Prof. Hickman’s Article Debated by Sixth Circuit Panel

Prof. Hickman’s article with Gerald Kerska ’17, Restoring the Lost Anti-Injunction Act, 103 U. Va. L. Rev. 1683 (2017), was quoted and cited in both the majority and dissenting opinions in CIC Services, LLC v. Internal Revenue Service, No. 18-5019 (6th Cir. May 22, 2019).  Like the article, the case concerned whether tax regulatory actions are exempted from pre-enforcement judicial review by a provision of the tax code known as the Anti-Injunction Act. Though ultimately disagreeing with the article’s conclusion, the majority opinion by Judge Eric Clay acknowledged, as Hickman and Kerska assert, that “courts lack an overarching theory” of how and when to apply the Anti-Injunction Act, leading to “jurisprudential chaos.” The dissenting opinion by Judge John Nalbandian cited Hickman and Kerska in arguing that the panel majority’s interpretation is in tension with Supreme Court precedent and will render many Treasury regulations and IRS guidance documents “effectively unreviewable,” thus erode “public confidence in the quality and legitimacy of agency action.”