Preserving Fairness in Tax Administration in the Mayo Era

One of the dominant themes in contemporary federal taxation is bringing tax administration within the fold of general administrative law. In 2011, the United States Supreme Court unambiguously embraced this movement in the landmark case Mayo Foundation for Medical Education & Research v. United States, in which the Court held that challenges to the validity of Treasury regulations generally are governed by the Chevron standard to the same extent as are regulations issued by other administrative agencies. There was an immediate and strong hostile reaction to Mayo in tax circles. Many fear that Mayo dramatically tips the balance in favor of the Internal Revenue Service (Service), such that challenging allegedly invalid tax regulations will be very difficult in the future. This article maintains that, just on its own terms, Mayo is unlikely to have this effect. But the world into which Mayo has thrust tax administration is populated by other denizens. Mayo, safe in itself, may become dangerous when combined with them. Specifically, Mayo may pose the peril of governmental overreaching when Treasury and the Service use that case in conjunction with the Brand X holding allowing regulations to supersede prior judicial statutory construction, or with the Auer rule according agencies great deference in interpreting their own regulations, or with statutory rules allowing Treasury to issue regulations with retroactive effect, or with possible application of Chevron to Service guidance documents below the level of regulations. This article assesses the practical significance of such threats, and it suggests ways by which they may be defused. These ways entail the core notion of delegation, which is the basis of administrative deference doctrines. They also entail substantive, procedural, and constructional arguments by which government overreaching through tax regulations may be curbed. Such arguments sometimes are within existing doctrine; other times they will require modest and salutary doctrinal adjustment. On the basis of these approaches, the benefits of Mayo can be preserved without the blight of regulatory unfairness