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64 Duke L.J. Online 1 (2014-2015)

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Duke LawJournal Online


VOLUME 64                 OCTOBER                         2014



  WHICH INSTITUTION SHOULD DETERMINE
  WHETHER AN AGENCY'S EXPLANATION OF
        A TAX DECISION IS ADEQUATE?:
        A RESPONSE TO STEVE JOHNSON

                   RICHARD J. PIERCE, JR.t

    The participants in the 2014 Duke Law Journal Administrative
Law Symposium came to three important conclusions. First, the
Internal Revenue Service (IRS) and the Department of Treasury
(Treasury) have been systematically declining to act in accordance
with the duties imposed on them by the Administrative Procedure
Act (APA) for many decades.1 Second, courts should require the IRS
and Treasury to comply with the APA.2 Third, the Supreme Court has
signaled its intent to take administrative law to tax-as suggested
by the title of this symposium-by requiring the IRS and Treasury to
comply with the APA.3 I agree with Professor Steve Johnson that the
duty to explain why it has taken an action is one of the most
important duties that the APA imposes on the IRS and Treasury.4 I
am concerned, however, that the agencies that implement tax laws
lack the resources required to comply with the demands of the APA,
as those demands have been interpreted, expanded, and applied by
courts.


Copyright © 2014 Richard J. Pierce, Jr.
   t Lyle T. Alverson Professor of Law, George Washington University.
   1. See generally Amandeep S. Grewal, Taking Administrative Law to Tax, 63 DUKE L.J.
1625 (2014) (examining scholarship that discusses whether, and to what degree, the reasoned-
explanation requirement of the APA should apply to the IRS and Treasury).
   2. Steve R. Johnson, Reasoned Explanation and IRS Adjudication, 63 DUKE L.J. 1771,
1773 (2014).
   3. Id.
   4. Id. at 1774.

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