There's something about, 'Act in haste, repent at leisure.'

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Trump’s Broad Powers to Revoke Tax Regulations Issued By the Obama Administration

<h7 style="font-family: Yale; margin-top: 0.5rem; line-height: 2rem; color: rgb(0, 0, 0); font-size: 16px;">by Andy Grewal — Monday, Nov. 14, 2016

</h7>The IRS was actively involved in implementing various policy objectives of the Obama Administration and issued various controversial regulations, including those dealing with the Affordable Care Act. With Donald Trump soon to step into the Oval Office, one may wonder about the extent to which the Trump Administration can reverse regulations issued by the Treasury/IRS over the past 8 years.

Under general principles of administrative law, an agency cannot simply withdraw legislative regulations. Rather, some type of notice and explanation must be provided, though the precise requirements remain the subject of debate. See Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42 (1983); Kozel & Pojanowski, Administrative Change, 59 UCLA L. Rev. 112 (2011-2012). Thus, if the Trump Administration wishes to formally revoke controversial regulations, it can expect judicial challenges.

However, the Trump Administration’s ability to reverse controversial tax regulations may be relatively easy, due to the IRS’s odd habit of disclaiming its obligation to comply with the Administrative Procedure Act. When the IRS issues regulations, it will frequently allow the public a chance to comment, but it makes clear that it does so only out of administrative grace. See, e.g., “Health Insurance Premium Tax Credit,” 77 Fed. Reg. 30377, 30385 (May 23, 2012) (“Section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations.”). As prior posts explain, the IRS generally believes that its regulations are merely “interpretive” and thus exempt from the APA’s requirements.

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