In a recent podcast, Tax Notes legal reporter Mary Katherine Browne discussed the potential fall of the Chevron doctrine and its implications for the tax community with Frank Agostino of Agostino & Associates. The Chevron doctrine, established in 1984, requires courts to defer to regulatory interpretations of ambiguous statutes if those interpretations are reasonable. However, there has been a growing trend among conservative justices to re-evaluate Chevron, as seen in recent cases such as Loper Bright Enterprises v. Raimondo and Relentless v. Department of Commerce.
During their conversation, Agostino explained that Chevron allows agencies to fill in the gaps of ambiguous laws, but the courts have increasingly deferred to agency interpretations as the government’s litigating position, rather than just filling in gaps. He argued that overturning Chevron and returning to traditional rules of statutory construction, like the Skidmore standard, would promote a more balanced approach to interpreting laws and regulations.
Agostino expressed confidence in the eventual demise of Chevron and discussed the impact it could have on past tax cases that have relied on Chevron deference. He highlighted cases like Oakbrook and 3M as examples where the outcome may have been different without Chevron deference. He also noted that the potential fall of Chevron could lead to more settlement of cases and a greater emphasis on the traditional rules of statutory construction.
Looking ahead, Agostino suggested that the demise of Chevron could influence how tax laws are written by Congress, as lawmakers may be more mindful of ambiguity and potential changes in interpretation over different administrations. He emphasized the importance of grassroots lobbying efforts to ensure fair and clear legislation that aligns with congressional intent.
In conclusion, Agostino emphasized the need for practitioners to be more involved in the legislative process and advocate for fair and clear tax laws. He encouraged practitioners to engage in grassroots lobbying efforts and push for technical corrections or changes to laws that may appear discriminatory or unclear. Overall, the potential fall of Chevron could lead to a more balanced and transparent approach to interpreting tax laws and regulations, ultimately benefiting the tax community as a whole.
