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Robert M. Russell Quoted In Law360 Article Entitled “Speed Of TCJA Passage May Handicap Treasury In Disputes”

Robert M. Russell was quoted in a recent Law360 article entitled “Speed of TCJA Passage May Handicap Treasury in Disputes,” published on March 31, 2021. Russell observes that the swift passage of the TCJA has led to a host of regulatory disputes with the Treasury and Internal Revenue Service which raise questions of legislative intent.

The article notes:

In recent years, and especially with TCJA rules, Treasury has issued lengthy preambles that painstakingly go through comments, according to Robert Russell, counsel at Kostelanetz & Fink LLP.

“It’s a completely different world on how explicit they are,” he said.

After the Tax Court’s decision in the Altera case, Treasury and the Internal Revenue Service knew there might be challenges to the validity of their regulations, according to Russell. The question now, he said, isn’t whether they addressed comments, but if rule writers addressed them sufficiently.

“In the TCJA regs, Treasury and the IRS put their best foot forward in terms of knowing that this may be challenged,” he said. “Now it’s just a matter of: Did they do it right?”

Normally when there’s an attempt to interpret legislative intent, there are a lot of hearing discussions from when the legislation was progressing that provide context for the intent behind a code section, according to Russell. That wasn’t the case with the TCJA, he said.

“Because TCJA was just so quickly run through, there wasn’t that time and that added context that gave you a clear direction on how the regs should go,” Russell said.

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