The Employee Retention Credit: A court challenge to IRS guidance

On June 20, 2025, the US District Court for the District of Arizona ruled that Internal Revenue Service (IRS) Notice 2021-20, challenged by a tax advisory firm, was an “interpretive rule” and did not violate the Administrative Procedure Act. Despite the IRS issuing $269 billion in Employee Retention Credits, more than 200,000 claims have been disallowed, and 592,000 remain pending. The court noted that the notice’s provisions are not binding, and taxpayers can still argue their eligibility based on specific circumstances, leaving room for future challenges.

Learn more about opportunities for employers and their tax advisers here.

Shawn O’Brien
Shawn O’Brien is nationally recognized by his peers and clients as a leading tax practitioner with a focus on tax litigation and controversies involving state, federal and international tax authorities. Drawing on his 25 years of experience, Shawn represents clients in tax examinations and administrative appeals and, when necessary, serves as a forceful advocate in litigation before the US Tax Court, US district courts, the US Court of Federal Claims, state courts and federal appellate courts. Read Shawn O’Brien's full bio.


Samuel Hamer
Samuel (Sam) F. Hamer focuses his practice on US and international tax matters. Read Samuel Hamer's full bio.


Michael Scarduzio
Michael J. Scarduzio focuses his practice on US and international tax matters, particularly civil and criminal tax litigation. From audit to litigation, he represents taxpayers in all phases of tax controversy, including novel issues of first impression such as financial hedging transactions using a captive insurer, US tax implications of a foreign master-feeder fund’s investment activities and matters arising under Internal Revenue Code (IRC) Sections 7216 and 7212(a). Read Michael Scarduzio's full bio.

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