California State Bar Members Recommend Improvements to IRS FAQs

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FAQs have also been used increasingly to provide guidance on technical and compliance issues in an expedited fashion. In some instances FAQs are the only guidance available from the IRS on an issue. A major problem facing the IRS in issuing guidance is the lack of adequate funding, particularly at a time when its delegated tasks have expanded under FATCA and the Patient Protection and Affordable Care Act. Using FAQs as a streamlined method for providing guidance is, therefore, a practical way of quickly reaching the public and can represent a net benefit to taxpayers and tax practitioners.

Despite some benefits, the use of FAQs to provide guidance raises a number of concerns. These include: (1) the lack of transparency, (2) the lack of accountability, (3) the lack of input by the public, (4) the difficulty in finding specific FAQs on the IRS website, (5) whether FAQs are binding on IRS personnel, and (6) the extent to which FAQs can be relied upon by taxpayers and tax practitioners.

This paper discusses the background of the evolution of the IRS's website and its use of FAQs to provide information and guidance. It then discusses the types of FAQs that are available at irs.gov and the reasons for the increasing use of FAQs. It then addresses (1) problems for both taxpayers and tax practitioners that are presented by the IRS's use of FAQs, particularly as guidance, (2) where FAQs fit into the spectrum of IRS guidance, and (3) whether FAQs can be considered "authority."

There are ways to address the concerns and make the use of FAQs more reliable. These changes include (1) archiving past versions of FAQs and linking them to current versions of FAQs, (2) creating indices so that FAQs are more readily accessible, (3) publishing the procedures used in developing different types of FAQs, and (4) according FAQs the same status as Notices and Announcements, which, like FAQs, are used when guidance is needed expeditiously (such as when there is not enough time between a statutory law change and its effective date to issue regulations).

The Internal Revenue Service (IRS) should reconsider and revise its use of "frequently asked questions" or FAQs posted on its website.

The ability to disseminate information broadly and continuously through the use of websites has led to their proliferation, including use by government agencies. A common feature of many websites is "frequently asked questions" or FAQs. The use of FAQs enables commonly asked questions to be answered once. Visitors to a website may find the information they seek by reviewing the FAQs. Appropriate use of FAQs can serve website visitors and prevent the website owner from having to individually address common questions.

For basic information about due dates, location of IRS offices, mailing addresses, how to find forms and publications, how to find primary authority, and other standard non-interpretative questions, FAQs are appropriate. However, use of FAQs to provide information that goes beyond restating or explaining the Internal Revenue Code, regulations, IRS rulings, court cases and other primary tax authority in simpler terms can be misleading for taxpayers and tax practitioners, as well as for IRS personnel.

A significant issue that exists with the posting of items on the IRS website for use by taxpayers and tax practitioners is that they are not "authority" (per Treas. Reg. § 1.6662-4), yet some FAQs appear to be posted to provide guidance when there is no other "authority" or such "authority" is not complete.

This paper focuses on FAQs, although the problems noted also exist with some other types of information posted on the IRS website.³ The number of FAQs seems to have increased in recent years, particularly when information needs to be issued quickly on new statutory provisions, particularly ones added as stimulus that exist for a limited period of time.

Problems with FAQs include:

• FAQs sometimes serve as the only information to explain an IRS procedure or a statutory change made by Congress. Yet, they are not listed in the regulations as authority that could prevent imposition of a penalty on a taxpayer or tax return preparer.

• It is not clear how FAQs are derived and who authors them. There are no posted procedures on how taxpayers can ask questions to be answered.

• There is a lack of history regarding changes and deletions of FAQs. Users need to check FAQs often because new ones are added and existing ones modified or deleted. Unlike the process for modifying or revoking a revenue ruling, there is no history of what happens to FAQs that are modified or deleted; the original text disappears.

• It is not clear whether FAQs are binding on IRS personnel.

Part II of this paper provides examples of types of IRS FAQs in terms of topics covered, how they appear to be modified, and why they are used. Part III explains the problems that exist for taxpayers, tax practitioners and IRS personnel from FAQs. Part IV explains the process of issuing "authority" in order to contrast it with the FAQ process. Finally, Part V offers suggestions for reducing the use of FAQs, increasing transparency in their usage, and making them constitute "authority."

 

 

 

IRS website (http://www.irs.ustreas.gov/prod/index_javascript.html)

 

at December 10, 1997 as obtained from the Internet Wayback Machine

 

(http://wayback.archive.org/).

 

 

 

 

August 15, 2000 (from Wayback Machine)

 

 

 

 

June 5, 2004 (from the Wayback Machine)

 

 

 

 

November 17, 2005 (from the Wayback Machine)

 

Per screen shots from the Wayback Machine, the IRS website changed

 

the week of November 14, 2005. Note the addition of a link for

 

Frequently Asked Questions. The link goes to an extensive list

 

of websites with questions and answers.

 

 

 

 

February 25, 2012

 

This is the new format launched September 27, 2011.⁵

 

• Forms and instructions

• Publications

• Fact sheets (http://www.irs.gov/newsroom/article/0,,id=108500,00.html)

• Summertime tax tips (http://www.irs.gov/newsroom/article/0,,id=172746,00.html)

• General information on numerous websites within "irs.gov" (such as http://www.irs.gov/individuals/article/0,,id=118506,00.html)

• Interactive tax assistants (http://www.irs.gov/ita/)

• "New media" such as YouTube videos, Facebook and more (http://www.irs.gov/newsroom/article/0,,id=227226,00.html?portlet=109)

• LB&I Industry Directives (http://www.irs.gov/businesses/corporations/article/0,,id=96915,00.html)

• Audit Technique Guides (http://www.irs.gov/businesses/small/article/0,,id=108149,00.html)

• Various sets of Frequently Asked Questions (FAQs)

• Links to "primary authority" in the Internal Revenue Bulletins as well as individual links to revenue rulings, revenue procedures, notices, and more. For example, many items on the Electronic Reading Room website are primary authority (http://www.irs.gov/foia/article/0,,id=110353,00.html).

                                                   2007         2011

Some web designers question the value of FAQs, observing that a well designed website will enable users to find the information without the need for a special set of questions. That is, if there are common questions that lead people to visit a website, the website should be providing an answer on its regular pages.⁸ As one website designer observes:

 

 

* An example of a disclaimer is found on the following Audit Technique Guide:

 

 

An IRS webinar of January 11, 2012, included a disclaimer by the narrator at the start as well as a statement on the first slide that the information is only current as of the date presented and that it does not constitute "official guidance."¹¹

** An example of a summary of primary authority that does not add any new interpretation or rule is Publication 936, Home Mortgage Interest Deduction (http://www.irs.gov/pub/irs-pdf/p936.pdf). At page 2, it provides:

 

 

II. FREQUENTLY ASKED QUESTIONS (FAQs) ON THE IRS WEBSITE

This section describes the types of FAQs provided on the IRS website and why FAQs are used.

A. Types of FAQs

The many sets of FAQs posted on the IRS website seem to serve a variety of purposes. To outside observers, such as the authors of this paper, the purposes might be classified as follows:

 

 

 

http://www.irs.gov/faqs/index.html (Feb. 28, 2012)

 

 

 

 

http://www.irs.gov/faqs/faq/0,,id=199703,00.html (Feb. 28, 2012)

 

An example consists of a set of questions and answers released for the American Recovery and Reinvestment Act (P.L. 111-5; 2/17/09) provision that added IRC Section 36A,Making work pay credit. Beyond the Code section and legislative history, the only guidance for this provision was a set of questions on the IRS website.

 

 

 

http://www.irs.gov/newsroom/article/0,,id=205921,00.html

 

(Feb. 28, 2012)

 

 

 

 

http://www.irs.gov/newsroom/article/0,,id=205922,00.html

 

(Feb. 28, 2012)

 

A set of FAQs on IRC Section 475 answers questions regarding an Industry Director Directive (IDD).¹²

 

 

 

http://www.irs.gov/businesses/article/0,,id=245053,00.html

 

(Feb. 28, 2012)

 

Some FAQs have later been published as official guidance. For example, FAQs at September 30, 2010, on the IRS initiative to regulate paid return preparers included FAQ7:

Some revisions to the PTIN FAQs in February 2012 included a revision that expanded upon guidance included in Circular 230. One of the new questions added on February 27, 2012 follows:

Additional examples of sets of FAQs on IRS initiatives include:

• Uncertain Tax Positions -- http://www.irs.gov/businesses/article/0,,id=237538,00.html

• Offshore Voluntary Disclosure Initiative -- http://www.irs.gov/businesses/international/article/0,,id=235699,00.html

• Voluntary Classification Settlement Program (VCSP) -- http://www.irs.gov/businesses/small/article/0,,id=246014,00.html

IRS Deputy Chief Counsel -- Technical, Erik Corwin provided some insights on the use of FAQs at a session offered at the Fall 2011 Tax Division meeting of the American Institute of Certified Public Accountants (AICPA). As reported by Commerce Clearing House (CCH), Mr. Corwin noted that FAQs are "an attempt to help the most people in a timely fashion." CCH also summarized Mr. Corwin's comments as: "some FAQs are well-thought-out attempts to help taxpayers comply with the law."¹⁶

III. PROBLEMS WITH FREQUENTLY ASKED QUESTIONS (FAQs)

This section describes key problems with some IRS FAQs including lack of transparency and accountability,

 

 

Finally, in some cases the FAQ lists the portions that were updated or amended, but without providing any information on the changes made. See, for example, 2011 Voluntary Disclosure Initiative Frequently Asked Questions and Answers, available at http://www.irs.gov/businesses/international/article/0,,id=235699,00.html, which provides the following information on amendments:

 

 

As an example, the 2011 Offshore Voluntary Disclosure Initiative webpage had a link to documents that taxpayers were required to submit with their OVDI package. Included was a Form 872, Consent to Extend Time to Assess Tax. The form on the IRS website lists 2003 through 2008 as the years for which the statute is to be extended. The Form 872 for the 2011 OVDI package is on the IRS website at http://www.irs.gov/pub/irs-utl/f872ovdi.pdf (viewed on Feb. 28, 2012). One of the authors of this paper was informed by a revenue agent who was reviewing an OVDI package that the Form 872 contained on the website was invalid since it included years for which the three-year statute had expired.

E. Taxpayer Rights and Practitioner Problems Where FAQs Are the Only Guidance

Given the increasing number of visits to and searches of the IRS website,²⁶ it is clear that taxpayers and tax professionals are turning more frequently to the IRS website for information and guidance. Nonetheless, there are no caveats or disclaimers accompanying FAQs on the IRS website to make it clear to users that the application of FAQs that summarize law (and the publications to which some FAQs link) often depends on a taxpayer's individual circumstances. Indeed, often a taxpayer can be lead to believe that the information contained in FAQs and publications are authoritative statements and, thus, binding on the IRS. The FAQs on filing requirements for dependent students has a link to Publication 501, which contains the following statement:

In contrast, the U.S. Department of Labor, has a disclaimer on its webpage that references its FAQs (see below). This disclaimer reminders readers that the Federal Register and Code of Federal Regulations are the "official source" for the Department's information.

 

 

 

http://webapps.dol.gov/dolfaq/dolfaq.asp (March 19, 2012)

 

IV. OFFICIAL GUIDANCE -- PROCESS AND TYPES

A taxpayer can rely on revenue rulings to the extent that the facts and circumstances in his or her case are substantially the same as those in the ruling. In determining whether reliance on a revenue ruling is appropriate, the taxpayer, the IRS and others are to consider the effect of subsequent legislation, regulations, court decisions and other revenue rulings."⁴³

The courts are split on the weight to be afforded to a revenue ruling.⁴⁴ The Tax Court (and several circuit courts), has held that revenue rulings merely "represent the position of one of the parties" before the court.⁴⁵ Other courts hold that revenue rulings, while not binding, are entitled to some weight as a "body of experienced and informed judgment."⁴⁶ Finally, several court have held that revenue rulings "have the force of legal precedents unless unreasonable or inconsistent with the provisions of the Internal Revenue Code."⁴⁷

Occasionally, a Notice may include a set of questions and answers, such as with Notice 2012-17, "Frequently-Asked-Questions From Employers Regarding Automatic Enrollment, Employer Shared Responsibility, and Waiting Periods" (http://www.irs.gov/pub/irs-drop/n-12-17.pdf).

A Technical Advice Memorandum is issued by an Associate Chief Counsel's Office to provide written guidance in response to a technical or procedural question requested by a director or an area appeals director.⁵³ The procedure by which a technical advice memorandum can be requested is set out in the second annual revenue procedure each year.⁵⁴

Rulings and technical advice memoranda may not be used or cited as precedent.⁵⁵ While recognizing this, the Supreme Court has cited rulings to illustrate the Service's inconsistent treatment of a statutory provision.⁵⁶ In addition, letter rulings issued after October 31, 1976 are considered "authority" for purposes of determining whether "substantial authority" exists for purposes of taxpayer and preparer penalties under Sections 6662 and 6694, respectively.⁵⁷

Information Letters are issued by either the IRS National Office or the District Director. An Information Letter is a statement that "calls attention to a well-established interpretation or principle of tax law (including a tax treaty) without applying it to a specific set of facts." Information letters appear to be appropriate where the relevant law is certain. Per Rev. Proc. 2012-1: "An information letter may be issued if the taxpayer's inquiry indicates a need for general information or if the taxpayer's request does not meet the requirements of this revenue procedure and the Service concludes that general information will help the taxpayer. An information letter is advisory only and has no binding effect on the Service."⁵⁸

The IRS maintains a website where the full text of Information Letters can be obtained. That website notes: "Information letters are furnished by the IRS National Office in response to requests for general information by taxpayers, by congress-persons on behalf of constituents, or by congress-persons on their own behalf. The release of information letters is intended to increase public confidence that the tax system operates fairly and in an even-handed manner with respect to all taxpayers." A review of a sample of Information Letters posted on the IRS website indicates that many are for constituents of particular members of Congress who asked the question.⁵⁹

The IRS Information Letter website does not explain how to obtain a letter. It also makes no reference to the revenue procedure where information letters are explained. That revenue procedure is the first one issued each year and the bulk of the text explains how to apply for a letter ruling. It does not readily provide the information on how to obtain an Information Letter. These revenue procedures are usually quite long; Revenue Procedure 2012-1, as printed in Internal Revenue Bulletin 2012-1, is 91 pages long. There is no user fee for obtaining an Information Letter.⁶⁰

Generally, IRS publications, instructions and forms are not legal authority and do not bind the IRS or the courts.⁶⁶ Taxpayers who rely solely on IRS forms and instructions may be liable for penalties.⁶⁷

There have been occasions where new information was published in IRS publications or form instructions without issuance of official guidance. For example, the procedures for how Registered Domestic Partners and same-sex couples in community property states are to file their federal returns is provided in the instructions to Form 1040 and IRS Publication 555, Community Property. The 2010 Form 1040 instructions were different from the 2009 instructions as illustrated below.⁶⁸

 

 

 

2009 Form 1040 instructions, page 21.

 

As described in this report, there are several problems with the current manner in which many sets of FAQs are used by the IRS. These problems can lead to compliance errors and to the assessment of penalties upon taxpayers and tax return preparers despite the fact that they believe they have followed IRS guidance.FAQscan present taxpayer rights issues when authoritative guidance is not issued.

Listed below are some suggestions for addressing the problems described in this report.

FAQs provide a convenient way for the IRS to readily disseminate information and provide guidance on an expedited basis. The IRS, however, needs to do more to ensure that taxpayers and tax practitioners (1) understand the procedure for drafting, reviewing and posting FAQs, (2) can readily access FAQs on specific topics, and (3) can link to an archive with prior versions of an FAQ. As proposed by this paper, where an FAQ is being used for purposes similar to Notices and Announcements, the IRS should give them the same status. This will allow tax practitioners and taxpayers to be able to rely on the FAQ for guidance, without risk of penalty. Although some guidance from the IRS is better than none, tax practitioners and taxpayers need guidance that they can rely on in managing their affairs. And while FAQs are useful in providing guidance in an emergency, they should not become a substitute for other, more formal, types of guidance.

² Although the participants on this project might have clients affected by the rules applicable to the subject matter of this paper and have advised such clients on applicable law, no such participant has been specifically engaged by a client to participate on this project.

³ The issue of "guidance" that is not "authority" under Section 6662 arises in other contexts as well. For example, Information Letter 2012-18 changes a position in Revenue Ruling 1980-121 to provide that real property taxes do not need to be ad valorum to be deductible under Section 164. Information Letter 2012-18 states that the form instructions and IRS website will be updated, but makes no reference to changing Rev. Rul. 80-121. This is problematic for taxpayers and tax preparers because the revenue ruling is "authority" and the information letter and website are not.

⁴ Diane M. Dixon, "IRS Seeks to Develop New Web-Based Measurement Indicators for IRS.gov," 2003, page 1; available at http://www.irs.gov/pub/irs-soi/03dixon.pdf.

⁵ TaxProfBlog, 9/27/11; http://taxprof.typepad.com/taxprof_blog/2011/09/irs-launches.html.

⁶ GAO, 2011 Tax Filing: Processing Gains, But Taxpayer Assistance Could Be Enhanced by More Self-Service Tools (December, 2011), pps. 20-21.

⁷ Wikipedia, FAQ; http://en.wikipedia.org/wiki/Faq (retrieved Feb. 27, 2012). Six Revisions, "Designing Effective FAQPages" by Mohammad Moradi, May 24, 2011; http://sixrevisions.com/user-interface/designing-effective-faq-pages/ (retrieved Feb. 28, 2012).

⁸ The Website Architects, "Why Your Search Form & FAQs Page are Lame Substitutes for Real Usability," July 18, 2011; http://www.thewebsitearchitects.com/website-search-form-faqs-page-website-usability/ (retrieved Feb. 28, 2012). Six Revisions, "Stop the FAQ Page Bandage," by Jason Gross, Nov. 19. 2010; http://sixrevisions.com/user-interface/stop-the-faq-page-bandage/ (retrieved Feb. 28, 2012). Six Revisions, "Designing Effective FAQ, Pages" by Mohammad Moradi, May 24, 2011; http://sixrevisions.com/user-interface/designing-effective-faq-pages/ (retrieved Feb. 28, 2012).

⁹ Six Revisions, "Stop the FAQ Page Bandage," by Jason Gross, Nov. 19. 2010; http://sixrevisions.com/user-interface/stop-the-faq-page-bandage/ (retrieved Feb. 28, 2012).

¹⁰ Microsoft, Microsoft Support; http://support.microsoft.com/?LN=en-us&x=16&y=12 (retrieved Feb. 27, 2012).

¹¹ IRS webinar: Small Business Tax Compliance -- Priorities for 2012, Jan. 11, 2012; http://www.irsvideos.gov/SBTaxCompliancePriorities2012/ (retrieved March 7, 2012).

¹² The Industry Director Directive (LB&I Control No: LB&I-4-1110-033) dated April, 14, 2011, can be found at http://www.irs.gov/businesses/article/0,,id=238507,00.html.

¹³ Marie Sapirie, "Increase in Informal Guidance Unlikely to Stop Soon," Tax Notes, Vol. 134, No. 4, Jan, 23, 2012, page 399.

¹⁴ IRS, Frequently Asked Questions: Do I Need a PTIN? under "a. General Guidance"; available at http://www.irs.gov/taxpros/article/0,,id=239678,00.html (retrieved Feb. 15, 2012). Note: At Feb. 28, 2012, because of revisions to this website, the age 18 FAQ was listed as FAQ 6.

¹⁵ Note: Circular 230 (August 2011) does not mention that a paid preparer must be age 18.

¹⁶ Brant Goldwyn, CCH Federal Tax Day, "AICPA Fall Tax Division Meeting: FAQs, Other Informal Guidance Represent Effort to Get Guidance Out Quickly, IRS Official Indicates," Wolters Kluwer, Nov. 10, 2011.

¹⁷ See, Treas. Reg. § 601.601, setting out the general procedure followed by the Service in issuing Treasury regulations and decisions, revenue rulings and revenue procedures, and the first revenue procedure issued each year, which sets out the procedure for requesting letter rulings and the division within Office of Chief Counsel having jurisdiction over specific issues. When the IRS issues a revenue ruling, it lists the principal author of the ruling and the person to contact in the Office of Chief Counsel for further information regarding the ruling.

¹⁸ The National Taxpayer Advocate has expressed concern over the lack of transparency and omission of taxpayer input. See "Olson Says Informal IRS Guidance Lacks Transparency," 2011 TNT 206-11 , Oct. 25, 2011. See, also, "News Analysis: How Do FAQs Fit Into the Guidance Puzzle?," 2011 TNT 64-1 (April 4, 2011) (Noting "the perceived lack of ground rules governing the process of issuing and maintaining FAQs on the IRS website.").

¹⁹2009 Voluntary Disclosure: Questions & Answers at http://www.irs.gov/newsroom/article/0,,id=210027,00.html.

²⁰ T.D. 9438 and REG-150066-08 (12/29/08).

²¹ CCH Federal Tax Day (1/26/2012). See also "Olson Says Informal IRS Guidance Lacks Transparency," 2011 TNT 206-11 , Oct. 25, 2011; "Tax Analysts' Roundtable on 'Taxes and the Guidance Problem," 2011 TNT 142-100 (July 25, 2011) (Armando Gomez commented that "one of the problems with the informal non-guidance guidance process in the form of directives and FAQs is the lack of opportunity for public comment and sunshine on them.").

²² Thomson Reuters Checkpoint, "The Weight of IRS Rulings and Other Documents, and What Constitutes 'Substantial Authority,'"Federal Taxes Weekly Alert Newsletter, Vol. 57, No. 27 (July 7, 2011) (noting that it is uncertain "who exactly writes FAQs or the type of vetting process" they undergo. . . .).

²³ GAO, 2011 Tax Filing: Processing Gains, But Taxpayer Assistance Could Be Enhanced by More Self-Service Tools (December, 2011) at p. 21.

²⁴ "Olson Says Informal IRS Guidance Lacks Transparency," 2011 TNT 206-11 , Oct. 25, 2011.

²⁵ Jeremiah Coder, "News Analysis: How Do FAQs Fit Into the Guidance Puzzle?," 2011 TNT 64-1 (April 4, 2011).

²⁶ Between 2007 and 2011, the number of visits increased from 168 million in 2007 to 250 million, while the number of searches increased three-fold, from 106 million to 312 million. GAO, 2011 Tax Filing: Processing Gains, But Taxpayer Assistance Could Be Enhanced by More Self-Service Tools (December, 2011) at p. 20.

²⁷ The Advocate reply is posted at the 21^st Century Taxation website; post available at http://tinyurl.com/43t2l33.

²⁸ GAO, Processing Gains, but Taxpayer Assistance Could Be Enhanced by More Self-Service Tools, GAO-12-176, 12/15/11; http://www.gao.gov/products/GAO-12-176 (retrieved Feb. 28, 2012).

²⁹ GAO, supra pp. 20-21.

³⁰ See http://www.irs.gov/faqs/index.html (retrieved Feb. 27, 2012).

³¹ I.R.C. § 7805(b); Treas. Reg. § 301.7805-1(b).

³² I.R.C. § 7805(c).

³³ I.R.C. § 7805(b)(8).

³⁴ Treas. Reg. § 601.601(a)(1).

³⁵ Treas. Reg. § 601.601(a)(2).

³⁶ Treas. Reg. § 601.601(a)(3), (b).

³⁷ Treas. Reg. §§ 601.601(d)(1), 601.702(a)(1)

³⁸ I.R.C. § 7805(e).

³⁹Mayo Found. for Med. Educ. & Research v. United States, 131 S.Ct. 704 (2011).

⁴⁰ Treas. Reg. § 601.601(d)(2).

⁴¹ Rev. Proc. 89-14 at Section 8.

⁴² Rev. Proc. 89-14 at Section 8.

⁴³ Treas. Reg. § 601.601(d)-(e) (2001). See, also, Dixon v. United States, 381 US 68, 72-73 (1965) (holding that the IRS is not bound by a revenue ruling containing a mistake of law and may correct such a mistake by retroactively revoking the ruling, "even where a taxpayer may have relied to his detriment."); Commissioner v. Schleier, 515 U.S. 323, 336, n.8 (1995) (rejecting the taxpayer's reliance on a revenue ruling, the Court emphasized that "'the Service's interpretive rulings do not have the force and effect of regulations,' and they may not be used to overturn the plain language of a statute." .)

⁴⁴See Linda Galler, "Judicial Deference to Revenue Rulings: Reconciling Divergent Standards," 56 Ohio St. L.J. 1037, 1038 (1995).

⁴⁵See, e.g., Browne v. Commissioner, 73 T.C. 723, 731 (1980) (Hall, J. concurring); see also Stubbs, Overbeck & Assoc., Inc. v. United States, 445 F.2d 1142, 1146-47 (5th Cir. 1971) ("A ruling is merely the opinion of a lawyer in the agency and must be accepted as such.").

⁴⁶Ricards v. United States, 683 F.2d 1219, 1224 n. 12 (9th Cir. 1981); see also Foil v. Commissioner, 920 F.2d 1196, 1201 (5th Cir. 1990) (revenue rulings are "to be given weight as expressing the studied view of the agency whose duty it is to carry out the statute").

⁴⁷See Dunn v. United States, 468 F.Supp. 991, 993 (S.D.N.Y. 1979); see also In re Kaplan, 104 F.3d 589, 599 (3d Cir. 1997).

⁴⁸ Rev. Rul. 87-138.

⁴⁹ I.R.M. 4.10.7.2.4.1 (01-01-2006).

⁵⁰ Rev. Rul. 90-91,modifying Rev. Rul. 87-138. See also Hall v. Commissioner, T.C. Memo 1998-336 at n. 8 ("Taxpayers are entitled to rely on and the Internal Revenue Service states that it will be bound by substantive and procedural guidance provided by notices or announcements.")

⁵¹ Treas. Reg. § 601.201(a)(2); Section 1 of the first annual revenue procedure.

⁵² Treas. Reg. § 601.201(l); Sections 11.01, 11.02 of the first annual revenue procedure.

⁵³ Treas. Reg. § 601.105(b); Sections 1.01 of the second annual revenue procedure.

⁵⁴ Section 13.04 of the second annual revenue procedure.

⁵⁵ I.R.C. § 6110(k)(3); Treas. Reg. § 301.6110-7(b); United States v. Hill, 506 US 546 n.12 (1993). Courts have generally refused to consider letter rulings and T.A.M.s as precedent. See, Vons Companies, Inc. v. United States, 51 Fed. Cl. 1 (2001).

⁵⁶Rowan Cos., Inc. v. United States, 452 US 257 n.17 (1981). In IBM Corp. v. United States, 343 F.2d 914, 924 (Ct. Cl. 1965), the court stated that letter rulings could be used as evidence that the Service abused its discretion by issuing rulings that treated competing taxpayers differently.

⁵⁷ Treas. Reg. § 1.6662-4(d)(3)(iii).

⁵⁸ Rev. Proc. 2012-1, 2012-1 IRB 1, Section 2.04.

⁵⁹ IRS, Information Letters; http://www.irs.gov/app/picklist/list/informationLetters.html (retrieved March 7. 2012).

⁶⁰ Rev. Proc. 2012-1, 2012-1 IRB 1, Section 15.03.

⁶¹ Treas. Reg. § 601.602.

⁶² Treas. Reg. § 601.602(a).

⁶³ Treas. Reg. § 601.602(a).

⁶⁴ Treas. Reg. § 601.602(b).

⁶⁵ Treas. Reg. § 301.7805-1(c); see, also, "News Analysis: How Do FAQs Fit Into the Guidance Puzzle?," 2011 TNT 64-1 (noting that forms and publications "receive a final sign-off from Treasury's Office of Tax Policy").

⁶⁶Manocchio v. Commissioner, 710 F2d 1400 (9^th Cir. 1983); Zimmerman v. Commissioner, 71 T.C. 367, 371 (1978), affd. without published opinion 614 F.2d 1294 (2d Cir. 1979); James v. Commissioner, T.C. Memo. 1999-160.

⁶⁷ See e.g., Campbell v. Commissioner, T.C. Memo 2001-118; Pohoski v. Commissioner, T.C. Memo. 1999-17.

⁶⁸ The 2010 instructions state that registered domestic partner in one of the three states generally must report half of the combined community income. In contrast, the 2009 instructions say they cannot report half of such income.

⁶⁹ IRS, "Questions and Answers for Registered Domestic Partners in Community Property States and Same-Sex Spouses in California," http://www.irs.gov/newsroom/article/0,,id=245869,00.html (retrieved March 7, 2012).

⁷⁰ I.R.C. § 6662(d)(2)(B)(1).

⁷¹ I.R.C. § 6664(d)(2).

⁷² See IR-2012-6 (Jan. 11, 2012) announcing the release of the National Taxpayer Advocate's annual report to Congress. Per the information release: ""The overriding challenge facing the IRS is that its workload has grown significantly in recent years, while its funding is being cut," Olson said in releasing the report. "This is causing the IRS to resort to shortcuts that undermine fundamental taxpayer rights and harm taxpayers -- and at the same time reduces the IRS's ability to deliver on its core mission of raising revenue."" Available at http://www.irs.gov/newsroom/article/0,,id=252284,00.html (retrieved March 6. 2012).