9th Circuit Rehearing Denial in Altera v Commissioner

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.


kristin hickman

Professor Kristin Hickman is a legal scholar working in the fields of tax administration, administrative law, and statutory interpretation. In addition to the Of Interest blog, Professor Hickman authors the Administrative Law Treatise (with co-author Richard J. Pierce, Jr.) and has published scholarly articles in Columbia Law Review, Virginia Law Review, Cornell Law Review, Duke Law Journal, Georgetown Law Journal, Vanderbilt Law Review, and many other prominent U.S. and international publications. She holds the titles of Distinguished McKnight University Professor and Harlan Albert Rogers Professor of Law at the University of Minnesota Law School.

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