King v. Burwell, the Affordable Care Act, and Deference to Administrative Interpretations of the Internal Revenue Code


Erik M. Jensen


In King v. Burwell, the Supreme Court concluded in 2015 that, despite some arguably straightforward language in the Affordable Care Act suggesting otherwise, Congress intended that “applicable taxpayers” be eligible for refundable tax credits whether they acquired their health insurance on an exchange created by a state or one established by the federal government. This article discusses the statutory interpretation issues involved in King, and also addresses another issue with potentially long-lasting effect on the tax law as a whole. Although the result in King was consistent with regulations the Treasury Department and Internal Revenue Service had issued under the Act, the Court, somewhat surprisingly, did not base its decision on so-called Chevron deference to those regulations. The Court instead made an independent determination, or so it said, of the meaning of the relevant statutory provisions. This article considers when, after King, Chevron deference is appropriate in the tax area and when it is not. And it discusses why that distinction mattered in a case where the substantive result would have been the same whether or not the Court had deferred to the regulations.


King v. Burwell, Affordable Care Act, Chevron deference, Exchange established by the State, applicable taxpayer

Publication Date


Document Type


Place of Original Publication

Journal of Taxation of Investments

Publication Information

33(1) Journal of Taxation of Investments 29 (2015)

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COinS Erik M. Jensen Faculty Bio