Kristin Hickman (Minnesota; Google Scholar) presents A Study Evaluating OIRA Review of Treasury Regulations (with Bridget C.E. Dooling (Ohio State; Google Scholar)) at San Diego today as part of its Tax Law Speaker Series hosted by Michelle Layser:
The second term of the Trump Administration portends significant changes to federal policy, many of which have received large amounts of heated attention both in public and in private. A lesser-known change is the anticipated reinstatement of centralized review of tax regulations by the Office of Information of Regulatory Affairs (OIRA). For many years, most tax regulations were exempt from OIRA review. That changed in the first Trump administration when the Treasury Department (Treasury) and OIRA signed a memorandum of agreement bringing more tax regulations within OIRA’s oversight sphere. In the Biden administration, Treasury and OIRA reversed course, this time clearly and unequivocally exempting all tax regulations without exception. It was a rare retreat from the expansive approach to presidential authority that dominates the modern era.
A cacophony of views exist on this topic. Subjecting any agency’s regulations to OIRA review remains controversial, with some favoring the greater transparency and interagency vetting associated with OIRA review and others objecting to additional bureaucratic delay and external meddling in agency prerogatives. Although our prior work puts us generally in the pro-OIRA camp, our goal with this Article is an empirical one: to evaluate how OIRA review of tax regulations worked in the past. With the first and only effort to study OIRA review of tax regulations comprehensively, we analyzed the preambles of every notice of proposed rulemaking and Treasury Decision proposing and adopting temporary and final tax regulations published from 2016 through June 2023—407 documents in all—across three presidential administrations, from the last year of the Obama administration, through the Trump administration’s full-scale effort to require tax compliance with EO 12866, and until the Biden administration’s move away from it. We document and discuss various findings regarding the time taken by OIRA review of tax regulatory documents, the comparative content of regulatory preambles, public comments received, and the tax subject matters addressed, as well as larger takeaways.
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