How Does the Regulatory Flexibility Act Impact Tax Regulations?

Mr. Silver is a tax lawyer and a reader of PT.  Although a US citizen, he has a law office in Israel from which he dispenses advice on US tax issues.  He brought the suit because the recently enacted regulations interpreting IRC 965 create a significant recordkeeping burden.  While he did not owe any tax in 2018 as a result of this law change, he still seeks to challenge the regulations because of the burden and cost of compliance.  He was one of many who commented on the regulations and the burden they would impose on small businesses such as his.  He argues that the IRS inappropriately failed to address this burden.  Because he challenges the regulations outside of a deficiency or refund proceeding but rather in a straight up suit designed to strike the application of the regulations, the IRS began its defense by arguing that Mr. Silver lacked standing to challenge the regulations and that in any event the court lacked jurisdiction given the reach of the Anti Injunction Act.

The D.C. district court has allowed the challenge to move forward, marking a major victory for Mr. Silver.  In allowing the case to move forward and finding that Silver had standing to challenge the regs, the court found:

Here, Plaintiffs allege what is known as a “procedural injury,” that is, an injury resulting from the violation of a procedural right created by statute. See Ctr. for Law & Educ. v. Dep’t of Educ., 396 F.3d 1152, 1157 (D.C. Cir. 2005). In such cases, the redressability and imminence requirements of standing are relaxed. See Wildearth Guardians v. Jewell, 738 F.3d 298, 305 (D.C. Cir. 2013). The plaintiff need not show that “but for the alleged procedural deficiency the agency would have reached a different substantive result.” Id. at 306. Rather, she need only establish that the agency violated a procedural right designed to protect her interests, and that it is plausible “‘that the procedural breach will cause the essential injury to the plaintiff’s own interest.’” Ctr. for Law & Educ., 396 F.3d at 1159 (quoting Fl. Audubon Soc. v. Bentsen, 94 F.3d 658, 664–65 (D.C. Cir. 1996) (en banc)). In other words, “the requirement of injury in fact is a hard floor of Article III jurisdiction that cannot be removed by statute.” Summers v. Earth Island Inst., 555 U.S. 488, 497 (2009). “A procedural injury claim therefore must be tethered to some concrete interest adversely affected by the procedural deprivation . . . .” WildEarth Guardians, 738 F.3d at 305.

Plaintiffs’ alleged injury is the cost associated with complying with the TJCA’s transition tax regulations, which include certain “collection of information” and “recordkeeping obligations.”

As part of its efforts to dismiss the suit based on standing, the IRS argued that Mr. Silver’s real complaint was with the statute itself and not with the regulation.  As such, he could not attack the statute by seeking to change the regulation.  The district court disagreed, holding:

Plaintiffs are not challenging any specific regulation that might or might not be traceable directly to the TCJA. Rather, Plaintiffs allege that the agencies neglected to undertake procedural measures designed to protect small business from the burden of unwieldy and cost-intensive regulations—namely, the publishing of an initial and a final regulatory flexibility analysis, 5 U.S.C. §§ 601, 603(a), and a certification that the regulation has reduced compliance burdens on small businesses, 44 U.S.C. § 3506. Plaintiffs alleged injuries are therefore traceable to Defendants’ alleged violation of these separate statutory requirements, not the TCJA. Causation is easily satisfied.

In perhaps the most surprising aspect of the opinion, the court allowed the plaintiffs to move forward with its RFA challenge despite the broad reach of the AIA as typified by the DC Circuit’s prior opinions in Florida Bankers and Maze. (Guest blogger Pat Smith discussed Florida Bankers in two parts here and here, and Les blogged the Maze opinion here.) Readers may recall that the AIA prevents suits for the purpose of restraining the assessment or collection of taxes. The DC Circuit has previously taken a hard view on cases challenging the validity of regulations, and IRS predictably raised an AIA defense to the RFA challenge. Here, the district court suggested that courts may be willing to put the IRS to the burden of additional procedural hoops even if perhaps the AIA might ultimately prevent the court from granting the relief on the merits that Silver seeks, that is, a stay on enforcement of the regs.

With respect to the AIA, the district court disagreed with the IRS, stating:

Although “[t]he IRS envisions a world in which no challenge to its actions is ever outside the closed loop of its taxing authority[,]” the Act’s prohibition does not sweep so broadly: “‘assessment’ is not synonymous with the entire plan of taxation, but rather with the trigger for levy and collection efforts, and ‘collection’ is the actual imposition of a tax against a plaintiff.” Id. (cleaned up). Accordingly, the D.C. Circuit has refused to “read the [Anti-Injunction Act] to reach all disputes tangentially related to taxes.” Id. at 726–27. Rather, the Circuit has instructed that whether the Anti-Injunction Act prohibits a suit depends on whether the action is fundamentally a “tax collection claim,” id. at 727 (quoting We the People Found., Inc. v. United States, 485 F.3d 140, 143 (D.C. Cir. 2007)), which the court must determine based upon “a careful inquiry into the remedy sought, the statutory basis for that remedy, and any implication the remedy may have on assessment and collection,” id….
 
Plaintiffs do not seek a refund or to impede revenue collection. Instead, they challenge the IRS’s adopting of regulations without conducting statutorily mandated reviews designed to lessen the regulatory burden on small businesses. As relief, they ask the court simply to compel the agencies to do what the law requires—Regulatory Flexibility Act and Paperwork Reduction Act analyses. Tax revenues and their collection are unaffected by such relief. The Anti-Injunction Act therefore presents no barrier to Plaintiffs’ claims.

We hope to have Mr. Silver and his attorney, Stu Bassin, who has written several prior PT guest posts, write for us in the near future to expand on this brief introduction to the case.  For those interested in the issue, a good place to start is a GAO report discussing the failure of some agencies to appropriately follow the RFA.  According to the complaint in this case, the IRS regularly fails to comply with the RFA requirements.  For those interested in the specifics of this case please see the amended complaint, the motion to dismiss, the IRS brief in support of its motion and plaintiff’s brief opposing the motion.

The ability to challenge a regulation and overcome the hurdle of the AIA has become a hot issue.  Les wrote about it here in the context of CIC Services.  He has also recently added a significant discussion of the scope of AIA in the Saltzman-Book treatise, IRS Practice and Procedure at ¶1.6.  That revision is set to be published in the treatise next month. We expect CIC Services to seek cert and offer the Supreme Court the opportunity to step in and clear the murky waters surrounding the application of the AIA to challenges regarding tax regulations.  Of course, Mr. Silver’s case goes beyond raising the AIA challenge and throws down a significant challenge to the IRS practice of promulgating regulations as it relates to compliance with the RFA.  With the initial success here, it will not be surprising to see this issue raised much more frequently as parties challenge regulations.