Monte Jackel Quoted in Tax Notes Today on FOIA Suit Filed Against Treasury and IRS

Monte Jackel, senior counsel in the tax practice at Akin Gump, has been quoted in the Tax Notes Today article “Watchdog Suit Seeks Detail on Treasury Regs Review Waiver Pact,” regarding a lawsuit filed by Cause of Action (CoA) against the Department of the Treasury and the IRS under the Freedom of Information Act. CoA is seeking records on procedures used to determine when guidance is subject to Office of Management and Budget (OMB) review and the requirements of the Congressional Review Act.

At issue in the suit, the article reports, is a 1983 memorandum of agreement between Treasury and OMB that waives review procedures of a particular executive order for all IRS regulations except legislative regulations that are designated as major. The memorandum has the effect, as the article notes, of exempting many regulations, as well as revenue rulings and revenue procedures, from a more detailed analysis and review.

Jackel said he was puzzled by CoA’s requests, but he argued that the group was presenting legitimate inquiries into how the review practice worked before President Trump came into office, what supported that policy, and whether it was good tax policy.

“This is so, principally, because tax regulations generally seek to interpret tax statutes for the general public and their advisers and are not the same type of regulation as are, say, EPA regulations,” Jackel said. “On the other hand, to say that ‘significant regulatory actions’ do not include IRS regulations because the statute causes the effects, and not the regulations themselves, is effectively to limit ‘significant regulatory actions’ to those where the regulations go beyond what the statute authorizes or permits, which does seem like regulatory overreach to some degree.”