Restoring the lost anti-injunction act

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 action and also the Supreme Court's interpretation of the nearly identical Tax Injunction Act. A 2017 federal district court decision in Chamber of Commerce V. IRS, appealable to the Fifth Circuit, interprets the Anti-Injunction Act differently and could lead to a circuit split regarding pre-enforcement judicial review of Treasury regulations and IRS guidance documents. Other cases interpreting the Anti-Injunction Act more generally are fragmented and inconsistent. In an effort to gain greater understanding of the Anti-Injunction Act and its role in tax administration, this Article looks back to the Anti-Injunction Act's origin in 1867 as part of Civil War-era revenue legislation and the evolution of both tax administrative practices and Anti-Injunction Act jurisprudence since that time.