Was it something we said? The government's defensive reply to TEI's amicus brief in Mead strikes a nerve.

We may not be the sharpest tools in the shed, but even we were able to sense that TEI struck a nerve with the brief amicus curiae it filed with the Supreme Court in the Mead Corporation case. (TEI's brief in Mead Corporation is reprinted in this issue, beginning on page 385.) Perhaps it was because TEI is a tax organization and we dared to get involved in a Customs case (one involving the deference to be given to administrative rulings). Perhaps it was because we quoted the Tax Court as disparaging revenue rulings as merely representing the Internal Revenue Service's litigating position. Then again, perhaps it was because we challenged the Solicitor General's summary of a seminal tax case that is discussed in most introductory level tax courses.

The case at issue is United States v. Correll, 389 U.S. 299 (1967), in which the Supreme Court held that a salesman whose travels did not involve a stop for sleep or rest was not entitled to a meals deduction because he was not "away from home" under section 162(a)(2) of the Internal Revenue Code. One of the things that professors try to get across in first-year tax courses is that Correll involves an interpretative Treasury regulation, which the Court found must be upheld if it represents a reasonable interpretation of the statute. Admittedly, the Court's reasoning is not the most articulate -- some people have suggested such a defect often plagues high court tax cases (witness INDOPCO) -- but in the more than three decades since the opinion was handed down the case has stood for the proposition that courts should defer to longstanding and reasonable Treasury regulations.

In its opening brief in United States v. Mead Corporation -- scheduled for argument on November 8 -- the government relies heavily on Correll to support its position that the appellate court erred in not recognizing the significant deference to be accorded revenue rulings. Demonstrating just how misleading it can be to selectively quote judicial opinions, the government artfully cites Correll in arguing that "an interpretive ruling adopted by the Treasury under the Internal Revenue Code must be upheld as long as it represents a `reasonable' interpretation of the statute." Nowhere in the brief does the government acknowledge that the "rule" discussed in Correll was a regulation, not a revenue ruling.

This oversight on the government's part is noteworthy because the document at issue in Mead lies far below regulations in the panoply of "rules" that government agencies promulgate. (Courts have frequently analogized Customs rulings to IRS revenue rulings, which is why TEI decided to get involved in the case; in some respects, however, they more closely resemble private letter rulings.) Accordingly, in its amicus brief in Mead, TEI takes issue with the government's citation of Correll, calling it "incorrect, disingenuous, and unpersuasive." (An early draft of the brief used even tougher language, but cooler heads prevailed.) The Institute explains that the Correll case actually involved a regulation, although the presence of an earlier revenue ruling is noted in a footnote in the decision to demonstrate its longstanding nature. An analogy to the government's reasoning not included in the brief is this: To say that Correll stands for according deference to rulings (because the regulation at issue in the case began its life as a ruling before being promulgated as a regulation) is akin to arguing that seedlings are effective bulwarks against the storm because many seedlings eventually become giant oaks that can withstand heavy winds.

Sometimes parties who file amicus briefs wonder whether their efforts are even noted. In this situation, TEI doesn't have to wonder. More than a page of the government's reply brief is devoted to attacking the footnote in which TEI criticizes government's facile citation of Correll. The government's dense 48-line footnote is itself remarkable because it continues the wordplay so much in evidence in the government's first brief. For example, the reply brief invokes the wording of section 7805(a) -- which grants the Treasury Secretary the authority to issue "all needful rules and regulations" -- to support its contention that rules and regulations are entitled to the same level of deference by the courts.

We agree, but there are rules and then there are rules. As Humpty Dumpty cautions Alice in Through the Looking Glass, the question is not whether the same word can mean different things. It's "which is to be the master -- that's all." In this case, the master should be the Administrative Procedure Act -- under which all government rulemaking emanates. That landmark legislation speaks in terms of "rules," not "regulations," and the term means an agency interpretation that is subject to formal notice and comment and published in the Federal Register. A "rule" (for APA purposes) may include a "regulation" if the regulation is issued as a formal rulemaking (as Treasury regulations are). Forgive us for being legalistic (we are, after all, lawyers), but in an administrative law context, a "rule" does not include a revenue "ruling," precisely because the latter is not subject to the APA's notice, comment, and publication safeguards. It's an important distinction and critical to the issue in this case because of the Supreme Court's prior decisions differentiating between formal rulemaking and informal agency pronouncements for deference purposes.(1)

The government also elliptically quotes a law review article to buttress its contention that "following" Correll, "circuit courts have uniformly held that Revenue Rulings receive significant deference." The article in question, however, discusses three Supreme Court cases, none of which is Correll. In addition, the word "following" in the government's reply brief does not mean "adhering to the reasoning of that case" or "applying the doctrine of stare decisis to reach a decision in a subsequent case on the basis of the decision in an earlier one." No, when deconstructed, it means simply "after." (It has to because Correll did not involve deference to revenue rulings; it involved deference to regulations. In other words, the government's wording is an example of the post hoc ergo procter hoc fallacy; just because one thing follows another does not means the first is the cause of the second.) A quotation from a second law review article -- averring that "non- deference is now a relic of the past" -- is equally cute. The reply brief omits the four words "[i]t may be that" that begin the cited sentence. We are not saying the citation is patently incorrect, just misleading. Too clever by half.

Wait, there's more. Although the reply brief characterizes the Institute's contention that revenue rulings represent mere litigating positions as "plainly incorrect," the government fails to support that statement. It cites not a single court case to support its own position (which is at odds with several court decisions cited in TEI's brief). Rather, it merely references the Treasury Department's own regulations. In other words, when backed into the corner, the government stamps its feet, raises its voice, and declares "Because we said so." (We thought only the Supreme Court -- or parents -- could do that.) The linguistic hair-splitting continues with a statement in the reply brief, whinging that TEI erred in suggesting that revenue rulings are not "officially" published and then averring that such rulings are "formally" published in the Internal Revenue Bulletin. Again, there is a difference between the two words. The APA requires formal rulemakings to be published in the Federal Register (after notice and comment), not printed in another "official" government publication (such as the Internal Revenue Bulletin). It is disappointing that the government chose to gloss over this nuance of administrative law rather than confronting it head on.

Perhaps we are too tough on the government. We are flattered that the government not only read our brief but felt compelled to respond to it. (We hope the Justices and their clerks do, too.) Mead does, of course, involve deference to a Customs classification ruling and the government attorneys arguing the case are not necessarily tax wonks. But if tax neophytes can tell the difference between a regulation and a revenue ruling (or be upbraided if they do not), should we expect any less from more learned counsel? Thus, we end up where we began: The government's citation of Correll in this case is, at best, disingenuous and, at worse, misleading.

(1) Speaking of legalistic, one of the odder things in the government's reply brief is the apparent effort to distinguish between "interpretive" and "interpretative" regulations. Our grammar teachers -- and Administrative Law professors -- beat into our head that there is only one proper word: "interpretative." We concede that "interpretive" has gained ground in usage circles, but if it is acceptable here -- a dubious proposition here since the APA uses "interpretative" -- it's as a synonym. Why then does the government brief use both terms in the same sentence, seemingly in contradistinction to each other: "Amicus Tax Executives Institute, Inc., is wrong in contending ... [that Correll] upheld an interpretative regulation rather than an interpretive ruling."? What it tells us is that either the government was trying to be clever -- to give the appearance of having more to say than it does --or that none of the lawyers who worked on the brief took (or remember) Latin.

Timothy McCormally and Mary Lou Fahey are attorneys on TEI's legal staff. They are listed as the Institute's counsel of record on the Institute's amicus brief in Mead.