Tom Cullinan adds insight to Tax Notes
In an article published in Tax Notes on July 25, 2024, Former Counselor to the IRS Commissioner and Shareholder Tom Cullinan’s insight is included among a roundup of tax lawyers discussing how “the Supreme Court altered the administrative law landscape with Loper Bright Enterprises Inc. v. Raimondo, No. 22-451 (S. Ct. 2024), by ditching a 40-year-old rule of deference to some agency regulations. The prior precedent incorrectly credited agencies with some special competence at interpreting vague statutes, a job that should remain with the courts, Chief Justice John G. Roberts Jr. wrote in the decision.”
Cullinan shared with the reporter that he thinks the Loper Bright decision will have no effect on IRS subregulatory guidance because “it was already well settled that none of that was entitled to Chevron deference.” He also noted that a Treasury policy statement from 2019 expressly states that Treasury and the IRS will not argue that their subregulatory guidance is entitled to Chevron deference. The law concerning subregulatory guidance like Notice 2021-20 already clearly stated that it was never entitled to Chevron deference, he added.
The article also mentioned Cullinan’s recent post on LinkedIn following the Loper Bright decision outlining a potential post-Chevron deference scenario — the IRS and Treasury could steer toward issuing more subregulatory guidance instead of going through the regs process. “What’s the point of going through the heavy lift of issuing a regulation now that the courts will need to review everything de novo?” added Cullinan.
To review the full article, subscribers may click here.