AICPA CEO Barry Melancon commented on two recent Supreme Court cases recently, saying that they create uncertainty, which makes tax professionals uncomfortable, The Journal of Accountancy reported. Melancon is also the CEO of the Chartered Institute of Management Accountants (CIMA).

In the area of tax law, "our profession generally likes certainty," Melancon said at a recent AICPA Town Hall. He added, "We like to be able to get to a conclusion. We'd like to know something can be done and [that] there's this precedent and there's [an] interpretation that this supports a tax strategy. And there's going to be a significant amount of uncertainty in these things going forward, absent some new, different court decisions."

Melancon discussed two cases. The first was Loper Bright Enterprises v. Raimondo, , in which the high court overturned its 1984 decision in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., and held that the Administrative Procedure Act requires courts to exercise their independent judgment in deciding whether an agency has acted within its statutory authority; courts may not defer to an agency's interpretation of the law just because a statute is ambiguous.

The second was Corner Post, Inc. v. Board of Governors of the Federal Reserve System, which involved debit card swipe fees. The court held that the six-year statute of limitation for broad challenges under the Administrative Procedure Act (APA) to regulations did not start for Corner Post, a North Dakota truck stop, until it started accepting credit cards when it opened in 2018.

Some regulations, such as those governing partnership basis shifting, "have become vulnerable because there are aspects that are legislative and some that are regulatory, and pieces that can be void, and others that are legitimate to move forward," said Melanie Lauridsen, the AICPA's vice president–Tax Policy & Advocacy.

Under Loper Bright, federal judges can rely on IRS expertise and experience, but they do not have to, said Melanie Lauridsen, the AICPA's vice president–Tax Policy & Advocacy. Thus, Loper Bright "most likely will affect future rulemaking within the IRS." Under Corner Post, on the other hand, "you could have a regulation that's over 20 years old, but you're injured now," and since the statute of limitation does not start to run until the taxpayer is injured, the regulation can be challenged long after it was promulgated. This will cause "lots of exposure for the IRS," she said

The decisions will "cause a lot more gray area," Melancon said. Supporters of these decisions believe "legislators ought to legislate and not rely on as much interpretation," he said. "But we also will hear noise in our own environment of 'we need some answers.' And we know we get frustrated when we don't get answers in a timely fashion, and filing dates and all of these other things are necessary to give good advice to clients."

Laws can be voluminous, and they rely on agency interpretation, Melancon added. "And so now, almost at any point, if anybody … believes [they are] injured, [they] can bring cases … and will probably win."