-133-
Understanding the problem this causes requires a brief
introduction into the ambiguity of the terms “interpretive” and
“legislative” when used to describe regulations. In tax law,
“legislative” regulations are those issued by the Secretary under
a specific grant of authority in a particular Code section.
“Interpretive” regulations, on the other hand, are all those
regulations issued under the Secretary’s general authority to
prescribe all “needful rules and regulations.” See sec. 7805(a).
“Interpretive” regulations issued under sec. 7805(a) are,
however, almost always sent through notice-and-comment
rulemaking.13
In administrative law, these same terms mean something
different. Under the Administrative Procedure Act, “legislative
regulations” are those that create new legal duties binding on
the parties and the courts. Merrill & Watts, Agency Rules With
the Force of Law: The Original Convention, 116 Harv. L. Rev. 467,
477 (2002). They must generally be subjected to notice-and-
comment rulemaking. 5 U.S.C. sec. 553(b) (2000).
“Interpretative” regulations, in contrast, only clarify existing
13 Saltzman, IRS Practice & Procedure, 2d ed., par. 3.02[2];
sec. 601.601, Statement of Procedural Rules.
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