Tax Research Ch. 2: Administrative Authorities

Under general authority of §7805. These regs attempt to clarify the provisions of a particular Code section. The bulk of regs issues are interpretive.

Regs that tend to be accorded a higher level of authority than interpretive regs. Congress directs IRS to perform a law-making function and specify substantive requirements of a particular provision.

These regs specify detailed procedural rules for various aspects of tax practice, including filing requirements

where Reg drafts and Final Regs are published

Doesn't have the force and effect of law of a Final Regulation. Interested parties are given 30 days to comment on the Proposed Treasury Decision (TD).

published in the Federal Register as a Treasury Decision (TD) and then published in the weekly Internal Revenue Bulletin and later in the semi-annual Cumulative Bulletin.

issued by the IRS without the normal comment period and generally effective on the date of issuance. "Fast lane guidance." Generally issued when requirements for public notice are impracticable, unnecessary, or contrary to the public interest. As of 1998, Temp Regs must be issued as Proposed Regs at the same time, and TRs automatically expire 3 yrs after issuance. TRs considered authoritative until superceded by Final Regs.

1. Income Tax
20. Estate Tax
25. Gift Tax
31. Employment Tax
54. Excise Tax Reg
301. Procedural Matters

Treas. Reg
Prop. Treas. Reg.
Temp. Treas. Reg.

official IRS interpretations of the tax consequences of the Code's application under a hypothetical fact pattern.
-From IRS National Office
-No precedential value or authority
-Published weekly in IRB, semi-annually in CB

describe the internal practices and procedures of the IRS in administering the federal tax laws. First Rev Proc each yr provides process for PLRs

Cited similarly to Rev. Ruls.
- e.g., Rev. Proc. 94-137, 1994-2 C.B. 76

-issued by the IRS National Office in response to TPs' requests for IRS's position on a particular tax issue
-available under FOIA and listed as "substantial authority" for avoiding penalties

Private Letter Ruling
Year 86
51st week of the year
12th ruling issued that week

TAM. Another type of letter ruling issued by the IRS. Generally involves a completed transaction. Response requires a high level of expertise and a consistent approach by the IRS. Same scope and authority as PLR

FSAs; memoranda issued by the National Office of the IRS to IRS agents, attorneys, and appeals officers who seek advice and guidance for either developing an issue or assessing litigation hazards

issued by the office of a local IRS District Director in response to a request for a formal tax determination concerning a a particular situation or transaction. Common ones are determining tax-exempt status or determining qualification of a pension plan

published by IRS National Office when they believe that it is necessary to provide quick interpretive guidance to the public. Similar in scope to Rev Rulings and Rev Procedures.

generated by the office of the IRS Chief Counsel in response to an internal IRS request for a legal analysis. Provide an indication regarding the IRS position in an upcoming ruling, but since they are internal docs, they're not binding. Marcus: "one lawyer's swag"

a TM is a letter of transmittal from the IRS Commissioner to the Assistant Secretary of Treasury for Tax Policy that accompanies TDs (ie, Final Regs). Little value.

AOD; recommends what action the IRS should take in response to the adverse decision, such as acquiescence, non-acquiescence, or simply do nothing at the present time.

IRM; compilation of the procedures, policies, instructions, and guidelines governing the IRS's organization and ops. Insights into how IRS construes a particular Code provision, audit guidelines by industry, etc. Little authoritative value

Informational release of the IRS; Issued by Nat'l Office or District Office to call attn to something. Advisory only and not binding

TIRs; issued by IRS to inform public quickly regarding important technical developments. Little precedent value.

Issued by IRS regarding general information, such as new filing requirement. Not substantive.

Process between taxpayers and Commissioner of IRS as to specific issues or tax liability. Ex: determination of estate tax liability so assets can be distributed to beneficiaries. Not legally binding.

May be issued by the IRS at the conclusion of an audit, indicating that no adjustment will be made in the original tax liability. May protect the TPs from retroactive adjustments by IRS, but are NOT binding.

Pamphlets, etc. for public's self-help. Not authoritative.

Similar to publications; not "authority." However, can establish reasonable cause to avoid Code penalties.

Section stating the the Secretary shall provide all needful rules and regulations

In the past, interpretative regs evaluated under this standard. Involves "language, origin, and purpose."

In the past, legislative regs evaluated under this standard. "Unless arbitrary, capricious."

After Supreme Court's decision in this case, any reg is under Chevron unless under "notice & comment" procedures. It's not completely clear whether the National Muffler approach still will be applied to regulations that aren't subject to notice and comment.

__________ __________ include:
-getting amended/updated
-affected by changes to Code
-less weight when regs expire

retroactive regs

Facts
Issues
Law/Rule
Analysis
Conclusion