Andy Grewal (Iowa; Google Scholar) presents Tax Regulations After Loper Bright, 2025 Mich. St. L. Rev. ___, at Missouri-Columbia today as part of its Tax Policy Colloquium hosted by David Gamage:

After decades of uncertainty, the Supreme Court, in Mayo v. United States, finally resolved a conflict over the proper deference standard for tax regulations. The Chevron doctrine, not the National Muffler doctrine, would govern whether a tax regulation properly interpreted a statute.

This period of calm would last for only a little over a decade. Through Loper Bright, the Court has now killed any form of judicial deference to agency regulations. Loper Bright upsets not only Chevron, but nearly a century’s worth of tax-specific precedents that extended deference to Treasury regulations.

This Article, prepared for the Michigan State Law Review’s Tax & Policy Symposium, explores the new administrative review framework for tax regulations. It divides the analysis between general authority and specific authority regulations. They will now face markedly different review standards. Though the sky will not fall, the new review frameworks pose difficult interpretive challenges that will take decades to resolve. 

Conclusion
Tax regulations have faced a rollercoaster ride over the last few decades. With Loper Bright, the ride may have finally stopped. National Muffler and Chevron have given way. The Skidmore and reasoned decisionmaking standards will now govern tax regulations.

Alas, another rollercoaster ride might be about to begin. The new Loper Bright standards present challenging interpretive questions. Those standards will require courts to more actively engage with federal statutes. This engagement may be difficult, especially for the tax laws.

In the past, courts found some relief in the tax context because they could easily defer to tax regulations. But Loper Bright now forbids deference. A judge must always apply his independent judgment to the construction of a tax statute even when, as Learned Hand frankly admitted, the tax code’s words dance before his “eyes in a meaningless procession: cross-reference to cross-reference, exception upon exception.”

Loper Bright’s implications for the tax system will take years, if not decades, to resolve. Academic contributions related to tax and administrative law issues may thus become more important than ever. I am thankful that the Michigan State Law Review Tax & Policy Symposium has provided a forum to explore those issues.

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