Oral Argument Today in Loving v IRS

0 Flares Filament.io 0 Flares ×

Today was the oral argument in the DC Circuit Court of Appeal for the Loving v IRS case. We have previously blogged on some aspects of the case, here and here. As most readers know, the case involves the government’s appeal of the district court case decision that invalidated the most of the IRS’s initiative to regulate previously unregulated tax return preparers

The case is incredibly significant on both a practical and theoretical level. The government’s initiative involves a major commitment of resources, both private and public, and was a key (though controversial) aspect of its plan to attempt to reduce parts of the tax gap.  It also implicates significant issues of administrative law, including issues like the proper application of the Chevron doctrine.

The DC Circuit posts audio recordings of its arguments. If you click here the recording will download.

Later this week the Villanova Law Review hosts the Shachoy symposium, which will include a panel on Loving. I will moderate. On the panel, we will have a wide range of views. One of our panelists is Dan Alban, from the Institute for Justice. Dan is the lawyer who argued the case for the preparers who brought the action, and who offered insightful comments on our Loving posts. Another panelist is former Commissioner Larry Gibbs (who co-signed one of the amicus briefs arguing in favor of the IRS regime, along with a number of former commissioners). Professor Michelle Drumbl from Washington & Lee will offer views from the perspective of as a tax clinic director and scholar who has written generally on issues relating to tax compliance. Professor Steve Johnson from Florida State will bring his deep knowledge of the intersection of administrative law and tax law to help put the case in broader context.  I’ll post more on the case and the symposium itself in the next few weeks.




Avatar photo About Leslie Book

Professor Book is a Professor of Law at the Villanova University Charles Widger School of Law.


  1. I just listened to the content. Court really went after Mr. Rothenberg (DOJ) and did so right away. I believe it was Judge Sentelle who jumped in during Mr. Rothenberg’s first or second sentence of his opening statement. All three Judges seemed fairly skeptical, and asked a lot of questions. Mr. Rothenberg responded well, though. There were a lot of points where he seemed to be disagreeing with the Court, and stated as much.

    Mr. Alban got through significantly more of his opening statements. He was very well prepared and did a strong job responding to his questions. Not to diminish Mr. Alban’s responses, as he was great, but the questions were less aggressive, and a few seemed like underhand lobs to allow him to make arguments the court wanted to hear. An interesting quick back and forth on Chevron step one and step two, and how the arguments overlapped.

    My initial reaction was that the Court was inclined to side with Mr. Alban. I should note, I have an abysmal track record of picking such things.

Comment Policy: While we all have years of experience as practitioners and attorneys, and while Keith and Les have taught for many years, we think our work is better when we generate input from others. That is one of the reasons we solicit guest posts (and also because of the time it takes to write what we think are high quality posts). Involvement from others makes our site better. That is why we have kept our site open to comments.

If you want to make a public comment, you must identify yourself (using your first and last name) and register by including your email. If you do not, we will remove your comment. In a comment, if you disagree with or intend to criticize someone (such as the poster, another commenter, a party or counsel in a case), you must do so in a respectful manner. We reserve the right to delete comments. If your comment is obnoxious, mean-spirited or violates our sense of decency we will remove the comment. While you have the right to say what you want, you do not have the right to say what you want on our blog.

Speak Your Mind