At the May 2012 American Bar Association, Tax Section Meeting in Washington, D.C., IRS Chief Counsel William Wilkins commented (paywall link) on how the recent decision in Home Concrete will affect future regulatory interpretation of statutes. Wilkins argued that Supreme Court opinion pre-Chevron must be taken as removing all statutory ambiguity and thus leaving no room for the IRS to interpret differently. Post-Chevron decisions would require closer scrutiny for whether the Supreme Court has found “ambiguity” in the statute allowing regulatory interpretation by the Service. In effect, the Supreme Court can make an ambiguous statute unambiguous for the purposes of Chevron analysis. At the May 2012 American Bar Association, Tax Section Meeting in Washington, D.C., IRS Chief Counsel William Wilkins commented (paywall link) on how the recent decision in Home Concrete will affect future regulatory interpretation of statutes. Wilkins argued that Supreme Court opinion pre-Chevron must be taken as removing all statutory ambiguity and thus leaving no room for the IRS to interpret differently. Post-Chevron decisions would require closer scrutiny for whether the Supreme Court has found “ambiguity” in the statute allowing regulatory interpretation by the Service. In effect, the Supreme Court can make an ambiguous statute unambiguous for the purposes of Chevron analysis.

According to Wilkins, Circuit and other lower Courts may not be able to remove ambiguity in the same way as the Supreme Court can; as such, there may be room for the IRS to promulgate regulations that differ from a Circuit Court statutory interpretation. While these comments are not an official interpretation of Home Concrete by Chief Counsel’s Office, they do provide insight as to how the Service views the recent decision.