Amandeep Grewal (Mayer, Brown, Rowe & Maw, Washington, D.C.) has posted Substance Over Form? Phantom Regulations and the Internal Revenue Code.  Here is the abstract:

This paper addresses the appropriate response to tax statutes that call for the issuance of regulations, but that have been ignored by the Secretary. The courts and the IRS have taken the unusual step of treating these statutes as self-executing, notwithstanding the absence of regulations, and have invoked phantom regulations to enforce the statutes. Several commentators have analyzed the Tax Court’s and the IRS’s approaches, but have focused mostly on cases interpreting delegations found in the Internal Revenue Code. Because those cases themselves are inconsistent, it is not possible to extract a clear rule from analysis of those cases alone. Surprisingly, a close examination of non-tax sources reveals a clear (if imperfect) solution to the problems posed by spurned delegations. This paper fills the void in the current literature by examining these overlooked authorities.