Document Type


Publication Date


Publication Title

State Tax Notes

Publication Title (Abbreviation)

St. Tax Notes



First Page

441, 443


We have been engaged in an extended exploration of doctrines under which courts may defer to positions and interpretations by state and local tax agencies. The immediately prior installment of this column discusses such deference under state equivalents of what is known as the Auer or Seminole Rock principle, under which courts usually defer to agency interpretations of the agencies’ own ambiguous regulations.

About two weeks after the publication of that installment, the U.S. Supreme Court handed down a major new decision on the Auer principle: Talk America, Inc. v. Michigan Bell Telephone Co. Talk America bids fair to be influential in future Auer-type cases – at the state and local levels as well as at the federal level because Supreme Court decisions often are carefully analyzed by and are cited by state and local courts.

In state and local tax cases, the Auer rule typically is asserted by the revenue agency and is opposed by the taxpayer. Talk America offers ammunition to both sides. The first part of this column describes the opinion for the Court in Talk America. The second part considers Justice Antonin Scalia’s concurrence and an important law review article cited by that concurrence. The last part offers preliminary thoughts on the possible future significance of Talk America in state and local cases.


© 2011 Steve R. Johnson


First published in State Tax Notes.

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