Significant Transfer Pricing Decision in Coca-Cola; Burden of Proof Issues (11/19/20; 11/21/20), here.	Added Comment 3 to add the need to constrict the range
11/21/20	Tax Court (Judge Lauber) Issues Significant Transfer Pricing Decision in Coca-Cola; Burden of Proof Issues (11/19/20; 11/21/20), here.	Added some nuance probably implicit in original blog post and provide some quotes from the opinion
11/6/20	FTPB 2020 Update 06 – Presumptions in Litigation (11/6/20), here.	Added Rule 301 as revised without change in material substance.
10/22/20	FTPB 2020 Update 05 - New IRM Summary of the § 6751 Written Supervisor Approval Requirement (10/22/20), here.	Provided new IRM provision
9/23/20	FTPB 2020 Update 04 - Correction on GATT Corporate Overpayment Interest (9/23/20), here	Corrected reference to GATT
9/2/20	FTPB 2020 Update 03 – Central IRS Web Site for BBA Centralized Partnership Audit Regime (9/2/20), here.	Link to Central web site
8/16/20	True or False: "Treasury and the IRS do not have a great history of complying with APA procedures" (8/5/20; 8/16/20), here.	In the original blog post I address two issues:  (i) Treasury/IRS history of complying with APA; and (ii) whether Chevron was always controversial.  I have amended the blog post to show that, while Chevron was controversial among some academics shortly after it was decided, it was not controversial on the Supreme Court until relatively recently (after 2010).
8/15/20	FTPB 2020 Update 02 - Revised Editions of Federal Tax Procedure Book for Technical Corrections (8/14/20; 8/15/20), here.	Advised that I posted to SSRN revised editions of the Federal Tax Procedure Book 2020 to make certain technical corrections.  The revised editions are available for download.
8/7/20	True or False: "Treasury and the IRS do not have a great history of complying with APA procedures" (8/5/20; 8/7/20), here.	Added some nuance on the trajectory of the controversy about Chevron deference.
8/2/20	The Unspotted Issue in an Audit; Ethics and Crimes (7/24/20; 8/2/28), here	Added a discussion (par. 7) discussion a practitioner’s comments.
7/29/20	The Unspotted Issue in an Audit; Ethics and Crimes (7/24/20; 7/29/28), here	Added 3 more comments (pars. 4-6) relating to the deficiency calculation for the Tax Court
7/28/20	The Unspotted Issue in an Audit; Ethics and Crimes (7/24/20; 7/24/28), here	Added 3 comments (pars. 1-2 relating to the claim for refund example and adding one related to analogous IRS conduct (par. 3)
7/24/20	Distinction Between APA Arbitrary and Capricious Review and Chevron Interpretive Reasonableness Review (6/19/20; 7/24/20), here	Added (at bottom) discussion or and quote from Grace v. Barr, ___ F.3d ___ (D.C. Cir. 7/17/20), here, that, despite some erroneous readings of a footnote in Judulang v. Holder, 565 U.S. 42, 52 n.7 (2011), the Chevron review and the 706/State Farm review are different analytical frameworks.
7/13/20	Baude NYT Opinion Piece on Originalism and My Questions (7/10/20), here	Added comment 2 directing readers to a particular Baude Volokh conspiracy blog offering, Reminder: The United States Code is not the law (The Volokh Conspiracy 5/15/17), here.
7/7/20	Highly Recommended Article on Chevron and History of Deference (7/1/20; 7/7/20), here	Added in par. 6 a discussion of judicial and agency interpretation as interpretive activity rather than legislative activity, citing Barr v. AAPC, __ U..S. ___, ___ S.Ct. ___ (2020), here.
7/6/20	Federal Circuit Holds that Refund Suit for Overpayment Interest is in the Federal Circuit.(7/4/20; 7/6/20), here	Add a link to Bob Probasco, The Tide Keeps Going Out, Carrying Overpayment Interest Suits Away from District Courts (Procedurally Taxing Blog 7/6/20),
7/3/20	Highly Recommended Article on Chevron and History of Deference (7/1/20; 7/7/20), here	Added a quote to my article regarding the parallel of judicial and agency interpretations.
6/23/20-6/26/20	UT Law Dean Farnsworth on English and Volokh Conspiracy Guest Blogs (6/22/20; 6/26/20)	Added updates on Dean Farnsworth series on his book on Classic English Style.
6/24/20	Distinction Between APA arbitrary and capricious review and Chevron Interpretive Reasonableness Review (6/19/20; 6/24/20), here	Added a discussion of two Tax Court Judge Kerrigan opinions conflating the distinction between arbitrary and capricious review and Chevron review.
6/24/20	Distinction Between APA arbitrary and capricious review and Chevron Interpretive Reasonableness Review (6/19/20; 6/24/20), here	Added a comment that I posted to Susan C. Morse and Stephen E. Shay (Guest Bloggers), In Altera Reply Brief, Taxpayer Doubles Down on Flawed Argument That the Government Changed Its Tune (Procedurally Taxing Blog 6/11/20), here
6/24/20	Supreme Court Case on Statutory Interpretation (6/16/20; 6/24/20), here	Added additional reading material, including Anita S. Krishnakumar, Three Lessons About Textualism from the Title VII Case, by Anita S. Krishnakumar (Notice & Comment 6/24/20)
6/16/20	Supreme Court Case on Statutory Interpretation (6/16/20; 6/24/20), here	Added a discussion of Judge Wood’s opinion in Illinois v. Wolf, ___ F.3d ___, ___ (7th Cir. 6/10/20), discussing dueling dictionaries
5/26/20	Tax Court Sustains Key Conservation Easement Regulation But Wobbles on Legislative/Interpretive Regulation Issue (5/14/20; 5/18/26), here	Changed the description of Correll case in paragraph beginning “Yet” as indicated in the redline.
5/18/20	Tax Court Sustains Key Conservation Easement Regulation But Wobbles on Legislative/Interpretive Regulation Issue (5/14/20; 5/18/26), here	Added Comment 4 on dicta.
5/17/20	Tax Court Sustains Key Conservation Easement Regulation But Wobbles on Legislative/Interpretive Regulation Issue (5/14/20; 5/18/26), here	Added discussion in Comment 3 on deference.
5/15/20	Tax Court Sustains Key Conservation Easement Regulation But Wobbles on Legislative/Interpretive Regulation Issue (5/14/20; 5/18/26), here	Added link in Comment 1 to Procedurally Taxing Blog post on case; added my comments on the TP Blog post in Comment 2
5/11/2020	Tax Court Conflates Standards for Testing Interpretive and Legislative Regulations (5/7/20; 5/11/20), here	Added a discussion of a recent Fifth Circuit decision with a similar conflation and a discussion of a similar case from the D.C. Cir.
5/11/20	Tax Court Conflates Standards for Testing Interpretive and Legislative Regulations (5/7/20; 5/11/20), here	Added a discussion of a recent Fifth Circuit decision with a similar conflation and a discussion of a similar case from the D.C. Cir.