Administrative Procedure Act Archives

3M Company, IRS File Opening Briefs in “Blocked Income” Case

by Roger J. Jones | Apr 18, 2016 | Appellate Courts, Transfer Pricing Resource, Trial Courts, Uncategorized

As noted in an earlier post, 3M Co. v. Commissioner, T.C. Dkt. No. 5816-13, involves 3M’s challenge to the Internal Revenue Service’s (IRS’s) determination that Brazilian legal restrictions on the payment of royalties from a subsidiary in that country to its US parent should not be taken into account in determining the arm’s-length royalty between 3M and its subsidiary under Treas. Reg. § 1.482-1(h)(2). The case has been submitted fully stipulated under Tax Court Rule 122, and the parties’ simultaneous opening briefs were filed on March 21, 2016.

Citing First Sec. Bank of Utah and cases following it, 3M first argues that “[c]ase law consistently holds that the Commissioner cannot employ section 482 to allocate income that the taxpayer has not received and cannot receive because a law prevents its payment or receipt.” Under this line of authority the IRS’s proposed allocation of royalty income to 3M is precluded by Brazilian law. This result is not changed by Treas. Reg. § 1.482-1(h)(2) because that regulation is invalid.

The regulation is “procedurally invalid,” 3M argues, because Treasury and the IRS failed to satisfy the requirements of § 553 of the Administrative Procedure Act (APA) when they promulgated the regulation. They did not respond to significant comments criticizing the proposed regulation; nor did they articulate a satisfactory justification or explanation for the regulation. They thus did not engage in the “reasoned decisionmaking” required by the APA and case law such as State Farm and Altera when an agency issues regulations. (more…)

Ax v. Commissioner: The Tax Court Reaffirms that It Is Not Subject to the APA

by Jeffrey M. Glassman and McDermott Will & Emery | Apr 12, 2016 | Appellate Courts, Court Procedure Matters, Trial Courts, Uncategorized

On April 11, 2016, the US Tax Court issued its T.C. opinion in Ax v. Commissioner. The notice of deficiency in the case determined that certain premium payments made to a captive insurance company were not established by the taxpayer to be (1) insurance expenses and (2) paid. But this is not a run of the mill captive insurance case—at least not yet.

The Internal Revenue Service (IRS) moved for leave to amend its answer in the case to assert additionally that (1) the taxpayers’ captive insurance arrangement lacked economic substance and (2) amounts paid as premiums were neither ordinary nor necessary (and to allege facts in support of both assertions). The taxpayers opposed, citing Mayo Foundation for Med. & Educ. Research v. United States, 562 U.S. 44, 55 (2011), and arguing that the Administrative Procedure Act (APA) and SEC v. Chenery, 318 U.S. 80 (1943) barred the IRS from “raising new grounds to support [the IRS’s] final agency action beyond those grounds originally stated in the notice of final agency action.” The taxpayers also argued that the IRS’s new assertions constituted “new matters” that did not meet required heightened pleading standards under the Tax Court’s Rules of Practice and Procedure. Ultimately, the Tax Court sided with the IRS.

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Tax Court Announces New Chief Judge and Special Trial Judge

by McDermott Will & Emery | Mar 25, 2016 | Trial Courts, Uncategorized

On March 24, 2016, the Tax Court announced that Diana L. Leyden has been selected as a Special Trial Judge scheduled to assume her duties in June 2016. Ms. Leyden most recently has been the Taxpayer Advocate in the New York City Department of Finance, but previously spent over 15 years as the Director of the Low Income Taxpayer Clinic at the University of Connecticut School of Law. She received the American Bar Association Tax Section Janet Spragens Pro Bono Award in 2005 for her work on behalf of low-income taxpayers. Ms. Leyden, who previously clerked at the Tax Court and spent several years in private practice, should be a welcomed addition to the bench. The Tax Court’s press release can be found here.

As previously announced by the Tax Court on February 29, 2016, Judge L. Paige Marvel will begin serving a two-year term as Chief Judge of the Tax Court beginning June 1, 2016. Judge Marvel was appointed to the Court in 1998. Prior to joining the Court, she focused on federal and state tax matters and controversies. As readers of this blog may know, Judge Marvel was the authoring Judge of the Court’s recent fully-reviewed opinion in Altera Corp. v. Commissioner, 145 T.C. No. 3 (July 27, 2015), which struck down cost-sharing regulations under the Administrative Procedure Act. The Tax Court’s press release can be found here.