The Need for Mead: Rejecting Tax Exceptionalism in Judicial Deference

By Kristin E. Hickman. Full text here.

This Article takes the controversial position that Treasury regulations are entitled to judicial deference under the Chevron doctrine, as clarified by the Supreme Court in the more recent Mead case, whether those regulations promulgated pursuant to specific authority delegated in a substantive provision of the Internal Revenue Code or in the exercise of general authority granted in Code § 7805(a). The Article attributes the unwillingness to concede Chevron’s applicability to tax exceptionalism, the erroneous perception of many scholars that tax is different than other areas of the law, which for the purpose of this Article translates into the idea that tax should have its own judicial deference standards separate from the Chevron/Mead regime. This Article reviews a century of jurisprudence and scholarship to show that what many tax scholars and practitioners believe is a unique tax deference tradition is, in fact, merely consistent with broader deference principles espoused by the courts and scholars throughout administrative law. Further, while many in the tax community believe that aspects of tax law and practice render Chevron deference inappropriate for most Treasury regulations, this Article contends that tax closely resembles other administrative law areas in which Chevron deference clearly applies. Finally, having established that the Chevron/Mead framework should apply in tax cases, this Article applies the standard articulated in Mead to demonstrate that Chevron is the appropriate evaluative standard for Treasury regulations and responds to arguments suggesting an alternative outcome.