The Ninth Circuit’s denial of rehearing en banc in Altera Corp. v. Commissioner, with a forceful dissenting opinion by Judge M. Smith (joined by Judges Callahan and Bade). Several judges recused.
To recap: The Tax Court in Altera unanimously invalidated a high-dollar-value tax regulation on general administrative law grounds (e.g., State Farm). A split Ninth Circuit panel reversed, and now a divided but truncated en banc court has declined to rehear the case. A cert petition now seems at least possible, if not likely, and Judge Smith predicts that similar challenges will arise in other circuits. However the merits eventually are resolved, Altera is a big deal for tax administration. Even as individual judges in the Altera litigation have disagreed over how administrative law doctrines apply in the case, no judge has questioned whether those doctrines apply in the tax context. That would not have been true ten years ago. If you can cope with the tax-related background details, the administrative law analysis offered by the various opinions throughout this litigation is worth a read.