That conventional wisdom however may be incorrect Chevrons Step Two requires that a court defer to an agen cys interpretation of a statute if that interpretation is a permissible construction of the statute unless the interpretation is arbitrary or ID: 40537
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Tax Controversy Alert Using the Administrative Procedure Act to Challenge Claims that IRS Regulations are entitled to Chevron Deference Conventional wisdom is that if a statutory prov Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Of course, deference also can be avoided using the pre-Step One analysis created by U.S. v. Mead Corp., 533 U.S. 218 (2001), National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U.S. 967 (2005), and U.S. v. Home Concrete & Supply, LLC, 132 S.Ct. 1836, 566 U.S. __ (2012). The take away is that the “arbitrary and capricious” standard in Chevron Step Two is not a toothless throwaway requirement but rather a real and potentially potent method of challenging Treasury regulations.About the Authors A partner in Steptoe’s Washington office, J. Walker Johnson formerly was a trial attorney in the Tax Division, US Department of Justice, where he litigated numerous tax cases. Since 1987 he has been an adjunct law professor in the LL.M. in Taxation program at Georgetown University Law Center, presenting the course Taxation of Financial Institutions and Products. At Steptoe, he has litigated numerous major tax cases, including cases such as New York Life (payment vs. deposit), American Electric Power (COLI policies), Textron (tax accrual workpapers), John Hancock (cross-border leveraged leasing), and others. He is recognized as a leading tax litigator by ChambersLegal 500Mr. Johnson can be reached at wjohnson@steptoe.com or +1 202.429. 6225. Of counsel in Steptoe’s Washington office, Alexis A. MacIvor’s practice focuses primarily on tax law. Her experience includes tax planning, tax controversy, and tax litigation. Ms. MacIvor’s tax controversy practice includes audit examinations, technical advice requests, protests, IRS Appeals proceedings, and refund claims. She has published and spoken on the Circular 230 regulations that impose broad practice requirements on tax advice provided by tax practitioners. Ms. MacIvor is an Adjunct Professor of Law in the LL.M. in Taxation program at Georgetown University Law Center and co-teaches the course Taxation of Financial Institutions and Products. Ms. MacIvor can be reached at amacivor@steptoe.com or +1 202.429.8035.