Legislative History as a Statutory Interpretation Tool in Tax Disputes

Loper Bright Enterprises v. Raimondo changed what a court is required to do when a tax statute is unclear, and that change is the reason every argument about legislative history now has to be rebuilt from the ground up. Under Chevron, a court facing an ambiguous statute asked only whether the agency's reading was permissible, and if it was, the court deferred even if the judges themselves would have read the text differently. Loper Bright threw that framework out. Courts must now find the single best reading of the statute themselves, independently, without giving the agency's interpretation any added weight simply because the agency wrote it first.

That shift matters enormously for legislative history, because so much of its traditional use in tax cases ran through the Chevron doorway. Agencies cited committee reports and floor statements to justify why their reading of an ambiguous term was reasonable, and courts accepted that justification as part of the deference calculus rather than independently weighing the materials themselves. With that doorway gone, legislative history has to compete directly against text, structure, and canons of construction before a court doing its own, unassisted reading of the statute. It no longer rides in on the agency's coattails.

Treasury and the IRS saw this coming. In the years before Loper Bright came down, both agencies began writing noticeably more detailed preambles into proposed and final regulations, laying out their statutory authority provision by provision and showing their reasoning. That shift in drafting practice was itself an admission: the agencies understood that deference was ending and that future courts would need to be persuaded on the merits.

An Eighth Circuit decision involving IRC § 482 shows how fast the ground moved. The Tax Court had upheld the IRS's "blocked income" regulations by leaning on Chevron deference. On appeal, the Eighth Circuit skipped straight to the statutory text and observed that "the legal landscape has changed.

Legislative History in the Tax Context

Legislative history in a tax dispute is not one document or one kind of source. It covers committee reports from the House Ways and Means Committee and the Senate Finance Committee, statements made on the floor of either chamber, conference reports reconciling House and Senate versions of a bill, and the General Explanations published by the Joint Committee on Taxation, known informally as the Bluebooks. Courts do not treat these sources as interchangeable, and the differences in how much weight each carries shape which materials a practitioner should lean on first.

Committee reports from Ways and Means and Senate Finance sit at the top of the hierarchy. They represent the deliberative record of the committees that actually drafted the statutory language, which gives them a claim to reflect something closer to institutional intent than any other category of legislative history.

Bluebooks occupy a stranger position. The Joint Committee on Taxation does not write or enact legislation on its own, even though its staff helps draft the statutory text that eventually gets voted on. That makes the General Explanations technically something other than legislative history of the bill itself: they are the expert, after-the-fact explanatory work of a congressional staff body, not the record of the enacting committees. Courts tend to treat them with some caution as formal authority for that reason, even while relying on them constantly as a practical matter, since Bluebooks lay out prior law, new law, effective dates, and often the stated reasons for a given change in a way no other document does as clearly.

Floor statements and the remarks of individual members of Congress sit at the bottom. A textualist court is most likely to discount these entirely, on the theory that no single legislator's stated intent can speak for a body of 535 members who may never have read, let alone agreed with, what that one member said on the floor.

The Textualist Critique of Legislative History

The textualist objection to legislative history rests on a claim about what a 535-member legislature can actually be said to intend. No single document, textualists argue, can capture the collective will of a body that large, because committee reports are written by staff, floor statements are often strategic rather than sincere, and much of what gets said during a bill's passage amounts to post-hoc spin aimed at building a record for later litigation rather than at describing what the statute actually does. On this view, treating any of that material as authoritative mistakes the stagecraft of the legislative process for the thing itself, the enacted text that received a vote.

That critique did not develop in a vacuum. It hardened over a decade in which the IRS, operating under Chevron, grew more comfortable citing legislative history and purpose to justify its regulatory positions, while the Tax Court, resistant to that style of reasoning, grew steadily more textualist in response. The two institutions pulled in opposite directions for years, with the agency leaning on purpose and the court leaning on text, and that divergence is part of why the doctrinal reset in 2024 landed with such force: it resolved, in the court's favor, an argument that had been building for a decade [1][2].

Loper Bright sharpens that critique. If a court's job is to find the single best reading of a statute's text, rather than to ask whether an agency's reading is permissible among several reasonable options, then legislative history has even less room to do independent work. It can still help resolve a genuine ambiguity, a case where the text itself does not settle the question. But it is no longer available as a stand-in for the hard work of textual analysis.

Keysight Technologies Inc. v. United States shows what that ceiling looks like in practice. The Court of Federal Claims ruled, in a decision filed July 2, 2026, that Treasury lacked the statutory authority to issue Treasury Regulation § 1.951A-2(c)(5), which implemented the GILTI provisions of the Tax Cuts and Jobs Act of 2017. The court held that Treasury could not use policy concerns or legislative history to rewrite the tax consequences Congress had actually enacted, and it said that letting Treasury define terms it considers ambiguous, "untethered to congressional grants of authority or the underlying statutory context, is precisely the kind of agency overreach Loper Bright was designed to foreclose. That is the textualist case stated in a holding rather than an essay: purpose cannot substitute for a grant of authority the statute does not contain.

Where legislative history still does real work in tax litigation despite the textualist turn

None of this means legislative history has disappeared from tax litigation. It means courts have stopped announcing that they are using it, even in cases where they are. At Harvard Law's 2025 Scalia Lecture, Judge Rachel Kovner made exactly that observation about the Supreme Court: the Court is "loath to describe itself as reasoning from purpose," she said, but "does so in statutory interpretation cases not infrequently, often under banners like context." That is a judge on the inside of the methodology conceding a gap between what textualist courts say they do and what they actually do when a case gets hard.

State of New Jersey v. Bessent, decided by the Second Circuit in 2025, shows legislative history working in favor of a Treasury regulation. The court upheld IRS rules limiting the deductibility of contributions to state-run charitable programs when a taxpayer receives a state tax credit in exchange, and it grounded that result in IRC § 170's implicit quid pro quo principle as that principle has been built out through decisional law. The regulation survived because the court found it consistent with what the statute's history and surrounding case law understood a charitable contribution to require, not arbitrary or capricious.

The clearest live example of this fight is the § 1402(a)(13) self-employment tax litigation moving through the courts in 2026, sometimes referred to as the limited-partner trio of cases. The Tax Court has applied what it calls a "functional analysis," holding that the statute's exclusion for limited partners applies only to genuinely passive income, a conclusion that leans heavily on what Congress is understood to have intended when it wrote the exclusion. Partnerships on the other side argue for a purely textual reading keyed to state-law limited liability status, with no inquiry into function or purpose. That dispute remains unresolved, and watching it will show whether a functional, history-informed reading can survive appellate review in a post-Loper Bright world.

What unites the cases where legislative history holds up is that it is doing something text cannot do on its own: filling a genuine gap, settling a definitional dispute over a term with no fixed ordinary meaning, or confirming that a regulation's scope matches what Congress understood itself to be enacting at the time. Legislative history that tries to override text that is actually clear does not fare well after Loper Bright. Legislative history that explains what an unclear term meant to the people who wrote it still carries weight.

How Congress Is Writing Statutes to Control the Interpretive Game

Loper Bright preserved some deference. It confirmed that courts should still defer where Congress has explicitly delegated regulatory authority to an agency, as opposed to cases where a court is simply filling a gap the agency claimed as its own under an ambiguous statute. That distinction has become the blueprint for how Congress is now writing tax legislation, and recent major tax legislation is the clearest example so far. Its directives to Treasury are written to be explicit rather than implicit, rebuilding on solid statutory ground what Chevron used to prop up informally through judicial deference to agency judgment.

The OBBBA's instructions to Treasury are more deliberate and more detailed than what earlier tax legislation typically provided, and that level of detail appears aimed at reinforcing Treasury's authority to issue regulations before any court challenge arrives. Congress, in other words, is spelling out what those rules should do, which leaves less room for the agency to fill gaps on its own judgment and less room for a court to say Treasury exceeded its mandate.

That precision comes at a cost. Ambiguity used to be a feature of tax legislation, not a flaw: leaving details to be filled in by regulation was one of the ways complex bills got passed at all, since members could vote for a general framework without resolving every contested detail in the statutory text itself. Forcing Congress to write with this much specificity may make future tax bills harder to negotiate, and specific statutory language is also easier to game literally than a broader delegation of authority would have been.

The payoff for practitioners is that the legislative history attached to OBBBA provisions looks different from the legislative history of older statutes. Expect unusually detailed preamble reasoning, explicit delegation language written directly into the statutory text, and committee report explanations built with litigation in mind. Congress wrote this record knowing that courts will read it without any deference cushioning the outcome, and that knowledge shaped how the record was built.

What the ongoing tension between textualism and purposivism means for building a statutory argument

Legislative history after Loper Bright is neither a primary weapon nor a dead letter. Its value depends on the forum hearing the case, the specific statutory issue at stake, and whether it confirms or conflicts with the textual reading the court already favors going in. That is a less satisfying answer than a bright-line rule, but it is the honest one, and it should shape how practitioners decide which arguments to lead with.

Forum selection carries real interpretive weight. Courts applying de novo statutory review tend to reach for structural and textual canons first, before anything else. Legislative history introduced through the language of "context" or "structure" tends to survive that process better than legislative history offered as a standalone purposivist argument asking the court to override text on the strength of what Congress meant to do.

ERC litigation offers a preview of where this is headed more broadly. Courts are increasingly deciding Employee Retention Credit eligibility by reading the statute itself rather than leaning on nonbinding IRS notices, and that pattern makes it more important to raise statutory arguments early and to preserve APA challenges rather than waiting until an agency's informal guidance becomes the center of the dispute. The same logic is likely to spread into other corners of tax law built on agency guidance.

Where Treasury has written a detailed preamble citing specific statutory authority, the preamble itself has become the agency's interpretive brief, and practitioners should engage with its textual reasoning directly rather than reaching past it for raw legislative history to make the same point. The preamble was written for this exact fight.

The arguments that hold up best weave legislative history into a textual account instead of setting the two against each other: using a committee report to confirm the ordinary meaning of a disputed term, or a Bluebook explanation to establish what Congress understood "prior law" to be before a given amendment. An argument built that way asks the court to read text correctly with the help of context. An argument asking a court to override clear text because legislative history suggests a different purpose asks for something closer to a reversal, and reversals are harder to win now than they were under Chevron.

Justice Kagan's objection to abandoning legislative history altogether remains the strongest counterweight available to practitioners working in a textualist forum. Interpreting a statute with no reference at all to the Congress that wrote it, she has argued, "just doesn't make much sense," and a strict ordinary-meaning approach can hand judges more room to impose their own readings, not less, by stripping away the record that might otherwise constrain them. That argument will not win every case. It is reason enough to keep legislative history in the record, built into the textual argument rather than offered in place of one, in every tax dispute where the statutory text leaves real room for debate.