Erin Morrow Hawley (University of Missouri School. of Law) has posted The Equitable Anti-Injunction Act of 1867 on SSRN. Here is the abstract:
There is a law for tax law alone - at least in the enforcement context. The puzzle is this: Preenforcement challenges to statutes and regulations are generally allowed in the law. But not for taxes. This is all because of the Anti-Injunction Act of 1867 (“AIA”), which bars a taxpayer who believes a tax to be invalid from bringing a preemptive suit.
The deeply imbedded conventional wisdom is that the Anti-Injunction Act is jurisdictional. If this is correct, the current myriad measures of tax penalties designed to encourage certain behaviors are all but immune from preenforcement challenge. Taxpayers subject to an unconstitutional tax have two choices only: comply with the (invalid) regulation or pay the tax and institute a refund action.
But what if the Anti-Injunction Act is not jurisdictional? This Article argues that the conventional wisdom is wrong because it does not account for the Supreme Court’s recent caselaw regarding when a condition is jurisdictional and because it ignores early case law suggesting that the AIA was meant to govern equity jurisdiction. Part I examines the judicial and scholarly consensus that the AIA is jurisdictional. Part II analyzes the Supreme Court’s recent jurisdictional decisions. Part III applies those precedents to the Anti-Injunction Act and argues that the Act is not jurisdictional. Part IV explains that a proper interpretation of the Act must account for the equitable rules that governed tax injunction suits at common law and for the Supreme Court’s early interpretation of that statute. This leads to a surprising and novel interpretation: the Anti-Injunction Act of 1867 governs the equitable jurisdiction of the federal courts. Part V develops briefly the scope of an equitable Anti-Injunction Act, sketching out categories of cases in which preenforcement review might be available.