Tax Notes Today and Daily Tax Report Quote Monte Jackel on Regulatory Freeze Memo from White House
Akin Gump senior counsel Monte Jackel, a member of the firm’s tax practice, has been quoted in the Tax Notes Today story “Regulatory Freeze Might Upend Already Released Tax Guidance.” Jackel commented on a memorandum issued by White House Chief of Staff Reince Priebus that, the article says, could have big implications for several regulatory projects released in the waning days of the Obama administration.
The memo orders agencies to withdraw all regulations that have been sent to the Office of the Federal Register but that are not yet published. Jackel said that means these regulations, which, among other things, pertain to proposed partnership audit rules and publicly traded partnerships, will “for sure” be withdrawn without any legal effect, as it “very clearly applies to all regulations,” including those from the Department of the Treasury.
The article reports the Priebus memo also orders that regulations that were published but that have not yet taken effect be postponed for 60 days to allow for the review of factual, legal, and policy questions. In addition, agencies “should consider proposing for notice and comment” a delay in the effective date beyond that 60-day period and potentially proposing further rulemaking subject to notice and comment.
While similar freezes have been ordered in the past, Jackel noted, “When Obama did it, he asked only that agencies ‘consider extending’ [the effective date] for 60 days. Priebus gives no such discretion.” Jackel added that the definition of the term “not yet taken effect” in the Priebus memo is unclear. “I assume the term references the date used in the final or temporary regulations when it says on the first page when the regulation is effective and is not the actual effective date of the regulation, which can be different.”
Speaking to Bloomberg BNA’s Daily Tax Report, Jackel said the tax regulatory pipeline probably will not thaw until a new assistant secretary for tax policy is selected, which could be several months from now.