-138-
After Mead, I don’t think it possible to draw distinctions
between the deference owed tax regulations issued under section
7805(a) and those issued under more specific authority.17 See
Boeing Co. v. United States, 537 U.S. 437, 448 (2003) (dismissing
dispute over distinctions between general and specific authority
regulations because both must be treated with deference).
If applying Chevron instead of National Muffler would lead
to a different result, this discussion might still not matter--
National Muffler (and the pre-Chevron cases that relied on it,
United States v. Vogel Fertilizer Co., 455 U.S. 16 (1982); Rowan
Cos. v. United States, 452 U.S. 247 (1981) were all tax cases,
16(...continued)
U.S.C. sec. 156 (“authority from time to time to make, amend, and
rescind * * * such rules and regulations as may be necessary”)];
Sullivan v. Everhart, 494 U.S. 83 (1990)[issued under 42
U.S.C.(a) 401 et seq. (Secretary authorized to “make rules and
regulations and to establish procedures not inconsistent with
this subchapter, which are necessary”)]; Massachusetts v. Morash,
490 U.S. 107 (1989)[issued under 29 U.S.C. sec. 1135 (“the
Secretary may prescribe such regulations as he finds necessary or
appropriate”)]; K Mart Corp. v. Cartier, Inc., 486 U.S. 281
(1988)[issued under 19 U.S.C. sec. 1526(d)(4) (“Secretary may
prescribe such rules and regulations as may be necessary”)].
17 See also Vermuele, “Mead in the Trenches,” 71 Geo. Wash.
L. Rev. 347, 350 (2003) (notice-and-comment rulemaking a safe-
harbor category); but see Coke v. Long Island Care at Home, Ltd.,
376 F.3d 118, 132 n.5 (2d Cir. 2004); Merrill, “The Mead
Doctrine: Rules and Standards, Meta-Rules, and Meta-Standards,”
54 Admin. L. Rev. 807, 814-15 (2002) (notice-and-comment
rulemaking begets Chevron deference only if regulation intended
to have force of law). (That distinction wouldn’t matter here,
because general authority tax regulations are intended to have
the force of law.)
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