Kristin E. Hickman

Kristin E. Hickman
University of Minnesota | UMN · Law School

J.D.

About

29
Publications
2,522
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211
Citations

Publications

Publications (29)
Article
This Essay describes and connects the dots between three strands of scholarship-concerning capital gains taxation, tax compliance costs, and tax system complexity-produced by Professor Chris Evans over two decades.
Article
Should Treasury regulations and IRS guidance documents be eligible for pre-enforcement judicial review? The D.C. Circuit's 2015 decision in Florida Bankers Ass'n V. U.S. Department of the Treasury puts its interpretation of the Anti-Injunction Act at odds with both general administrative law norms in favor of pre-enforcement review of final agency...
Article
For over thirty years, Chevron deference has been the target of criticism. Now, some judges and legislators are calling for an end to Chevron, and legal scholars are heralding the doctrine's retreat. Chevron may be evolving, as common law often does. But claims that Chevron is in decline are overblown, and efforts to overturn Chevron in any meaning...
Article
In 2012, the Government Accountability Office surprised many administrative law specialists by reporting that fully 35% of major rules and 44% of nonmajor rules issued by federal government agencies lacked prepromulgation notice and opportunity for public comment. For at least most of the major rules, however, the issuing agencies accepted comments...
Article
This amicus brief was filed before the United States Supreme Court, supporting the petition for certiorari in Florida Bankers Association v. United States Department of the Treasury, No. 15-969. The case concerns whether the Anti-Injunction Act, 26 U.S.C. s. 7421(a), precludes pre-enforcement judicial review of challenges against the validity of Tr...
Article
Traditional perceptions of tax exceptionalism from administrative law doctrines and requirements have been predicated at least in part on the importance of the tax code's revenue-raising function. Yet, Congress increasingly relies on the Internal Revenue Service to administer government programs that have little to do with raising revenue and much...
Article
In 2011, in Mayo Foundation for Medical Education and Research v. United States, the Supreme Court held that general authority Treasury regulations adopted using notice-and-comment rulemaking carry the force of law and thus are eligible for Chevron deference. In the wake of Mayo, courts and scholars are now struggling with its implications for whet...
Article
This amicus brief was filed before the United States Supreme Court in United States v. Quality Stores, Inc., No. 12-1408, to discuss whether Chevron or Skidmore provides the appropriate standard for judicial review of IRS revenue rulings. The brief summarizes and expands upon arguments made in some of my past scholarship.
Article
In this paper, we examine whether “panel effects” – that is, the condition where the presence, or expected voting behavior, of one judge on a judicial panel influences the way another judge, or set of judges, on the same panel votes – varies depending upon the form of the legal doctrine. In particular, we consider whether the hand of an ideological...
Article
This amicus brief was filed before the United States Supreme Court in United States Home Concrete & Supply, LLC, No. 11-139, to discuss two issues raised by the procedures used by the Treasury Department in adopting Treas. Reg. 301.6501(e)-1, at issue in the case: (1) whether Treas. Reg. 301.6501(e)-1 is procedurally invalid under the Administrativ...
Article
This Essay was written for a symposium entitled The Delicate Balance: Revenue Authority Discretions and the Rule of Law, held in Prato, Italy on September 23-24, 2010. The purpose of the symposium was to consider how different countries approach and think about delegations of decision-making authority to tax administrators, and the implications of...
Article
This amicus brief provides context for the United States Court of Appeals for the District of Columbia Circuit concerning two issues: (1) the justiciability of procedural challenges under the Administrative Procedure Act against Internal Revenue Service guidance documents, and (2) the interrelationship between the Internal Revenue Code's Anti-Injun...
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Law is, of course, always a product of its history. But for some regimes, history matters both more and differently than for others. In some instances, the requirements and scope of a regulatory regime’s coverage are sufficiently attenuated from statutory text and purpose that they can only be explained or understood by reference to history. At its...
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Administrative law scholars have debated the seeming paradox of a field with general legal principles applied to a diverse group of agencies. This essay is an online response to an article by Professors Richard Levy and Robert Glicksman in which they observed a silo effect in which litigants and judges rely heavily on agency-specific precedents, le...
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This Symposium Essay compares current patterns and practices surrounding IRS utilization of IRB guidance (revenue rulings, revenue procedures, and notices) with administrative law doctrine concerning informal agency guidance documents. In administrative law jurisprudence, the distinction between legislative and interpretative rules (and thus whethe...
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In earlier work, I found that more than 40% of Treasury regulations studied are susceptible to legal challenge for their failure to satisfy Administrative Procedure Act rulemaking requirements. Given this finding, why is it that taxpayers rarely raise such claims? The article explores this question and focuses particularly on statutory and doctrina...
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In the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), Congress included a provision requiring bankruptcy courts evaluating individual debtors' financial circumstances to utilize certain monthly expense standards developed by the Internal Revenue Service for assessing taxpayers' ability to pay their taxes (the Standards)....
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This Article offers a comprehensive examination of the Skidmore standard for judicial review of agency legal interpretations as applied by the courts in the period since the Supreme Court revitalized Skidmore in United States v. Mead Corp. First, the Article documents an empirical study of five years worth of Skidmore applications in the federal co...
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The Treasury Department and the Internal Revenue Service have a strange relationship with Administrative Procedure Act notice-and-comment rulemaking procedures. Treasury acknowledges the general applicability of APA procedural requirements when it promulgates regulations interpreting the Internal Revenue Code. Treasury also maintains that most Trea...
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Tax shelters generally are designed to take advantage of statutory ambiguity in the tax code. In the civil context, depending upon the format of the IRS's interpretation, a finding of ambiguity typically means that the reviewing court should apply one or another doctrine of judicial deference in evaluating the government's interpretation: either th...
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This Article takes the controversial position that Treasury regulations are entitled to judicial deference under the Chevron doctrine, as clarified by the Supreme Court in the more recent Mead case, whether those regulations are promulgated pursuant to specific authority delegated in a substantive provision of the Internal Revenue Code or in the ex...
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In granting certiorari in the case of DaimlerChrysler Corp. v. Cuno, the Supreme Court asked the parties to brief whether respondents have standing to challenge Ohio's investment tax credit. This report applies modern standing doctrine to the Cuno case and concludes that the Cuno plaintiffs do not have standing to raise their claims in federal cour...
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In 2004, in Cuno v. DaimlerChrysler, Inc., 386 F.3d 738 (6th Cir. 2004), the Sixth Circuit invalidated the Ohio investment tax credit on dormant Commerce Clause grounds while upholding a property tax waiver by the City of Toledo and local school boards against a similar challenge. The Supreme Court granted DaimlerChrysler's petition for certiorari...
Article
In granting certiorari in the case of DaimlerChrysler Corp. v. Cuno, the Supreme Court asked the parties to brief whether respondents have standing to challenge Ohio's investment tax credit. Looking at the posture of the case, this essay argues that the Supreme Court is likely sending a signal that it hopes to overturn the Sixth Circuit decision on...
Article
As the two-step Chevron approach to determining when courts should defer to agency interpretations of statutes has expanded in influence, questions about when the Chevron doctrine applies have proliferated. This article identifies fourteen questions about Chevron's domain that remain unresolved. The article argues that two background principles are...

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