Wednesday, August 30, 2017

Good summary of Chevron (8/30/17)

In Sinclair Wyoming Refining Co. v. EPA, 2017 U.S. App. LEXIS 15192 (10th Cir. 2017), here, a nontax case, Chief Judge Tymkovich offers the following general discussion of Chevron.  This discussion does not require changes to the Federal Tax Procedure Editions, but it is a good summary so I offer it here.
When a court reviews an agency's legal determination, it generally applies the analysis set out by the Supreme Court in Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984). Under Chevron, reviewing courts apply a two-step analysis. Chevron step one asks "whether Congress has directly spoken to the precise question at issue." Id. at 842-43. If Congress's intent is clear, then both the court and the agency "must give effect to the unambiguously expressed intent of Congress." Id. at 843. Courts determine Congress's intent by employing the traditional tools of statutory interpretation, beginning—as always—with an examination of the statute's text. See New Mexico v. Dep't of Interior, 854 F.3d 1207, 1223-24 (10th Cir. 2017). But, if Congress has "not directly addressed the precise question at issue"—if "the statute is silent or ambiguous with respect to the specific issue"—the court must determine at Chevron step two "whether the agency's answer is based on a permissible construction of the statute." Chevron, 467 U.S. at 843-44. 
In some circumstances, however, a court never reaches the Chevron analysis. In such cases, we do not need to answer the step one or step two questions. As the Supreme Court explained in United States v. Mead Corp., 533 U.S. 218, 121 S. Ct. 2164, 150 L. Ed. 2d 292 (2001), the initial step of the Chevron inquiry is actually to determine whether Chevron should apply at all. See Cass R. Sunstein, Chevron Step Zero, 92 Va. L. Rev. 187, 247 (2006) (conceptualizing the inquiry of whether Chevron applies as "Chevron step zero"); see also Gutierrez-Brizuela v. Lynch, 834 F.3d. 1142, 1157 (10th Cir. 2016) (Gorsuch, J., concurring) (discussing the step zero inquiry and the confusion created by Mead). n3
   n3 We note that neither party discussed the Supreme Court's decision in City of Arlington v. Federal Communications Commission, 569 U.S. 290, 133 S. Ct. 1863, 185 L. Ed. 2d 941 (2013), in their supplemental briefs. We have not previously addressed the effect—if any—City of Arlington might have on our application of the Mead inquiry. But we do note that Justice Scalia, writing for the majority in City of Arlington, reaffirmed that courts must determine whether Chevron or Mead controls at step zero. See 133 S. Ct. at 1874 ("The dissent is correct that United States v. Mead requires that, for Chevron deference to apply, the agency must have received congressional authority to determine the particular matter at issue in the particular manner adopted. No one disputes that." (emphasis added)).

Tuesday, August 29, 2017

Public Interest Entity Fails in FOIA Attempt to Force IRS to Disclose President Trump's Tax Returns (8/29/17)

In Electronic Privacy Information Center, v IRS, 2017 U.S. Dist. LEXIS 131911 (D. D.C. 2017), here, the court rejected the EPIC's attempt to obtain the tax returns of President Donald J. Trump.  I have added the following footnote to p. 144 of the Practitioner Edition after the sole paragraph in (there is no change to the Student Edition), but provide the entire text paragraph (for context) and the footnote:

Ch. 4.  Confidentiality and Disclosure of Return Information.
IV.  Exceptions–Must be Congressionally Approved.
H. Other Permitted Disclosures
Section 6103 contains a plethora of other permitted disclosures. All are grounded in some perception of national priority that trumps the general need for secrecy. I do not expect you to know these other exceptions for this class.  You should, however, know that, when you practice in this area, you simply have to slug through the various and many permitted disclosures to assess risks of disclosure for your client and remedies that may be available for wrongful disclosure.  Your intuition based on the foregoing examples should also give you a sense of when a national priority exists for which Congress might have provided an exception.  But you still must read the statute, because sometimes Congress' sense of national priorities may be different than what you think it is or should be. fn. 611a 
fn. 611a.  There is one disclosure authority within this general grouping that is worth a passing mention because of its topical interest in 2017 when this footnote was prepared.  Section 6103(k)(3) permits the IRS, upon approval of the JCT, to disclose return information “with respect to any specific taxpayer to the extent necessary for tax administration purposes to correct a misstatement of fact published or disclosed with respect to such taxpayer’s return or any transaction of the taxpayer with the Internal Revenue Service.”  Notice the qualifiers for this authority: (i) approval by the JCT; and (ii) necessity for tax administration.   See § 6103(b)(4) (defining tax administration).  Merely some national emergency does not fit this exception; rather the necessity must arise from tax administration and it is solely to correct a misstatement of fact.  It is hard to imagine this authority being invoked with these limitations, and so far as I am aware, it has never been invoked.  See for a failed attempt to require the IRS to exercise this authority to release President Donald J. Trump’s tax returns, Electronic Privacy Information Center, v IRS, ___, 2017 U.S. Dist. LEXIS 131911 (D. D.C. 2017) (calling this exception a “rara avis” and also stating that the Court is aware of no instance of its actual use, but (i) noting two instances where preliminary moves were made to obtain the required permission but the permission from the JCT were not granted and (ii) other citings in cases appear to have been errors).  This case also held that, under the APA or otherwise, there is no requirement that the IRS seek the approval of the JCT to make the disclosures.
I also revised footnote 555 on p. 135 as follows and offer the sentence in the text and the footnote:
The IRS generally “may” also disclose return information to the taxpayer or his or her representative or designee unless it determines that the disclosure would “seriously impair Federal tax administration.” fn 555
fn. 555 § § 6103(c) (as to taxpayer’s representative) and § 6103(e)(7) (as to taxpayer and others otherwise having access).  Regs. § 601.702(c)(5)(iii)(C) (“In the case of an attorney-in-fact, or other person requesting records on behalf of or pertaining to other persons, the requester shall furnish a properly executed power of attorney, Privacy Act consent, or tax information authorization, as appropriate.”).  For an interesting application of this limitation where the FOIA suit was dismissed because the requester seeking the returns of President Donald J. Trump did not provide President Trump’s consent to the disclosure, see Electronic Privacy Information Center, v IRS, ___, 2017 U.S. Dist. LEXIS 131911 (D. D.C. 2017).

Monday, August 21, 2017

Yin Article on Codification and Emergence of JCT (8/21/17)

George Yin, Professor at the University of Virginia School of law (faculty bio here), has posted to SSRN this article (in SSRB's suggested format):  Yin, George K., Codification of the Tax Law and the Emergence of the Staff of the Joint Committee on Taxation (August 1, 2017). Virginia Law and Economics Research Paper No. 2017-20; Virginia Public Law and Legal Theory Research Paper No. 2017-39. Available at SSRN:  George was previously chief of staff of the Joint Committee on Taxation and is well situated to review its history and role.

As I note in my Federal Tax Procedure Book (both editions), the Joint Committee on Taxation plays a key role in tax legislation.  This new article provides interesting insight into how the JCT assumed the important role it plays today.

The SSRN Abstract is as follows:
In 1926, Congress created the Joint Committee on Taxation (JCT) and its staff. This article explains how, partly by design but largely by happenstance, the JCT staff helped change the nature of the legislative process. By serving at or near the intersection of three great divides in government — those between the parties, the houses of Congress, and the legislative and executive branches — the staff demonstrated the value of unelected professionals assisting directly in the formation of legislation and led Congress to rely more on its own resources in the legislative process rather than those of the executive branch. This article describes the emergence of the JCT staff from a modest conception much different from its eventual role. The staff’s work on a lengthy and highly technical project — a dozen-year effort to codify the tax statutes — contributed to the growth of its influence and the changes that would take place in the legislative process.
George's article led me to revise some portions of the working draft for the 2018 editions of the Federal Tax Procedure Book.  I have incorporated George's article particularly into the discussion of the U.S. Code system in the page at the right titled On the Internal Revenue Code (Title 26) and Statutes (8/21/17), here.

Also, George has previously written or spoken on the JCT and tax legislation in the following articles (which I cite in the Federal Tax Procedure Book:

  • George K. Yin, Preventing Congressional Violations of Taxpayer Privacy, 69 Tax Law. 103 (2015).
  • George K. Yin, James Couzens, Andrew Mellon, The "Greatest Tax Suit in the History of the World," and the Creation of the Joint Committee on Taxation and its Staff, 66 Tax L. Rev. 787 (2013).
  • George K. Yin, Let's Get the Facts of the Couzens Investigation Right!, 2013 TNT 165-12 (8/26/13).
  • Interview with George K. Yin, 25 ABA Tax Section News Quarterly 14, 17(Winter 2006).
These articles and other of George's articles can be found on George's SSRN author page, here.

Tuesday, August 8, 2017

2017 Editions to Townsend on Federal Tax Procedure Available for Download (8/8/17)

My 2017 editions of my Federal Tax Procedure Book are now posted on SSRN and available for download as follows:
I offer these for all to use.  I originally prepared this for students in my Federal Tax Procedure class at the University of Houston Law School.  I have now retired from teaching that class (last semester was Fall 2015).  But, I keep these editions up with annual publications in August.  I have tried to include in the text the substantive materials for a law school class in tax procedure.  The Practitioner Edition is the same as the Student Edition except that it contains footnotes that, I hope in most cases, support or expand on what is in the text, with some flights of fancy.  The Student Edition strips out the footnotes so that students do not get bogged down in minutia and irrelevances.

I would appreciate hearing from readers about things that need correction or improvement (either in substance or presentation).  I am constantly revising the editions in advance of the next publication (August 2018) and readers can materially help in making that next edition better.

Also, I will be posting material updates, corrections and other matters related to both Editions on my this blog.