Statutory Interpretation: Best vs. Least Bad (1/23/22l 1/25/22)

I have stated my definition of deference as follows: 

Deference is a court applying a reasonable agency interpretation of ambiguous statutory text despite the court's belief that there is a more reasonable interpretation of the ambiguous statutory text. That's it.

See John A. Townsend, The Report of the Death of the Interpretive Regulation Is an Exaggeration 70 (SSRN last revised 12/15/21), here. This requires that the court actually determine the best interpretation and then defer to a lesser agency interpretation

Some state that Chevron deference can include a court applying a reasonable agency interpretation without the court having to struggle with the issue of the best interpretation. I divide reasonable agency interpretations into two relevant categories:  (i) the best interpretation, which is perforce reasonable; and (ii) an interpretation that is less than the best but still reasonable (whatever that means). Category (i) involves no deference; Category (ii) involves deference. If the court stops at determining that the agency interpretation is reasonable without determining the best interpretation, the court may or may not have deferred to a less persuasive agency interpretation.

These Categories and ones I discuss in my article Postscript (separately available here) depend upon the potential for a "best" interpretation. In Polselli v. United States Dep't of the Treasury-IRS. 23 F.4th 616 (6th Cir. 1/7/22), CA6 here and GS here, although not in a Chevron context, the dissenting judge stated the concept of the best interpretation as: "the least bad interpretation."  For purposes of Chevron analysis, I think the best and the least bad interpretation are the same. The term "least bad interpretation" may be catchy, but I think the term best (or better) interpretation is more appropriate for statutory interpretation.

I discuss Polselli (although not in the Chevron context) in my earlier blog. 6th Circuit Holds Summonses in Aid of Collection Do Not Require Notice to Taxpayers Or Others (Federal Tax Procedure Blog 1/13/12, here); see also Leslie Book, Polselli v US: Circuit Split on Notice Rules For Summonses to Aid Collection (Procedurally Taxing 1/20/22), here.

Added 1/25/22 9:30am:  

Further Discussion of NTA Annual Report (1/17/22)

I recently posted to advise to advise of the NTA’s 2021 Report to Congress. National Taxpayer Advocate Annual Report to Congress and Related Documents (1/14/22), here. The Full Report is here.  I said I would post later on portions that might be interesting to readers of this blog. I focus in this posting on the part of particular interest to readers of this blog – the section on Most Litigated Tax Issues (pp. 183-205.  There is a lot of detail, including statistics and informative graphs in that portion. I can’t cover it all, but summarize key parts here:

1. Ten Most Litigated Issues in Tax Court (pp. 183-188). In identifying the ten most litigated positions in the Tax Court, the Report states that it is transitioning its methodology. The Report explains (p. 183) the transitioning and the methodology used in this Report. The Report then (p. 184)  puts the result in tables for the old method (relying on issued opinions) and the revised method (using issues identified in petitions).

2. Top Issues in Other Courts (pp. 188). The Report discusses lien cases and summons enforcement. The Report does not mention refund suits;  although a staple historically for contesting tax issues, refund suits are relatively rare since most tax issues are litigated in the Tax Court through deficiency jurisdiction and CDP jurisdiction.

3. NTA Recommendations to Mitigate Tax Disputes (apparently this applied to Tax Court and nonTax Court disputes (pp. 189-190).  The recommendations are for §§ 7403, 6751, and 7602.

4. Tax Litigation Overview (pp. 190-195) discussing the “variety of courts [that] share concurrent jurisdiction over federal tax litigation,” including Tax Court, District Courts, Courts of Appeals, Court of Federal Claims, Bankruptcy Courts, and Supreme Court. The Report offers Figure 3.6 (p. 191) that graphs the “Docketed Inventory in Tax Court, District Court, and Federal Court of Claims for BYs 2012-2021. The overwhelming majority (I think well over 90%) are in the Tax Court. And, as I understand it, 95% of the Tax Court cases are deficiency cases. Figure 3.7 (p. 191) shows the “Dollars in Dispute” among those courts for the same period, with the District Court and Court of Federal Claims share of the total increasing, but the majority is still in the Tax Court. Figure 3.8 shows “Portion of Total Dockets and Dollars in Dispute by Amount Category” for FY 2021. The Report says (p. 192) that there has been a decrease in tax cases in the District Court from 788 to 763 but that “0.8 percent of civil tax cases in district courts in 2020 were resolved through trial.”

National Taxpayer Advocate Annual Report to Congress and Related Documents (1/14/22)

The National Taxpayer Advocate’s 2021 Annual Report to Congress, here.  The related “Purple Book” with the NTA’s legislative recommendations is also out, here, along with an Appendix related to the recommendations, here.  I focus in this blog entry primarily on notifying readers of the documents.  I will likely offer more sibstamtovediscussion in later blog entries as I deem warranted.

I offer some of the NTA’s general comments (here) in her introductory remarks (which have more discussion later in the Report):

1. "2021 Was the Most Challenging Year Ever for Taxpayers," including backlogs leading to long refund delays, telephone service the worst ever, premature collection notices.
2. The pandemic stretched IRS resources but other reasons included the combination of underfunding and imposing more responsibilities on IRS.
3. The Discussion of the Most Serious Problems Encountered by Taxpayers is on pp. 32-182, starting here.  I won’t discuss these here but they are not unimportant.

Most Litigated Issues

The discussion of Most Litigated Issues is from pp. 183-205, starting here.  This is the section that the target audience for this blog will likely find most interesting.  I will not discuss this section now but will post on significant features later as I digest the information.

6th Circuit Holds Summonses in Aid of Collection Do Not Require Notice to Taxpayers Or Others (1/13/12)

Note: The Supereme Court granted a petition for writ of certiorari in Polselli.  See Supreme Court Grants Cert in Polselli on Issue of a Collections Summons to Third Party Requires Notice to Taxpayer (12/10/22), here.

In Polselli v. United States Dep't of the Treasury-IRS. 23 F.4th 616 (6th Cir. 1/7/22), CA6 here and GS here, the Court held that the IRS summonses to the banks of the taxpayers' wife and lawyers were issued in aid of collection of the taxpayers' taxes and therefore were exempted from the requirement to notify the taxpayer or third parties of the summonses. The general rule is that the taxpayer must be notified of third party summonses. § 7609(a). The exception for summonses in aid of collection of assessed taxes.  § 7609(c)(2)(D)(i).

The Court rejected the 9^th Circuit's holding in Ip v. United States, 205 F.3d 1168 (9th Cir. 2000). As discussed by the 6th Circuit, the Ip rule is: "Under the Ip rule, the IRS may issue a summons to a third-party recordkeeper without notice only if (1) the third-party is the assessed taxpayer, (2) the third party is a fiduciary or transferee of the taxpayer, or (3) the assessed taxpayer has 'some legal interest or title in the object of the summons.'" I discuss Ip at p. 410 n. 1795 of the Federal Tax Procedure book (available free on SSRN here). I have revised that footnote with the revisions indicated in red for the 2022 Practitioner Edition:

     Second,  summonses used in aid of collection of an assessed liability against the taxpayer or a transferee require no notice to the party whose liability is being investigated  (again,  usually the taxpayer). n1795  This would often be a  summons to a  person having assets that might be levied to collect the assessed liability.    Thus,  for example,  the requirement for notice  of third-party record keeper summonses does not apply to such summonses. n1796
   n1795 § 7609(c)(2)(D).  Congress enacted this exception to notice from concern "that giving notice of a third-party summons to the taxpayer would allow him to withdraw the funds in his accounts before the summons could be enforced." Barmes v. United States, 199 F.3d 386, 389 (7th Cir. 1999). One court has noted that, although the plain language of the statute exempts the IRS from having to give notice for a summons issue in aid of collection, a more subtle reading of the legislative history permits the statute to be interpreted to require notice in some cases. See Ip v. United States, 205 F.3d 1168 (9th Cir. 2000) (deriving "the rule that a third party should receive notice that the IRS has summoned the third party's records unless the third party was the assessed taxpayer, a fiduciary or transferee of the taxpayer, or the assessed taxpayer had 'some legal interest or title in the object of the summons.'"); Viewtech, Inc. v. United States, 653 F.3d 1102, 1104-5 (9th Cir. 2011) (citing and quoting Ip), acknowledging that the plain language of the statute is inconsistent with the Ip holding but applying it anyway)). Other courts have rejected Ip. See e.g., Polselli v. United States Dep't of the Treasury-IRS. ___F.4th ___. 2022 U.S. App. LEXIS 527  (6th Cir. 1/7/22) (describing the Ip rule as: "the IRS may issue a summons to a third-party recordkeeper without notice only if (1) the third party is the assessed taxpayer, (2) the third party is a fiduciary or transferee of the taxpayer, or (3) the assessed taxpayer has "some legal interest or title in the object of the summons;" and declining to follow Ip based on the literal meaning of the statute and rejecting Ip's foray into legislative history; also citing Haber v. United States, 823 F.3d 746, 751, 753 (2d Cir. 2016) that preliminary court review may be available to test whether the summons was issued in aid of collection); and Ginsburg v. United States, 2002 U.S. Dist. LEXIS 19046 (D. Conn. 2001) (declining to follow Ip because other cases are more persuasive and noting that the Government's position is that Ip is wrongly decided because the statute is "clear and unambiguous.").
   n1796 The exception excepts such summons from  §  7609.    So the general requirement within  §  7609  that requires notice to such third party recordkeepers is not applicable.    By contrast,  as noted below in the text,  which excepts summonses in criminal investigations  §  7609,  by special provision,  the requirement for notice for third party recordkeeper summons is made applicable for such summonses in criminal investigations.

D.C. Circuit Holds Tax Court Has No Jurisdiction To Consider WBO Action in Declining To Consider A WB Claim By Not Forwarding for Examination (1/12/22)

In Li v. Commissioner, ___ F.4th ___, 2022 U.S. App. LEXIS 2022 U.S. App. LEXIS 697 (D.C. Cir. 1/11/22), DCCir here and GS here, the Court held that the Tax Court has no jurisdiction to review under § 7623(b)(4) the IRS Whistleblower Office (“WBO”) determination that the whistleblower (“WB”) has not submitted sufficient specific information for the WBO to refer the matter to an Examination function for possible action (an audit) that might result in a WB award.  The Court of Appeals raised the issue on its own motion as it is entitled to do for lack of jurisdiction.  The Court of Appeals’ jurisdiction is dependent upon the Tax Court having had jurisdiction.

The opinion is short, so I refer readers to the opinion if they want more than the opinion I offer.

In making the holding, the Court specifically rejected contrary holdings in Cooper v. Commissioner, 135 T.C. 70, 75 (2010) and Lacey v. Commissioner, 153 T.C. 146 (2019) which held that the Tax Court had jurisdiction over WB claims that were not forwarded to the Examination function.  Note that, since appeals in WB cases must go to the D.C. Circuit, this opinion will be conclusive unless reversed by the panel, the D.C. Circuit en banc, or the Supreme Court.

The Court recognizes a potential exception to its holding in fn. 2 on p. 7:

   n2 Li does not argue on appeal that the IRS, in fact, did proceed against the target taxpayer based on information in her Form 211 application. So we need not and do not decide whether the Tax Court would have jurisdiction to hear a whistleblower’s claim in a case in which the IRS wrongly denied a Form 211 application but nevertheless proceeded against a target taxpayer based on the provided information.

Regulations Interpreting Pre-1996 Code Provisions; Fixing Hewitt (1/6/22; 5/12/23)

Note: See discussion at the bottom of this blog entry of the Proposed Regulations to impose a new reporting obligation for past transactions not disclosed under  Notice 2017–10.

My immediate past posting was on Hewitt v. Commissioner, 21 F.4th 1336 (11th Cir. 2021),  11^th Cir. here and GS here.  See 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.  In that blog entry, I discussed some administrative law issues, mostly the Administrative Procedure Act ("APA").  As I noted, the effect of Hewitt holding is only to declare the regulation invalid because of procedural irregularity under the APA's arbitrary and capricious standard in 5 U.S.C. § 706(2)(A), here (also called variously the State Farm test, the hard look test, and testing the regulation for the agency's reasoned decisionmaking).

Today, I add that Treasury may fix the regulations problem retroactively by a new round of Notice and Comment and promulgating a new regulation adopting an interpretation of the statute that will pass the arbitrary and capricious test of procedural regularity.  (Whether the regulation would be precisely the same as the one invalidated would depend on whether in light of experience and the comments the older invalidated regulation needs to be updated.)

Tax procedure enthusiasts will know that § 7805(b) provides limitations on retroactivity of regulations promulgated under § 7805(a).  I won't go through those limitations now but link the Code section here.  Those limitations were adopted in 1996.  Prior to 1996, Treasury regulations under § 7805(a) could be retroactive to the effective date of the statute being interpreted.  The reason is that, contrary to ill-considered claims by some courts and scholars of relatively recent vintage, § 7805(a) regulations are interpretive regulations which interpret the statute and do not create new law (a requirement for legislative regulations).  The current limitations in § 7805(b) as revised in 1996 do not apply to Code provisions enacted prior to 1996, so that the law of retroactivity for § 7805(a) regulations applies.  (I cover this in my Article, John A. Townsend, The Report of the Death of the Interpretive Regulation Is an Exaggeration (SSRN last revised 12/15/21), here, linking to the article for reviewing or downloading, at pp. 61-62.  (As an aside, this retroactivity feature for regulations interpreting pre-1996  Code provision was the whole point of the United States v. Home Concrete & Supply, LLC, 566 U.S. 478, 504-505 (2012) where the regulation interpretation was retroactive and failed only because the interpretation (as opposed to the regulation) was foreclosed by the Supreme Court’s earlier Colony case (see particularly Justice Kennedy's dissent).) 

11th Cir. Invalidates Proportionate Sharing Regulations As Procedurally Arbitrary and Capricious for Failing to Address a Significant Comment (12/30/21; 12/31/21)

Subsequent blog entry adding some procedural nuance:  Regulations Interpreting Pre-1996 Code provisions; Fixing Hewitt (Federal Tax Procedure Blog 1/6/22), here.

In Hewitt v. Commissioner, 21 F.4th 1336 (11th Cir. 2021), 11^th Cir. here and GS here, the Court invalidated regulation § 1.170A-14(g)(6)(ii) denying charitable donations of partial interests (such as easements) for conservation purposes if the deed requires that, upon extinguishment, the proceeds be shared between donor and charitable donee ratably to the value between the conservation easement and the donor’s retained property rights as of the time of the donation.  Specifically, the regulations did not permit in that sharing calculation, the subtraction of value of post-donation improvements incurred by the donor.  Such subtraction, if allowed, would allocate that portion of the value exclusively to the donor rather than sharing with the charitable donee according to the date of donation values).  The Regulation interpreted the § 170(h)(5)(A) requirement that:

(A) Conservation purpose must be protected
A contribution shall not be treated as exclusively for conservation purposes unless the conservation purpose is protected in perpetuity.

Two issues are potentially implicated.

(i)              Was the regulation properly promulgated under the procedural requirements for regulations in the Administrative Procedure Act (“APA”)?  Those requirements include a statement of purpose addressing significant comments in the Notice and Comment process (sometimes called Reasoned Decisionmaking) which may be tested under the APA’s arbitrary and capricious standard under 5 USC 706(2)(A).  This is sometimes referred to as the State Farm test.  Motor Vehicles Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).  This test is a procedural regularity test only and, as to interpretations in the regulation, do not test the validity of the interpretation.  (Thomas Merrill, a noted scholar, has suggested that Reasoned Decisionmaking or some variation including a reasoning concept is better called “process review,” to avoid confusing it with the ambiguous requirement of “reasonableness,” which is the deference test for an interpretation. Thomas W. Merrill, Re-Reading Chevron, 70 Duke L. J. 1153, 1171-1172 (2021); process review seems to focus better on the inquiry into the procedural validity of the regulation.).

(ii)            Was the interpretation in the regulation a valid interpretation either because it is the best interpretation of the statute (regardless of deference) or, if not the best interpretation, subject to Chevron deference?  Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984).  In this regard, a Notice and Comment regulation interpretation adopted in a procedurally invalid way is not entitled to Chevron deference but should still carry the day if it is the best interpretation of the statute.  BTW, this is why an interpretive regulation differs from a legislative regulation; if a legislative regulation is procedurally defective or even does not exist, there is no law in the statute to apply; if an interpretive regulation is procedurally defective or does not exist, there is still the statute a court can apply based on its best interpretation.  For example, the quintessential tax legislative regulations are the consolidated return regulations; if there are no consolidated return regulations or they are procedurally invalid, there is no law for consolidated returns; by contrast, most tax regulations are interpretive regulations where if there were no interpretive regulations or if the interpretation in the regulations were not valid (qua interpretation), there would still be the statute which the court could interpret to resolve the dispute.

The 11^th Circuit held in Hewitt that the regulation failed the procedural regularity test in (i) above because, in adopting the Final Rule, Treasury failed to consider and discuss a material significant comment regarding the extinguishment formula as to whether the value of post-donation improvements by the donor must be shared with the charitable donee.  Failing the procedural regularity test, the regulation was invalid thus precluding any Chevron deference.  Had the regulation passed the procedural regularity test in (i), Chevron deference might have been an issue.

FinCEN Adopts Immediately Effective Final Rule Omitting the Regulations Statement of the 2004 Willful Penalty Prior to the 2004 Statutory Amendment (12/26/21)

Readers may recall that the FBAR willful penalty, as amended in 2004, provides a maximum penalty of the greater of $100,000 or 50% of the amount in the account on the reporting date.  31 U.S.C. §5321(a)(5)(C).  Prior to 2004, the maximum willful penalty was $100,000.  After the 2004 amendment, FinCEN did not amend the regulation, 31 CFR § 1010.820(g), to reflect the change in the statute.  After the amendment, creative lawyers pursued the argument that, by leaving the regulation in tact, FinCEN exercised its discretion under the amended statute to maximize the FBAR willful penalty at $100,000 and thus could not assert a higher penalty under the amended statute.  That argument finally failed.  E.g., Norman v. United States, 942 F.3d 1111, 1117-1118 (Fed. Cir. 2019).

FinCEN has deleted subsection (g), thus eliminating any confusion (real or feigned) about the effect of the statutory amendment.  The Final Rule states that it is immediately effective on the date issued (12/23/21).  See 86 FR 72844, 72844-72845, here.

I have no idea why FinCEN took so long to make that deletion.

JAT Notes:

What is the effect of stating an effective date of 12/23/21?  Why didn’t FinCEN just state that the effective date was the 2004 amendment effective date?  Certainly, the deleted subsection (g) had been effectively deleted by 2004 amendment, as recognized by the court opinions prior to 12/23/21.

While I can't provide a definitive answer as to FinCEN's reasoning, I will step through my analysis.:

Fifth Circuit Affirms Agency Best Interpretation of Statute, thus Not Applying Chevron (12/20/21; 12/15/22)

On 12/21/21 and 12/15/22, significant additions by adding paragraphs 3, 4 and 5 to JAT Notes below.

In Cargill v. Garland, 20 F.4th 1004 (5th Cir. 12/14/21), CA 5 here and GS here,  the Fifth Circuit panel sustained the ATF regulations interpretation of the statutory term “machinegun” to include bump stocks.  Judge Higginson for the unanimous panel reasoned that the interpretation was the “best” interpretation.  On that holding, Chevron deference was irrelevant, for as the panel noted (p. 1009 n. 4):

   n. 4 Cargill also argues that if the statute is ambiguous, the Bump Stock Rule is not entitled to deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), reasoning primarily that Chevron does not apply to cases involving criminal statutes and that ATF explicitly waived Chevron in the district court. Because we conclude that bump stocks are "machinegun[s]" under the best interpretation of the statute, we do not address whether the Rule is entitled to deference. See Edelman v. Lynchburg Coll., 535 U.S. 106, 114 (2002) (explaining that "there is no occasion to defer and no point in asking what kind of deference, or how much" would apply in cases where an agency has adopted "the position we would adopt even if there were no formal rule and we were interpreting the statute from scratch")

In my recent update to the article titled The Report of the Death of the Interpretive Regulation Is an Exaggeration (see SSRN here), I presented this phenomenon as a category (which I call Category 3) where courts do not defer to the agency interpretation. I presented this category with others to show the limited application of Chevron deference.  That discussion in the article is presented in the Postscript to the article at pp. 118–124, which starts here; the Postscript only may be viewed and downloaded here.

The panel noted the state of play on the bump stock rule at the time of the decision as (p. 1006 n. 2):

   n2 Three other circuits have also rejected challenges to the Bump Stock Rule. In April 2019, the D.C. Circuit denied a motion for a preliminary injunction against the Rule, concluding that the statutory definition of "machinegun" is ambiguous and that the Rule is entitled to Chevron deference. Guedes v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 920 F.3d 1 (D.C. Cir. 2019) (per curiam). One judge dissented, arguing that the Rule contradicts the statute's plain language. Id. at 35 (Henderson, J., dissenting). The Supreme Court denied certiorari, 140 S. Ct. 789 (2020), though Justice Gorsuch issued a statement arguing that the Rule is not entitled to Chevron deference. Id. at 789-91 (Gorsuch, J., statement regarding denial of certiorari). In May 2020, the Tenth Circuit denied another motion to preliminarily enjoin the Rule, for similar reasons as the D.C. Circuit. Aposhian v. Barr, 958 F.3d 969 (10th Cir. 2020). Four months later, the Tenth Circuit vacated that opinion and granted a rehearing en banc, 973 F.3d 1151 (10th Cir. 2020) (en banc), but it subsequently reversed course, vacating the order granting rehearing en banc and reinstating the original panel opinion. Aposhian v. Wilkinson, 989 F.3d 890 (10th Cir. 2021) (en banc). Five judges dissented from the decision to vacate the en banc order. Id. at 891 (Tymkovich, C.J. dissenting, joined by Hartz, Holmes, Eid, and Carson, JJ.). The plaintiff in that case has filed a petition for certiorari in the Supreme Court. Petition for Writ of Certiorari, Aposhian v. Garland, No. 21-159 (U.S. Aug. 4, 2021). Finally, in March 2021, a Sixth Circuit panel granted a preliminary injunction against the Rule, holding that the Rule is not entitled to Chevron deference and is not the best interpretation of the NFA. Gun Owners of Am., Inc. v. Garland, 992 F.3d 446, 450 (6th Cir. 2021). However, the Sixth Circuit vacated that decision, 2 F.4th 576 (6th Cir. 2021) (en banc), and an evenly divided en banc court affirmed the district court's judgment upholding the Rule. No. 19-1298, ___ F.4th ____, 2021 WL 5755300 (6th Cir. Dec. 3, 2021) (en banc); see Gun Owners of Am. v. Barr, 363 F. Supp. 3d 823, 826 (W.D. Mich. 2019).

The Court also held (pp. 1013-1014) that, since its best interpretation of the term “machinegun” did not present an ambiguity, the rule of lenity did not apply.

JAT Notes:

Final Update of Article on APA, Legislative and Interpretive Regulations, and Chevron (12/16/21)

I have posted to SSRN a major update of my prior article titled The Report of the Death of the Interpretive Regulation Is an Exaggeration.  The update is dated December 14, 2021.  The Abstract summarizing the scope of the article is here.  The Abstract offers links to view or download the article.

This will be the last update for this article.  (There was one update before this.)  If there is something new that I feel appropriate to discuss in an article on SSRN, I will write a new article.

CAVEAT:  The Abstract has two problems that I do not know how to fix:

1. As of this morning, the Abstract has a concluding paragraph that I cannot delete for some reason.  That concluding paragraph is carried over from the last update and does not apply to this update.  I have posted a revision for the Abstract that, when approved, will caution that, if there is text below that point, it is a vestige and readers should ignore that concluding paragraph.  The following is the concluding paragraph that readers should ignore:

Note: The principal revisions in the draft linked here are discussions of Supreme Court cases in June 2019. I did make some other minor corrections as well. This "final draft" of the article replaces one originally posted June 6, 2019. I have made substantial revisions to the earlier draft. I do not have plans for further revisions, although I will likely make substantial revisions on this subject to the more summary presentation in my Federal Tax Procedure books (Practitioner and Student Editions) posted on SSRN.

2.  The SSRN suggested citation for the article states my author name twice as if there were joint authors of the publication.  As it appears now, the suggested citation is:

Townsend, John A. and Townsend, John A., The Report of the Death of the Interpretive Regulation Is an Exaggeration (December 14, 2021). Available at SSRN: https://ssrn.com/abstract=3400489 or http://dx.doi.org/10.2139/ssrn.3400489 

The corrected citation in SSRN suggested format should be:

Townsend, John A., The Report of the Death of the Interpretive Regulation Is an Exaggeration (December 14, 2021). Available at SSRN: https://ssrn.com/abstract=3400489 or http://dx.doi.org/10.2139/ssrn.3400489

Actually, the citation that I prefer uses the current convention of identifying the author with first name first:  

John A. Townsend. The Report of the Death of the Interpretive Regulation Is an Exaggeration (SSRN December 14, 2021), https://ssrn.com/abstract=3400489