“hazards of litigation” Archives

IRS Appeals Will Not Consider Regulatory Invalidity and Subregulatory Procedural Invalidity Challenges

by Kevin Spencer and McDermott Will & Emery | Sep 21, 2022 | Appellate Courts, Court Procedure Matters, IRS Appeals, IRS Guidance, Tax Reform, Trial Courts

In Mayo Found. for Med. Educ. & Rsch. v. United States, 131 S.Ct. 704 (2011), the Supreme Court of the United States made clear that administrative law rules apply to tax guidance like they do to other federal agency guidance. Since Mayo, the Supreme Court and other courts have provided further guidance—both in the tax and non-tax contexts—regarding the proper analysis in determining the validity of, and deference to, regulatory guidance.

Over the past decade, the number of taxpayer challenges to guidance issued by the Internal Revenue Service (IRS), whether in the form of regulations or subregulatory guidance (i.e., revenue rulings, revenue procedures, notices and announcements), has increased significantly. These challenges have taken a variety of forms, such as regulatory invalidity under Chevron USA, Inc. v. NRDC, 467 U.S. 837 (1984) and procedural invalidity under the Administrative Procedure Act (APA). Some successful challenges to the validity of IRS guidance and the ability to challenge such guidance in a pre-enforcement context include CIC Servs., LLC v. IRS, 141 S.Ct. 1582 (2021); United States v. Home Concrete & Supply, LLC, 132 S.Ct. 1836 (2012); Mann Construction, Inc. v. Commissioner, 27 F. 4th 1138 (6th Cir. 2022); Good Fortune Shipping SA v. Commissioner, 897 F.3d 256 (2018) and Liberty Global, Inc. v. United States, No. 1:20-cv-03501-RBJ (D. Colo. 2022). Many other challenges are pending both at the administrative level and in court.

The IRS and the US Department of the Treasury (Treasury) have noticed the increase in challenges to its published guidance. One important change is the more detailed discussions in preambles to final regulations regarding comments received and how the IRS views and incorporates said comments. This is a welcome development, although sometimes a tortuous one for taxpayers who must wade through hundreds of pages of preambles in some regulation packages. Another change, and the subject of this post, is the IRS’s views on how to deal with such challenges during the administrative process.

A federal tax controversy can involve three levels of review: Examination, Appeals and litigation. At the Examination stage, revenue agents and other IRS personnel develop the facts and determine whether an adjustment is warranted. Importantly, “hazards of litigation” are not considered at the Examination level, meaning, issues are viewed as binary—in favor of the IRS or the taxpayer—and not negotiated as a percentage of the item. However, at the Appeals level, the Appeals team weighs “hazards of litigation” to determine whether a case can be settled by the parties. Hazards of litigation are also considered at the litigation level.

Validly promulgated tax regulations are approved at the highest levels of the IRS, Treasury generally carry the force and effect of law and are binding on taxpayers and the IRS. Subregulatory guidance is also approved at senior levels of the IRS and the Treasury. At the Examination level, the IRS will not entertain challenges to the validity of [...]

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In-Person IRS Appeals Conferences Are Here to Stay

by Kevin Spencer and McDermott Will & Emery | Dec 14, 2018 | IRS Appeals, IRS Guidance, Uncategorized

On November 28, 2018, the IRS issued a memorandum to its Appeals division employees, providing guidance on how and where to conduct Appeals conferences with taxpayers. As we have previously reported, the IRS Appeals division has been in flux for the last several years constrained by limited resources, retiring Appeals Officers, and an ever-growing case load. Because taxpayers have a right to seek redress before an independent Appeals Officer, the IRS has been exploring different ways to use technology to hold virtual taxpayer conferences. Numerous taxpayers, however, continue to believe that an in-person conference is the most efficient and beneficial way to resolve their differences with the IRS. Apparently, the IRS recognizes this as well.

In a memorandum to Appeals employees, the IRS provides “interim” guidance for in-person conferences. The memo includes revisions to the Internal Revenue Manual. Of particular note is the ability of IRS Appeals to send cases to offices that can accommodate in-person conferences. Additionally, there is a clear mandate to hold Appeals conferences (upon approval of a manager) in “other federal buildings, when feasible and necessary to provide a conference opportunity.”

Practice Point: We are big fans of in-person Appeals Conferences. Although holding a conference over the phone or through some internet portal may save travel time and expense, it is typically a poor substitution for face-to-face negotiations. Consider how much easier it is to tell your daughter that she cannot go to the mall with her friends on the phone versus to an in-person plea! An Appeals Officer measures the settlement possibilities by a “hazards of litigation” standard. Part of that analysis may include sizing up the taxpayer and representative, their case, and willingness to “go all of the way.”

More Changes to IRS Appeals’ Practices?

by Kevin Spencer and McDermott Will & Emery | Mar 12, 2018 | IRS Appeals, IRS Guidance, Uncategorized

We have previously commented on changes at the Internal Revenue Service (IRS) Appeals Division, including: (1) the allowance of Appeals to invite representatives from the IRS Examination Division (Exam) and IRS Office of Chief Counsel to the Appeals conference, (2) the limitations on in-person conferences, and (3) the use of “virtual” conferences.

IRS Appeals Chief Donna Hansberry discussed these changes at a recent tax law conference held by the Federal Bar Association. According to reports, Ms. Hansberry wants feedback from practitioners on the compliance attendance and virtual conferences. (more…)