-141-
2.
How would review of this regulation look under Chevron?
Here again, I think that Mead has clarified the law, by
conflating the standard of “reasonableness” with the standard of
“arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law.” See Mead, 533 U.S. at 229.18
On what “reasonableness” means in the post-Mead world, I
generally agree with Judges Swift and Halpern.19 The question is
one of line-drawing, and substituting an 18-month rule for an
indeterminate and case-by-case consideration of the facts
certainly seems reasonable. It does nothing more than substitute
more definite deadlines for less definite ones and allows the
Commissioner to trigger them by sending a notice rather than
filing a substitute return.
18 See also Sunstein, Law and Administration after Chevron,
90 Colum. L. Rev. 2071, 2093 (1990) (“Chevron might be taken to
suggest that whenever an agency is entrusted with implementing
power--whether to be exercised through rulemaking or
adjudication--agency interpretations in the course of exercising
that power are entitled to respect so long as they are
reasonable”). See also CHW West Bay v. Thompson, 246 F.3d 1218,
1223 (9th Cir. 2001) (summarizing caselaw on Chevron step two as
requiring reasonableness in substantive interpretation and in the
process of making the decision).
19 There is an extensive commentary on Chevron step-two
standards. See Polsky, “Can Treasury Overrule the Supreme
Court?,” 84 B.U.L. Rev. 185, 192 (2004); Cunningham & Repetti,
supra n.15, 24 Va. Tax Rev. at 49.
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