Accounting Today - July 2012

appear to open up the possibility that a future Supreme Court case might again differentiate between legislative and interpretive regulations: applying Chevron to interpretive regulations, but applying both Chevron and Brand X to legislative regulations.

The IRS may have to start taking more account of APA requirements in providing more explanations for

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the rationale for its positions in proposed regulations, as well as continuing to provide reasons for its responses to comments received in response to those regulations.

Tax practitioners may have to become familiar with non-tax cases that have developed the interpretations of the APA to determine how the APA applies to tax regulations.

Under the APA, tax practitioners may have more of a duty to submit comments to proposed regulations that threaten to have an adverse impact on clients.

The scope of the IRS’s current
authority to issue retroactive regu-
lations still needs to be clarified, at
least with respect to statutory lan-
guage enacted after 1996. AT
retroactive treatment back to the
beginning of the year is difficult to
predict. The congressional elec-
tions may impact what happens
legislatively as well.”
“The common understanding is
that there will be no significant leg-
islation prior to the election,” said
Richard Croghan, senior tax partner
at the San Francisco office of Moss
Adams LLP. “There’s also been a lot
of discussion on tax reform. This
might put a further damper on any-
thing happening in this session of
Congress.”
“All these things are part of what’s
wrong with the tax system,” said
Roger Harris, president of Padgett
Business Services. “Fix this, extend
that, incentify this — all directed to
change or extend or deal with short-
term problems. But while any of
these bills may provide a short-term
benefit or savings or incentive to do
something, it still doesn’t provide
a solution for the long term. Give
me predictability into the future so
I can make permanent plans.”
“Everything expires, and when it
gets close to the expiration date it
becomes a fight to see if it will last,”
he said. “It’s very difficult to plan for
small business and individuals, be-
cause when you look at everything
that’s set to expire at the end of this
year and the likelihood that nothing
will get done until after the election,
even then you don’t know what will
be done because we don’t know
how the election will turn out.”
“While I commend everyone for
offering something to help small
business, the best thing to do is
give them consistency and predict-
ability,” he said. “Consistency and
predictability will lead to simplifi-
cation.” AT

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