Several notable court opinions were issued 2016 dealing with a variety of substantive and procedural matters. In our previous post – Tax Controversy 360 Year in Review: Court Procedure and Privilege – we discussed some of these matters. This post addresses some additional cases decided by the court during the year and highlights some other cases still in the pipeline.

Transfer Pricing

Transfer pricing remains a hot topic in litigation. As discussed here, here and here the Tax Court accepted and rejected taxpayer arguments in several high-profile cases.

We have also written frequently on the 3M case, which involves whether the Internal Revenue Service’s (IRS) blocked income regulations are valid. That case has been submitted fully stipulated to the Tax Court and all briefs have been filed. For prior coverage, see here, here, and here.

Practice point: Transfer pricing is a point of emphasis with the IRS. Given that slight changes to a taxpayer’s transfer pricing methodologies can produce substantial adjustments, taxpayers need to continue to monitor judicial developments in the area. This includes not only how courts view the arm’s length standard, but also taxpayer challenges to the IRS’s rulemaking authority.

The Administrative Procedures Act and Deference to IRS Interpretations

Following the Supreme Court’s 2011 Mayo opinion, taxpayers have increasingly turned to the Administrative Procedures Act (APA) to challenge IRS actions. In addition to the posts linked above regarding APA challenges in transfer pricing cases, we have written about the QinitiQ and Ax cases dealing with whether an explanation provided in a notice of deficiency is insufficient under the APA. See here and here]. Additionally, the Supreme Court provided guidance in a non-tax case regarding the proper application of the APA in the analysis of the validity of agency regulations.  For more coverage, see here.

Another area we have frequently posted on is the level of deference afforded to IRS interpretations. Discussions of general deference principles and cases decided in 2016 can be found here, here, here, here, and here]. Additionally, as we noted here, the Supreme Court recently granted certiorari to decide the limits of Auer deference.

Practice point: Whether the IRS’s position in published or unpublished guidance is afforded deference, and, if so, the appropriate level of deference, is important to taxpayers both in planning their transactions and defending them before the IRS and the courts. This area continues to evolve, particularly in the area of Auer deference, and taxpayers need to be aware of new developments.

Information Reporting Requirements

The IRS’s Offshore Voluntary Disclosure Program remains a tool for noncompliant taxpayers to come to the IRS to resolve outstanding tax reporting matters. For an update on this subject, see here. The release of the Panama Paper in April 2016, which we wrote about here received considerable attention. A recent opinion out of a district court in California also provided more guidance on the willful standard for failure to file foreign information reporting forms. See here.

Practice point: OVDP remains open, but it could be closed by the IRS at any time. Noncompliant taxpayers need to consider all options in this area, and should consider which option might be best depending on their specific situation.


The IRS has been increasingly asserting penalties in cases. We recently discussed here some of the penalty procedural rules at issue in the Graev case. We also discussed the substantial authority defense, as applied by the Fifth Circuit in Chemtech Royalty Associates. See here.

Practice point: Taxpayers who are facing penalty determinations and assessments should consider whether they may have any procedural challenges to the IRS’s method of approval and assessment of penalties, in addition to considering the more standard, substantive defenses like reasonable cause and substantial authority. It is important to adequately document your position prior to taking a tax return position to avoid any initial assertion of penalties by the IRS.