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The perils of bright lines: section 6110(K)(3) and the ambiguous precedential status of written determinations.


Internal Revenue Code (Code) section 6110(k)(3) states that, with certain minor exceptions, "a written determination may not be used or cited as precedent." (1) Overlooked in popular abridged versions of the Code, (2) this deceptively simple provision derives much of its visibility from ominous-sounding boilerplate usage by the Internal Revenue Service (Service)--specifically, at the beginning or end of each Private Letter Ruling (PLR), Field Service Advisory (FSA), or item of Chief Counsel advice. (3) The provision clearly provides an important caveat to taxpayers to whom written determinations have not been specifically issued. Neither the regulations nor the Service's boilerplate statement, however, provides guidance as to what it all means. Who may not use or cite the written determinations as precedent--the judge, the taxpayer, the Service, or all three? More fundamentally, what does the term "precedent" mean in this context?

The questions surrounding section 6110(k)(3) extend beyond idle speculation when the Service takes position X in a written determination and subsequently takes opposing position Y in litigation against a taxpayer. The taxpayer--who may have taken the written determination into account in planning the litigated transaction--wishes to add the written determination to his legal argument that position X, not position Y, is the correct interpretation of the tax law. In such a situation, the use of section 6110(k)(3) may potentially destroy the taxpayer's argument.

The judicial system has failed to provide a consistent or coherent answer as to how section 6110(k)(3) governs these, and related, situations. While some judges flatly have rejected the use of written determinations in their opinions, others cite written determinations in contexts that are arguably precedential. (4) Depending on one's definition of precedent, it therefore seems that a significant fraction of judges are either interpreting section 6110(k)(3) far too narrowly or disregarding it altogether.

The ABA Section of Taxation Report of the Task Force on Judicial Deference, released in the fall of 2004, recommends that federal courts take into account written determinations "only to the extent to which their logic and reasoning appeal to the reviewing court." (5) While this interpretation is actually friendlier to the citation of written determinations than the approach that many courts have taken under section 6110(k)(3), the report's statutory analysis is somewhat terse: "Statutory circumstances in the form of section 6110(k)(3) call for no deference to written determinations such as private letter rulings." (6) Yet while it is very clear that section 6110(k)(3) does not actually call for deference, the report is silent as to the extent to which the statute permits it.

The study and ultimate resolution of these serious ambiguities surrounding section 6110(k)(3) is important for three reasons. First, although the only taxpayers bound by written determinations are those who have requested specific PLRs, all written determinations are made public under the Freedom of Information Act (FOIA) (7) and Code section 6110. (8) In both 2001 and 2002, the Service released around 2000 private rulings; (9) in 2003 alone, it issued over 1900 written determinations. (10) The documents covered by section 6110(k)(3) thus make up a significant amount of public knowledge about the interpretation of the tax law. The precise status of this knowledge should be made clear to taxpayers, who in the course of tax planning frequently face situations not covered by case law, regulations, or plain statutory language. (11)

Secondly, if interpreted strictly, section 6110(k)(3) conflicts with disparate-treatment doctrines that impose something approaching a duty of consistency on the Service. (12) Although the extent to which the Service has such a duty is still ambiguous, case law has raised the possibility that the Service may be bound, under certain circumstances, to give similar treatment to similarly situated taxpayers. (13) If section 6110(k)(3) restricts the mere citation of PLRs, as it does in some courts, the right of a taxpayer to claim disparate treatment against the Service with respect to its issuance of favorable PLRs is virtually destroyed.

Finally, section 6110(k)(3) is fascinating from an academic perspective because its interpretation exposes rifts in the legal community regarding the broader and underlying issues of law. Reading and applying the provision requires judges to make implicit choices in the intersecting fields of constitutional law, administrative law, and common law jurisprudence. Among other decisions, they must decide whether separation of powers principles allow Congress to restrict the freedom of the judiciary to recognize precedents, (14) gauge the extent to which an agency may be bound by its previous declarations, (15) and settle on the elusive definition of precedent. (16)

This Note outlines the sources of confusion surrounding section 6110(k)(3) and evaluates possible common law and statutory remedies for its ambiguities. Part II begins with an inquiry into the background and legislative history of section 6110. Part III describes and categorizes the different judicial responses to, and reformulations of, section 6110(k)(3). Part IV discusses and attempts to resolve the sources of confusion, outlined above, surrounding the interpretation of the statute. Part V discusses possible changes to the section 6110(k)(3) framework.

Starting from the premise that the resolution of the attendant serious constitutional, administrative, and jurisprudential issues is beyond the scope of a largely administrative tax statute, the Note proposes that section 6110(k)(3) be stricken from the Code. The highly limited judicial doctrines relating to the use of written determinations will ensure that written determinations are not given an unworkable amount of reliance, while allowing the courts to draw upon the wealth of the Service's collected expertise. Eliminating section 6110(k)(3) thus will lead to a more flexible and predictable judicial use of written determinations, in addition to creating a stronger tie between the Code and the existing reality of judicial practice.


This Part begins by explaining the fairly uncontroversial meaning of "written determinations," in order to convey the scope of section 6110(k)(3). As mentioned before, the provision prohibits the use and citation of "written determinations" as precedent. The meaning of the statute's other major term, namely "precedent," is unclear and will be discussed in Part IV. The second section of Part II is devoted to the legislative history of section 6110(k)(3).

A. Terminology of Written Determinations

A "written determination" is defined as "a ruling, determination letter, technical advice memorandum, or Chief Counsel advice." (17) A brief survey of these categories follows.

Rulings. A comparatively prominent class of written determination is the ruling, often called a private letter ruling, PLR, or advance ruling. (18) A PLR is a written statement by the National Office, prepared in response to a written request from a taxpayer that states how it will treat a prospective or completed transaction for federal tax purposes. (19) A taxpayer may generally rely, if doing so in good faith, on a PLR received from the Service. (20) A ruling may be modified or revoked under certain circumstances. (21)

Although one court has held that section 6110(k)(3) applies to revenue rulings as well as to PLRs, no other court is known to have done so. (22) The regulations confirm that a mere ruling is in a distinct class from a revenue ruling. While the former is an unofficial interpretation of the tax law that is issued directly from the National Office to the taxpayer, (23) the latter is an official interpretation of the tax law that must be published generally, in the Internal Revenue Bulletin, "for the information and guidance of taxpayers, Internal Revenue Service officials, and others concerned." (24)

Determination letters. Determination letters are written statements that apply principles and precedents, previously announced by the National Office, (25) to specific sets of facts. Although a determination letter has the same effect as a PLR, it is different in that it is issued by directors instead of by the Office of Chief Counsel. (26)

Technical advice memoranda. TAMs are furnished by the National Office for the benefit of field office personnel, under certain procedures, in response to any technical or procedural question that develops during a proceeding on the interpretation and proper application of tax law, tax treaties, regulations, revenue rulings, notices, or other precedents published by the National Office (27) to a specific set of facts. (28) Only the government may request a TAM, and then only in connection with a closed transaction. (29) The purpose of TAMs is to help Service personnel close cases and also to establish and maintain consistent Service rulings. (30)

Chief Counsel advice. Chief Counsel advice is written advice that conveys a legal interpretation of a revenue provision, Service or Chief Counsel position regarding a revenue provision, or a legal interpretation of federal law relating to the assessment or collection of liabilities under revenue provisions. (31) Chief Counsel advice is prepared by the Office of Chief Counsel for its field employees. (32) The category includes field service advice (FSA), technical assistance to the field, service center advice, litigation guideline memoranda, tax litigation bulletins and criminal tax bulletins. (33)

From this survey of the "written determinations" terminology, we can see that written determinations demonstrate a tension between being universal and specific applications of law. Section 6110 makes the documents universally available, thus implicitly inviting the public--and potentially the courts--to derive more generalized conclusions from them. Indeed, one of the concerns motivating Congress to make these documents public was the fear that this enormous body of tax knowledge and interpretation would result in a secret law, the limited accessibility of which would undermine the private ruling system's credibility. (34) However, because written determinations are issued specifically to individual parties (the taxpayer or various Service personnel), they are arguably comparatively informal, more personal communications. Supporters of a strict reading of section 6110 could plausibly claim that written determinations are composed on too casual and ad hoc a basis to contain useful general insights into the interpretation of the Code.

On a less abstract level, this dissonance represents a difficult balancing act between the interests of taxpayers and the Service. On the one hand, the Service has an interest in preserving its ability to change its mind--or, more correctly, to decide that the limited number of officials who signed off on the ruling were wrong. On the other hand, as the legislative history discussed below suggests, the taxpayer has a legitimate interest in access to the tax law--and this access is naturally compromised when the Service changes its interpretation of that law without prior warning. As shown below, section 6110(k)(3) presents but does not clearly answer the important question of how these interests may be balanced or reconciled.

B. Legislative History

Section 6110(k)(3) is part of the general Code section 6110, which requires written determinations and related background file documents to be made available to the public. (35) In enacting section 6110 as part of the 1976 Tax Reform Act, Congress was more concerned with the restriction of information than the free flow of it. Historically, a PLR issued in response to a taxpayer request was officially kept confidential. (36) Shortly before the enactment of section 6110, however, two courts had already held private rulings to be open to public inspection, pursuant to the FOIA. (37)

Section 6110 thus represented Congress's bid to remove the Service's written determinations from FOIA jurisdiction, (38) at least partly in order to answer "significant additional questions raised since [Tax Analysts and Fruehauf]." (39) These issues included the provision of safeguards to prevent the disclosure of identity of recipients of rulings, but the House report also cites the question of "whether private rulings should be available as 'precedent' for other taxpayers." (40) It therefore appears that the concern spurring the enactment of section 6110(k)(3)--the desire to restrict the precedential value of written determinations--was a key motivating force behind section 6110.

The reasoning behind section 6110(k)(3) is more directly explained by the Joint Committee of Taxation:
 Under prior administrative rules, a private letter ruling, technical
 advice memorandum, or determination letter was not to be used as a
 precedent by the IRS or any person. If all publicly disclosed
 written determinations were to have precedential value, the IRS
 would be required to subject them to considerably greater review
 than is provided under present procedures. The Congress believes
 that the resulting delays in the issuance of determinations would
 mean that many taxpayers could not obtain timely guidance from the
 IRS and the rulings program would suffer accordingly.... Thus, if
 the IRS issued a written determination to a taxpayer with respect to
 a specified transaction which occurred in a particular year,... the
 earlier determination could not be used by the taxpayer or the IRS
 as a precedent for the subsequent year unless the determination
 specifies that it applies to a series of such transactions. (41)

The legislative history thus invites three important points. First, the House report does not explicitly restrict the power of judges to use or cite written determinations as precedent. Indeed, the fact that the above hypothetical is applied only to the "the taxpayer or the IRS," when combined with the ambiguously passive language of the statute, may suggest that judges are not restricted by section 6110(k)(3). Secondly, the House report does not even attempt to define "precedent" and actually seems either unable or unwilling to do so, given its cryptic placement of "precedent" inside quotation marks. (42) Both lacunae in the legislative history leave room open for considerable debate, discussed in Part IV, in the areas of constitutional law and common law jurisprudence.

Lastly, as discussed below, the circumstances surrounding the enactment of section 6110(k)(3) suggest the possibility that Congress made a trade-off between timeliness and enhanced consistency. If the goal of the statute was to allow taxpayers to receive lesser-reviewed written determinations sooner (instead of more thoroughly reviewed written determinations later), the right of taxpayers to complain about inconsistent rulings is called into doubt.


The incoherent state of section 6110(k)(3) interpretation is summarized by one practitioner's guide: "[B]oth taxpayers and courts have often disregarded [section] 6110(k)(3) in whole or in part and have given precedential value to written determinations. Not all courts, however, are as willing...." (43) The situation is even more complicated than it sounds. First, as Part IV will demonstrate, it is unclear whether the taxpayers and courts are actually disregarding the provision, or simply interpreting it comparatively narrowly. Furthermore, there is a fairly detailed spectrum between complete disregard of the statute and a total willingness to use written determinations as precedent. The following sections survey the four principal types of interpretations that courts have given to section 6110(k)(3) in recent years: (1) total refusal to cite or use written determinations, (2) use of written determinations as non-binding precedent, (3) use of written determinations only to show past Service positions, and (4) use of written determinations only to show Service inconsistency.

A. Total Rejection

Some courts have refused to cite or use written determinations for any purpose. The Seventh Circuit has provided a typical example of the total rejection approach:
 In support of her position, [taxpayer] Laurine also cites IRS
 Private Letter Ruling No. 8905058. A private letter ruling, however,
 may not be used or cited as precedent. See 26 U.S.C. [section]
 6110[(k)] (3) ... Thus, we will not consider that portion of
 Laurine's brief which relies exclusively on the IRS private letter
 ruling as authority. (44)

Such an approach is considered broad because it implicitly declines to consider any potential use of the PLR as non-binding precedent, proof of former Service position, or proof of former Service inconsistency. (45) The Fifth, (46) Sixth, (47) Ninth, (48) and Tenth (49) Circuits, as well as the Court of Claims (50) and various district courts, (51) have at some point--if not always consistently--used the total rejection approach. The Tax Court in particular has favored this approach at least five times in the last three years alone. (52)

A number of courts taking the total rejection route have explicitly declared their refusal to use written determinations for comparatively less precedential purposes. (53) The Tax Court lashed out at the Sixth Circuit's use of a private letter ruling to establish the inconsistency--and therefore decreased credibility--of the Service's position. (54) The district court launched a similar attack in the same year. (55) According to that court, section 6110(k)(3) was in fact a codification of pre-1976 Court of Claims decisions which rejected taxpayers' disparate-treatment arguments that they were entitled to relief because the Service had inconsistently given more favorable ruling-revocation treatment to similarly situated taxpayers. (56) Both Clack and Stichting can be supported by the reasoning that the inconsistency in those cases was merely a need for a higher and more thorough level of review by the Service. According to this school of thought, section 6110(k)(3) represents the taxpayers' choice of timeliness over consistency, and taxpayers therefore have no right to complain of inconsistencies between PLRs.

The Court of Claims in Vons Cos. v. United States (Vons II) was equally scathing about the use of written determinations to demonstrate the Service's prior position. (57) At least in this case, the court appeared to view that strategy as impermissible bootstrapping--that is, the dressing up of factual knowledge to become legal argument: "This information becomes neither more relevant, precedential, nor compelling simply because it is regurgitated and recharacterized as 'factual background' in self-serving affidavits." (58)

The Supreme Court possibly ventured towards total rejection in United States v. Hill (Hill II), where it overruled a Federal Circuit case, Hill v. United States (Hill I), that had given some weight to a taxpayer-cited TAM. (59) The Court cited section 6110(k)(3) in the paragraph in which it justified its refusal to follow the TAM in question. (60) According to Vons I, the Hill II holding severely limited the judicial use of written determinations. (61) However, the Vons I view of Hill II may be an oversimplification; because the Hill II court also concluded that the TAM in question "simply [was] not relevant," its holding therefore never reached the question of how much weight to give relevant TAMs. (62) The case's treatment of section 6110(k)(3), especially viewed alongside subsequent Supreme Court decisions, (63) was therefore potentially much more liberal than the total rejection approach.

Many courts, like Hill II, have similarly punted on the total rejection approach. These courts vigorously cite section 6110(k)(3) without clarifying the exact meaning of precedent or precedential value and subsequently devote much time and energy to proving why those written determinations were inapplicable to the facts of the situation at hand. (64)

B. Non-Controlling Authority

To date, no federal court has explicitly held a written determination to be a binding precedent, or based a holding solely on the authority of a written determination. Many courts, however, have viewed written determinations as supporting the correctness of the taxpayer's position against the Service's litigation position, or vice versa. This approach directly contrasts with the total rejection approach described above. (65)

In United States v. Craft, the Supreme Court cited no less than three written determinations to support the taxpayer's position, and the Court held that a federal tax lien could not attach to tenancies by the entirety to satisfy an individual spouse's tax liability. (66) The Second, (67) Fifth, (68) Sixth, (69) and Seventh (70) Circuits, as well as the Tax Court (71) and some district courts, (72) also have used written determinations as persuasive guidance. These opinions, like Craft, scrupulously avoid any mention of section 6110(k)(3).

Other courts have faced directly the tension between using the substance of a written determination to support a legal position, and honoring the injunction against using or citing written determinations as precedent. Some of these more forthright courts have often resorted to outright rewordings--conscious or not--of section 6110(k)(3). One approach is to imply that section 6110(k)(3) merely prohibits courts from relying on written determinations, by asserting that the court has obeyed section 6110(k)(3) by refraining from such reliance. (73) A similar strategy is to assert that the written determinations, though persuasive, are not controlling. (74) In an extremely literal reading of the statute, one court has even intimated that it may use written determinations to support its legal conclusions--so long as it does not actually quote from them. (75) Another court has suggested that, if the court asked the Service to explain its inconsistent positions and no explanation was forthcoming, the court would be authorized to "look to" prior Service conduct. (76) Yet another species of the non-controlling authority route is to state that the opinions, while "instructive" or "persuasive" with respect to the interpretation of the Code, nonetheless have no precedential force. (77)

Unless one attributes great importance to the value of precedent as a speech-act, the differences between these approaches appear to be little more than semantic conflicts regarding the meaning of precedent. (78) While cases like Shaev v. Saper and Thom v. United States use written determinations to support legal propositions by narrowing the meaning of precedent to binding or controlling precedent only, (79) Harbison v. United States and Buckeye II interpret the statute to cover only situations where a precedent has been relied upon, or otherwise used to bind the court to a certain course of action. (80) The results in each instance--that is, the use of the written determinations, and their prestige, as such to reinforce the correctness of a legal proposition--are functionally identical.

The insistence of courts such as that in Buckeye II--that they are merely reciting intrinsically persuasive arguments from written determinations that possess no weight as such--is highly questionable. If Buckeye II truly believed such an argument in its purest form, it could merely have raised the points made by the written determinations in its own words. Given that written determinations generally contain less than revolutionary conclusions that one of the parties or the court itself might have arrived at independently, the court might well have phrased the points as its own. Yet the court, in this case and others, chose to speak through the voice of the written determination itself. In this context, the very choice to cite written determination strongly indicates that some authoritative weight--conscious or not--has been given to the document.

C. Proof of Past Service Position

Hovering between the total rejection and non-controlling authority extremes is the position, taken by the Supreme Court, that although taxpayers may not rely upon written determinations not issued specifically to them, such documents "do reveal the interpretation put upon the statute by the agency charged with the responsibility of administering the revenue laws." (81) Hanover is not controlling because it predates section 6110(k)(3) by some fourteen years. From the perspective of the Service, for whom this position is uncomfortably close to restricting its freedom to change erroneous interpretations of the tax law, written determinations are not full-fledged interpretations by the agency, but rather the position of a small number of Service employees. Numerous courts--even in recent years--have nonetheless followed and cited the Hanover interpretation. (82)

Because one may use evidence of a past Service position to make numerous arguments, this approach to section 6110(k)(3) actually encompasses several approaches in one. For many courts, this proof of past Service position approach is merely a roundabout application of the non-controlling authority approach: the fact that the Service has previously taken a position X makes it more likely that X is correct, and hence the written determination in question supports X while not binding the court to it. (83)

Other courts, however, use evidence of past Service positions in a much narrower sense. In Rowan Companies, Inc. v. United States, the Supreme Court cited a series of conflicting PLRs, some of which conflicted with certain Treasury regulations, as justification for invalidating the regulations which had not been implemented in a "consistent or reasonable manner." (84) Although the inconsistencies were clearly meant to demonstrate inconsistency between the written determinations, and between the written determinations and the Service's own regulations, the court stated that the rulings had no precedential force and were merely evidence that a certain rule under earlier, conflicting Treasury regulations "did not merely lie dormant on the books after the Commissioner issued [the second set of regulations]." (85) The decision, though not taking the non-controlling authority approach, strongly undermines the pro-Service argument that written determinations are not to be seen as unified undertakings by the whole Service, but rather as comparatively isolated statements by individual employees--lawyers who, in Rowan, have simply misunderstood the Treasury regulations in question.

Rowan thus spawned two further streams of section 6110(k)(3) interpretation, one allowing use of written determinations to show inconsistency in the Service's positions, and a second restricting use of written determinations to demonstrations that the Service had routinely issued rulings on a topic before. Vons I represents an example of the latter, narrower interpretation of Rowan, stating that the Court had cited the PLRs only "as an indication that the IRS had regularly considered and issued rulings on a particular subject." (86)

Vons I notwithstanding, numerous courts have taken the former, more liberal route and used written determinations to show that the Service's litigating position conflicts with past positions (87) or to demonstrate agency confusion regarding points of tax law. (88) Often--and perhaps inevitably--this inconsistency/confusion approach also morphs into a species of non-controlling authority approach: to expose the Service's inconsistency is to increase the comparative credibility of the taxpayer's position. Yet the inconsistency approach also stands on its own because it is essential to the unfairness doctrines made famous by cases like International Business Machines Corp. v. United States (IBM). (89) Without the power to cite a PLR issued to similarly situated taxpayer Y alongside taxpayer X's less favorable PLR, taxpayer X would find it very difficult--if not impossible--to claim disparate treatment relief.

D. Summary of Conflicts

Not only is the general body of section 6110(k)(3) case law conflicted, but the conflict extends across both circuits and time. The Third and Federal Circuits, as well as the Court of Claims, lean towards the non-controlling authority approach. (90) In recent years, the Tax Court has shown an increasing tendency to support the total rejection method. (91) Yet the most disturbing conflicts are those that extend across time. The Fifth, (92) Seventh, (93) Eighth, (94) and Tenth (95) Circuits, as well as the Tax Court, (96) have all taken profoundly conflicting, even oscillating positions within short periods of time. The Supreme Court has produced three opinions in cases with section 6110(k)(3) issues, and each time the Court has supported a different interpretation of the statute; (97) the most recent such opinion, Craft, fails to mention section 6110(k)(3) at all. (98)

Such erratic behavior points to fundamental problems in the statute. First, there is a concern that courts are abusing section 6110(k)(3) by using it to reject the guidance of written determinations without justification, while ignoring the statute when a written determination coheres with the court's thinking. Secondly, there is a significant possibility that the courts are not actually evolving in their interpretation of section 6110(k)(3), but rather stumbling in good faith over a statute that presents troubling constitutional, administrative, and jurisprudential issues.


Four main and interrelated categories of controversy cluster around section 6110(k)(3): (1) confusion in the statutory language, (2) the issue of the duty of consistency, (3) questions regarding the statute's constitutionality, and (4) the problem of distinguishing between binding and non-binding precedent.

A. Confusion in Statutory Language

Section 6110(k)(3) crams two material ambiguities into a single sentence. First, it is unclear if the statute constrains the litigating parties, the courts, or both. Secondly, the term "precedent" is undefined.

Even more serious is the fact that not only is the Code silent as to adverse consequences for litigants who break section 6110(k)(3), but also lawyers have never been known to face any real consequences if they use or cite written determinations as precedent. There is little, if any, evidence of lawyers being disciplined for doing so. By comparison, breaking the Ninth Circuit's no-citation rules (99) with respect to unpublished opinions can be--and has been--grounds for discipline of the lawyers involved. (100) The fact that section 6110(k)(3) is not a bright-line rule--there are many definitions of precedent (101)--makes it extremely difficult to prove that an attorney broke the rule in bad faith. There may also be a circular relationship between the sense that section 6110(k)(3) applies only to judges, and the belief that the statute must apply only to judges because no lawyers have ever been disciplined for disobeying it.

Since the potential rewards of citing a written determination as precedent thus far outweigh the expected punishment, bending or ignoring section 6110(k)(3) is often a logical step. The tip of the iceberg may be seen in the countless published cases, a mere fraction of which were mentioned in Part III, where the court notes that one or both parties have presented written determinations in their briefs.

B. Duty of Consistency

The tax law is still uncertain as to the extent to which the Service is bound to afford one taxpayer the same favorable treatment it has given all similarly situated taxpayers, even if the treatment does not accord with correct application of the Code. PLRs "would seem to be the primary means of demonstrating Service inconsistency because they are numerous, readily obtainable, thoroughly indexed, and represent the Service's considered views on the merits of the questions of law addressed." (102) Such a perspective begs the question of how such a use of PLRs may be reconciled with section 6110(k)(3). The legislative history does not indicate a purpose to overrule a preexisting duty of consistency, which would be obliterated if section 6110(k)(3) truly prevented judges and lawyers from citing written determinations to demonstrate inconsistency. Whether a judge reads into section 6110(k)(3) the possibility of using PLRs to demonstrate Service inconsistency, then, may well hinge in somewhat circular fashion upon whether he considers the general duty of consistency to exist.

Numerous encouraging-sounding dicta, but few useful holdings, have emerged as fodder for lawyers seeking disparate-treatment relief for their clients. In IBM, IBM successfully sued for a refund of excise taxes paid when the Service revoked a PLR for IBM, but not a similarly favorable PLR for a similarly situated competitor. (103) Yet the IBM duty is not a general duty of consistency, but rather a duty of consistency deriving directly from the Service's statutory discretion to revoke PLRs. (104) There is also significant speculation on the part of the Service--reinforced by some judicial opinions--that IBM was limited to its facts. (105) Given the prospect of a duty of consistency which has been neither conclusively established nor disproved, it is not surprising that both courts and commentators have split across time and jurisdictions on the issue of whether written determinations may be used or cited to reveal inconsistency by the Service. (106)

C. Constitutional Questions

Subsection 1 addresses the issue of whether the separation of powers doctrine precludes Congress from controlling judicial decision-making to the extent that section 6110(k)(3) does (in the event that the statute applies to judges). Subsection 2 addresses the issue of whether the section 6110(k)(3) limitation on lawyers' legal speech contravenes the First Amendment.

A detailed explanation of separation of powers and the First Amendment is clearly beyond the scope of this Essay, which purports only to identify problems with a Code provision (including potential constitutionality issues) and to prescribe a remedy. The constitutional and other problems with section 6110(k)(3) are not integral to its aims, and a less problematic formulation can achieve those aims equally well, if not better. What follows are some key grounds of consensus and controversy that highlight the problems with a provision that can be construed to constrain judicial decision-making or legal argumentation. (107)

1. Separation of Powers (108)

Although separation of powers among the branches of government is not explicitly mentioned in the Constitution, it derives from the tripartite structure of the federal government: the separation results from the discrete treatment of the executive, legislative, and judicial branches in Articles I, II, and III of the Constitution, respectively. (109) The mindset of the framers can also be deduced from The Federalist: the separation of powers is "essential to the preservation of liberty" and a device "necessary to control the abuses of government." (110) As James Madison declared in Federalist No. 51, "Ambition must be made to counteract ambition." (111) One commentator has identified five purposes of the doctrine: (1) to create greater governmental efficacy, (2) to assure that statutory law is made in the common interest, (3) to assure that the law is administered impartially and that all administrators are under the law, (4) to allow the people's representatives to call executive officials to account for the abuse of their power, and (5) to establish a balance of governmental powers. (112) From the eighteenth century to the present day, commentators have recognized the constitutional and practical necessity of an independent judiciary. (113)

a. Case Law

Perhaps because of what one judge called the "admirable self-restraint hitherto exercised by the legislature and the executive," (114) courts have been unhelpful in identifying the exact point at which separation of powers principles forbid Congress to regulate judicial decision-making. It is clear that some degree of overlapping of functions is allowed. (115) Early on, however, the Supreme Court also expressed a willingness to forestall attempts to control the judiciary's exercise of its inherent decision-making function in United States v. Klein. (116) In Klein, an administrator sued on behalf of an estate to recover certain property the government had seized and sold under the Abandoned Property Collection Act of 1863. (117) Passed during the Civil War, the act allowed government agents to receive and collect all property captured or abandoned as Union forces moved into areas of rebellion. (118) However, the property owner could recover the proceeds from the sale of his property upon proof of loyalty to the Union. (119) Because the decedent had received a pardon, the Court of Claims held for Klein. (120)

While the government's appeal was pending, however, Congress passed a second statute. That statute provided, among other things, that a pardon--if it did not contain a disclaimer of participation in the pardoned acts--would constitute conclusive evidence of disloyalty. (121) The Supreme Court struck down the provision, stating that because "the court is forbidden to give the effect to evidence which, in its own judgment, such evidence should have, and is directed to give it an effect precisely contrary.... Congress has inadvertently passed the limit which separates the legislative from the judicial power." (122)

Some commentators and judges have seen in Klein the proposition that even though Congress may possess plenary power over an area affecting the judiciary (e.g., jurisdiction, evidence, or procedure), it may not employ that power to manipulate the judiciary's decision-making function, that is, the mechanism by which the courts apply law to fact. (123) This broad reading, in other words, bans congressional attempts to prescribe rules of decision to the judiciary in pending cases. In the section 6110(k)(3) scenario, the restrictions on the precedential weight accorded to written determinations are clearly part of the decision-making component of law. Choosing which precedents to follow, and when to follow them, is a key role of the judge in the common law system.

A narrower reading of Klein is that Congress can prescribe rules of decision in pending cases, as long as it does so by amending or changing the underlying law. (124) One speculates that such a reading of Klein may account for the extremely loose readings that judges occasionally give to section 6110(k)(3): the reporters are full of cases where courts casually cite to section 6110(k)(3) as representing not a restriction on precedent choice, but rather a restriction on the taxpayer's right to rely on written determinations as precedent. (125) A law that interferes with the power of the judge to accord precedent to written determinations is improper interference with judicial decision-making, but a law which sets forth a taxpayer's right to rely on another taxpayer's written determination (or, as in this case, a lack thereof) is a matter of underlying law--a rule which affects the substantive rights of the parties. The integral difference between these two rules is that a judge has discretion to reject the precedent in the first case, but not in the second. This quiet rewording of the statute further implies a sense on the part of the courts that the plain language of section 6110(k)(3) may violate Klein.

Other commentators, however, have read the ambiguous language (126) of Klein to focus on other issues than separation of powers: the presidential pardon, sovereign immunity, and the power of the government as litigant to regulate a decision in its own case. (127) The legacy of Klein, called "murky" by some commentators, is thus still unclear. (128) The case law of judicial independence, while not absolutely conclusive, nonetheless suggests that section 6110(k)(3)'s restrictions would violate the separation of powers doctrine if it were applied to the courts.

b. Theory

Modern commentators generally agree (or do not dispute) that Congress's power to regulate the decisional affairs of federal courts derives from the Necessary and Proper Clause. (129) The constitutional language intimates that the laws regulating the judiciary must be (1) for carrying into execution the judicial power described in Article III, and (2) necessary and proper for that purpose. To gloss over constitutional scholarship grossly, the polarizing controversy stems from the definition of "proper." A law is "proper" if it conforms to the Constitution's terms and design, which include the separation of powers. (130)

The formalist position, held by such libertarian commentators as Professor Gary Lawson, is that the three branches of government must be kept as separate as possible. Under this view, Congress "cannot tell courts how to reason any more than it can tell courts how to decide." (131) Congressional regulation of elements essential to the disposition of a legal question, including principles of admissibility (that is, what counts toward proving a proposition), is therefore a violation of the principle of departmental (in this case, judicial) independence that is built into the Necessary and Proper Clause. According to Professor Lawson, the Constitution does not allow this judicial independence to be compromised, even if the courts apply a "wrongheaded" method of decision-making. (132) The judicial branch's decision-making power may be checked only through the constitutionally prescribed method of impeachment or through the President's power to refuse to enforce judgments. (133)

The Lawson position, in its purest form, is unorthodox in the extreme; it illustrates one end of the spectrum in the separation of powers discussion. The system that Lawson would produce is highly problematic. Among other things, it would do away with Rule 52(a) of the Federal Rules of Civil Procedure, (134) as well as the Federal Rules of Evidence: statutes governing standards of review "are direct, profound regulations of the judicial decision-making process and thus directly challenge the principle of decisional independence," while Congress-made evidentiary rules are unconstitutional because "[i]f Congress can regulate any stage of [the process of reasoning to a decision, which necessarily involves admissibility rules], it can effectively shape the process of decision-making." (135)

Practically speaking, it is unlikely that the Supreme Court would accept a position that so radically threatened the traditional--and necessary--machinery of the judicial system. On a more abstract level, the Lawson position relies on the highly controversial premise that there must be no commingling between the judiciary and the legislature. Professor Lawson, a founding member of the Federalist Society, has advocated strongly in favor of an originalist meaning of the Constitution. (136) Yet, given that the framers themselves rejected rigid division of powers between the branches of government, (137) even Professor Lawson has acknowledged that distinguishing the legislative, executive, and judicial functions "at the margins" may prove "difficult." (138)

While the formalist approach is an integral part of Supreme Court jurisprudence, so is the functionalist approach--the idea that the separation of powers doctrine merely prohibits one branch from interfering with the core functions of another. (139) The functionalist approach with respect to the judicial branch is roughly represented by William F. Ryan's idea that judicial independence is not an end in itself, but rather a means of securing other goals: impartial judicial decisions, clear lines of public accountability for both judicial and political branches, and reducing the risk of arbitrary decisions. (140) According to this view, Congress can regulate judicial decision-making as long as the regulation does not hamper these three goals.

A third, drastic variation comes from Michael Stokes Paulsen. Professor Paulsen's view is that, in the absence of specific constitutional guidance, the choice of a method for assigning weight to precedent is ultimately a normatively informed policy decision rather than a legal decision. (141) In the case of choosing to be bound by a precedent, the policy may be what Professor Lawson denotes a "meta-norm[] for law-finding and fact-finding," such as predictability, restraint, or stability. (142) Professor Paulsen argues that since judge-made policies should not prevail over congressional statutes (so as not to present a dangerously unchecked judiciary), Congress may safely pass a statute restricting the court from using stare decisis. Again, this Note merely uses Professor Paulsen's position for the sake of illustration of an ongoing debate about the relationship between courts and the legislature.

Professor Paulsen's position relies on a conflation of two normally distinct concepts--norms and meta-norms. Roughly speaking, his argument is that the courts have no plenary constitutional power to make rules of policy that prevail over Congress's rules of policy; if the predictability of case law is such a policy matter, then Congress should be able to control the judiciary's use of stare decisis. Yet Professor Paulsen dismisses the important distinction between a norm such as the right to privacy, and a meta-norm such as judicial stability. Whereas norms provide general principles for many specific situations, meta-norms guide the complicated process of applying the general principles to the countless and often expected situations that may arise. To delegate this process to Congress would be, aside from unconstitutional, massively inefficient: the courts are best suited to control the meta-norms, since they are in everyday contact with the application and effects of such decisions. Meta-norms are not political policy, but judicial policy: they form an integral part of the judicial responsibility to apply law to individual facts.

It is significant that, under all three positions, a statute may not forbid consideration of precedent for its merely persuasive value. Even from Professor Paulsen's perspective, it is admittedly the judge's choice ex ante to be bound by a precedent that constitutes the policy choice, not the distinctly more legal process of evaluating a precedent and deciding to use it on the basis of its substantive qualities (along with the other available authorities). (143) In other words, being prohibited from binding oneself is quite a different thing from being prohibited from considering a matter. The principal dispute, then, is whether Congress may make a rule regulating the court's use of binding precedent. (144)

Given the spectrum of judicial independence roughly approximated by these three positions, Professor Ryan's position seems the most correct and most closely approximates the test that a court would use in this situation. As discussed above, the unorthodox Lawson and Paulsen approaches involve fundamentally problematic premises. Professor Ryan's approach recognizes the concerns of the framers and the concerns upon which the separation of powers doctrine was built. Yet this analysis does not provide a completely clear answer. Do the goals of impartiality, accountability, and non-arbitrariness demand that a court be allowed to treat a written determination as a binding precedent if it so wishes? Superficially, these goals do not appear to be greatly damaged by section 6110(k)(3), since the injunction against citing or using written determinations as precedent applies to both parties equally. Yet one can easily imagine situations where application of the statute would fail Professor Ryan's test. A Code provision without a helpful legislative history may invite two conflicting interpretations, and the court may be completely unable to choose between the two--either because the policy reasons for each interpretation are equally compelling, or because there are no compelling reasons for either viewpoint. In that case, a court may plausibly try to bind itself to the Service's previous and consistent interpretations to avoid having to make an arbitrary decision. After all, the Service possesses some intuitive prestige as a repository of tax expertise. Furthermore, in such close situations, a court may plausibly desire to bind itself to the Service's consistently held interpretations in situations where it deems tax predictability or reliability to be of the utmost importance. The duty of consistency, which is based on the same will to predictability, has actually been imposed in certain situations. (145) This view, however, would not support the use of written determinations as binding precedent. Rather, the distinction between binding and non-binding precedent is so difficult to discern as to be unfeasible to use. (146)

No specific view of separation of powers is necessary to a finding that section 6110(k)(3) is highly problematic. The fact that judges are faced with a statute that is arguably unconstitutional may invite, at the very least, a reluctance to apply it as forcefully as they otherwise might. This potential ambivalence about section 6110(k)(3)'s constitutionality may be a reason among many for the erratic nature of responses to the statute.

2. First Amendment

Unlike the separation of powers controversy, the First Amendment argument for the unconstitutionality of section 6110(k)(3) focuses on the freedom of lawyers, not judges, to use and cite written determinations as precedent. This First Amendment theory of Congressional noninterference is relatively new. To date it has played a significant part in only one Supreme Court case. (147)

The Legal Services Corporation (LSC) is a federal agency, created by Congress for the purpose of supplying legal aid in noncriminal proceedings or matters to those who cannot afford it. (148) A federal statutory provision prohibited legal representation funded by recipients of LSC funds if the representation involved an effort to amend or otherwise challenge existing welfare law. (149) Like an evidentiary rule, the provision thus prohibited LSC-supported attorneys from making certain arguments on behalf of their clients in court cases, most notably constitutional challenges to welfare law.

In a 5-4 decision, the Court struck down the provision as violative of the First Amendment. One reason the Court gave, among others, was that the courts depended on speech and expression for the "proper exercise of the judicial power." (150) Specifically, "attorneys should present all the reasonable and well-grounded arguments necessary for proper resolution of the case." (151) Because the provision prohibited lawyers from raising constitutional arguments that fit the "reasonable," "well-grounded," and "necessary" criteria, Congress had unconstitutionally "wrest[ed] the law from the Constitution which is its source." (152)

To some degree, Velazquez resonates with a number of past cases giving broad First Amendment protection to litigation. (153) The decision has attracted criticism, however, on the grounds that the Court should have analyzed the provision under due process and Article III instead. The argument is that because Article III courts are constitutionally created, the Article III judiciary's speech interest is limited to what is necessary for judges to perform their constitutionally mandated functions. This argument assumes that the Constitution's requirements for proper exercise of the judicial power are restricted to (1) due process and (2) compliance with Article III and its attendant judicial independence principles. (154) The Velazquez provision likely did not meet the high standards for violation of due process, (155) and the degree to which Congress can infringe on judicial decision-making--as Justice Scalia pointed out in his dissent, (156) and as discussed above (157)--is extremely unclear. (158)

Assuming arguendo that Velazquez is correct, the Velazquez test appears to be that a law cannot prevent lawyers from presenting arguments that are (1) reasonable, (2) well-grounded, and (3) necessary to the proper execution of the case. An argument that a written determination is persuasive, non-binding authority is arguably all three of these. Written determinations were made public specifically so that taxpayers could learn from the Service's past insights, and courts should be able to take similar advantage of this wealth of tax guidance.

A similar argument may be made for using written determinations, in certain plausible situations, as binding authority. As was previously demonstrated in the First Amendment context, a court can arguably decide to bind itself to a written determination in certain close or extremely difficult cases. Such a move, apart from accomplishing heightened predictability in the tax system, could steer the court away from a potentially arbitrary decision. The avoidance of arbitrariness is arguably necessary to the proper execution of the case.

On the other hand, one can argue in response that a court binding itself to a written determination, though decreasing the chances of an arbitrary decision, is never strictly necessary to the case's execution. A court can conceivably work harder to formulate an opinion that is not arbitrary, or it can attempt to discern a precedent in case law instead of in agency releases. (159) The question of binding precedents with regard to the Velazquez test is still unclear.

D. Distinguishing Between Binding and Non-Binding Precedents: A Futile Task?

There are two problems with the word precedent in section 6110(k)(3), both of which may cause confusion in the judicial interpretation of the statute.

First, there is the obvious confusion in the language of the provision: we do not know if precedent for that purpose includes either category of non-binding precedent as well as binding precedent. (160) Nor do we know if the section should apply to judges, lawyers, or both.

The second problem is more serious, for it calls into question the fundamental efficacy of section 6110(k)(3). The provision, as applied either to judges or to lawyers, was probably unconstitutional if it prevented use or citation of written determinations as persuasive, non-binding precedent. The facially simple response to this situation is to interpret the provision--or clarify the provision's language--to prohibit use or citation of written determinations as binding precedent only. (161) Yet drawing a coherent line between binding and non-binding precedent is much more difficult--and perhaps, as this Note concludes, unfeasible. Section 6110(k)(3) will not merely be made satisfactory by appending "binding" or "binding and non-binding" before the term "precedent." The provision thus adds little but confusion and the specter of unconstitutionality to a regime that already, through judicial deference doctrines, discourages courts from overemphasizing the decisional weight of written determinations.

Defining the nature of precedent is a difficult and unsatisfactory task. (162) Black's Law Dictionary provides a simple basic definition of precedent: "A decided case that furnishes a basis for determining later cases involving similar facts or issues." (163) "Precedent gives weight to prior decisions simply because they are similar to the situation at hand and because they occurred prior to it[.]" (164) However, the degree to which courts should and do follow precedent is much debated, especially with regard to constitutional cases. (165) No less controversial is the related enterprise of determining what a precedent is. (166)

For our purposes, the main point is that the concept of general precedent involves a sort of Boolean adherence to a rule or standard set forth by a previous case. As Cass Sunstein explains, a precedent may be either a rule (i.e., governing all identical cases) or an analogy (i.e., to the extent that it is at least plausibly distinguishable from the case at hand, but suggestive of a more general principle or policy that seems relevant to a case). (167) Even in the latter case of precedent as analogy, however, what emerges is still a rule or principle, albeit one whose content was determined amid controversy and not given in advance. The implicit understanding of precedent is that one has either chosen to follow it wholeheartedly--or not. This Boolean sense is present even in Black's definition of "persuasive precedent" as precedent that "a court may either follow or reject, but that is entitled to respect and careful consideration." (168) This definition of precedent has not always prevailed: in early Anglo-American common law, precedent was flexible and based on the congruence of legal decisions with expectations, reason, and judgment. In the words of Todd J. Zywicki, precedent was thus "more a tradition composed of the decisions of many independent judges acting over time, rather than the sovereign statement of a 'law-making' judge." (169) Yet, as Professor Zywicki explains, as legal positivism became more popular and the belief in a process of natural and spontaneous order waned, strict stare decisis came to supplant weaker forms of judicial precedent. (170)

Notwithstanding the modern verbal assumption that all precedents are binding, courts and commentators have added two types of non-binding precedent, which this Note will call origin-based and argument-based. (171) Origin-based non-binding precedents are used when courts give added but not controlling weight to an authority, purely because the authority originates from a special source--in this case, the Service. Argument-based non-binding precedents are persuasive not because of their origins, but because their intrinsic arguments are convincing. Generally speaking, precedent from higher courts in a jurisdiction is binding, while precedent from a court in a different jurisdiction is not binding. This discussion takes place in the context of decisions from the same court, where the court has a decision to treat a precedent as binding or non-binding.

Non-binding precedents are a cloudy concept. In Vons I, the Court of Claims insisted that the plain language meaning of the word precedent included non-binding precedent (172)--an interpretation which, as explained above, likely renders the statute unconstitutional on separation of powers and First Amendment grounds. (173) A more fundamental criticism is that the term contradicts itself: Raj Bhala has hinted that the term non-binding precedent is something of an oxymoron, as the idea of an argument-based non-binding precedent is antithetical to the fundamental principles of precedent. (174) To these criticisms this section adds a third one, which is that the line between binding and non-binding precedents is not practically workable.

As a preliminary point, the distinction between origin-based and argument-based non-binding precedent is at least overrated. Commentators such as Professors Bhala and Salmond take argument-based non-binding precedents to represent all non-binding precedents, concluding that all such precedents are accorded respect only insofar as they might be of assistance in instructing how to resolve a dispute at hand. (175) Yet argument-based non-binding precedents rely upon a possibly disingenuous foundation, for to allow a court or a lawyer to cite an interpretive argument to the Service is to imbue that interpretation automatically with a sense of added legitimacy. One might indeed question why a judge or a lawyer would choose to cite an intrinsically convincing argument to the Service, if not to give that argument additional origin-based weight. As argued above in the Buckeye II discussion, the soundness of an argument--once cited to an authority--is never truly irrelevant to its origins. (176) In short, the concept of argument-based non-binding precedent is so diluted that any such precedent is arguably an origin-based nonbinding precedent, even if in disguise.

Having concluded that all non-binding precedents are in some sense origin-based, the next step is to attempt to mark the boundary between binding and non-binding precedent. This issue is important because section 6110(k)(3), as mentioned above, can only constitutionally apply to the use of written determinations as binding precedent. (177) If such a restriction on section 6110(k)(3) cannot be made successfully, the statute becomes virtually meaningless.

The serious problem with section 6110(k)(3) is that once we have concluded that all non-binding precedents persuade the court (at least partly) through the prestige and authority of the Service, it becomes extremely difficult to separate binding from non-binding precedents. To demonstrate this difficulty, we can hypothesize an ideal world in which courts reveal the respective percentages according to which the intrinsic merit of the written determination and the authority of the Service influence the outcome of a case. It is clear that if a court allots 100% weight to the fact that the Service produced the winning position, the court has used the written determination as binding precedent. The same conclusion also seems reasonable if the Service's endorsement of a written determination goes 99% of the way toward determining the outcome of a case. At what numerical point, then, does the precedent cease to be binding? The truth is that no bright line exists, and there are many alternative ways of debating the cut-off point. For example, we may envision a case in which 49% of the decision's weight was allotted to the reasoning of two opposing sides A and B, and 2% of the weight was given to side A, purely because the Service had supported A in a written determination. In this case, a mere 2% of the decisional weight allocated to all relevant factors constitutes a deciding factor in the case. Such dilemmas plague attempts to pin down the degree of origin-based weight that one may give a written determination without violating section 6110(k)(3).

A second and more realistic problem is that the ideal world described above does not exist. In the event that we settled on the proper amount of origin-based weight that could be given to a non-binding precedent, we would have no way of knowing if a court followed this rule. The opinions of courts do not typically quantify the decision-making process in such a way, and it is not clear how accurate the results would be even if the judges attempted to do so in good faith.

In short, the use of precedent in section 6110(k)(3) is a minor disaster: because of this single troubling and elusive word, the statute can only operate without unconstitutionally crippling the arguments of lawyers and judges if it succumbs to a crushing uncertainty in application. The fundamental flaw behind section 6110(k)(3) is that it attempts to impose a bright-line rule--no items of class A may be used for purpose B--onto the fluid and intricate process of judicial reasoning. To superimpose bright lines onto a highly nuanced enterprise will only invite, to borrow Professor Ryan's themes, unfairness, unaccountability and arbitrariness. (178)


A. Solution

Given that the bright-line section 6110(k)(3) approach is too blunt for the delicate process of judicial reasoning, is there a more viable solution? To be sure, one would be hard pressed to legislate an ideal rule--one that would restrict judges from overemphasizing the authority of written determinations and thus administratively burdening the Service, while simultaneously keeping within the bounds of separation of powers and First Amendment doctrines and according judges the flexibility they require in order to make competent decisions.

Yet perhaps the problem is not in the statute, but in the legislative enterprise itself. A long list of detailed statutes and regulations may be a fine idea for governing the tax that taxpayers pay, because a key motivation behind the Code is to impose uniform standards upon the taxation of similarly situated persons. On the other hand, while standardization is a goal of taxation, it is not a principal goal of judicial decision-making. One of the hallmarks of legal reasoning is legal indeterminacy--the discretion that a judge has to choose some precedents, reject others, and generally balance the meta-norms of fairness, predictability, and reliability.

The mechanism for regulating judicial use of written determinations can be found in the common law itself--specifically, the judicial deference doctrines that are the progeny of Skidmore v. Swift & Co. (179) Under that decision, the judicial weight given to an agency interpretation of the law is determined according to the validity of its reasoning, its consistency with earlier pronouncements, its "thoroughness" of consideration, and "all those factors which give it power to persuade, if lacking power to control." (180) Service positions given Skidmore deference are therefore accorded origin-based persuasive authority; while not controlling, they are given extra weight simply because of the "specialized experience and broader investigations and information" (181) available to the Service, and "given the value of uniformity in its administrative and judicial understandings of what a national law requires." (182)

Although a higher level of judicial deference was given to some administrative interpretations under the later case Chevron v. Natural Resources Defense Council, (183) this greater judicial deference has not extended to informal guidance such as written determinations. The leading case addressing the issue of judicial deference in a tax context, National Muffler v. United States, (184) invokes a similarly high degree of serious deference to a Treasury regulation if it satisfies a multi-factor evaluation. Relevant factors include whether the regulation
 harmonizes with the plain language of the statute, its origin, and
 its purpose ... the length of time the regulation has been in effect,
 the reliance placed on it, the consistency of the Commissioner's
 interpretation, and the degree of scrutiny Congress devoted to the
 regulation during subsequent reenactments of the statute. (185)

However, the National Muffler holding has not been extended to written determinations. (186)

In Christensen v. Harris, the Supreme Court accorded Skidmore deference to an agency opinion letter, stating that "interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law" are entitled to respect to the extent that they have the "power to persuade." (187) Under the judicial deference framework, therefore, the absolute most weight that a court may give to a written determination is origin-based, persuasive authority--fortuitously, the maximum restriction that a constitutionally sound version of section 6110(k)(3) may impose. Indeed, the ABA Judicial Deference Report suggests that not even Skidmore-level deference applies to written determinations, which may be even less worthy of deference than Christensen-style opinion letters because they are directed to individual taxpayers in particular situations and are not generally applicable. (188) The level of deference due written determinations may therefore be persuasive authority, or none at all--which corresponds significantly to the range of degrees of deference accorded by actual courts under the auspices of section 6110(k)(3). While Christensen and Skidmore apply to cases where the Service relies upon a previously taken position, there is no strong reason against adapting this case law to the standard section 6110(k)(3) situation where the taxpayer is relying upon the earlier, inconsistent determination. Since the plain language of section 6110(k)(3) makes no distinction between cases where the Service attempts to cite a previous written determination and cases where the taxpayer does the same, to apply case law in the same manner would be in keeping with apparent Congressional intent.

The precise standard of deference that the courts should develop for written determinations is beyond the scope of this Note. The ABA Judicial Deference Report recommends that written determinations be used as an argument-based form of non-binding precedent, (189) but that distinction--as discussed above--is problematic. (190) Furthermore, the argument-based, non-binding precedent approach may not adequately address those situations where a court is evenly split for policy reasons between two interpretations and may wish to follow the Service's past written determination in order to promulgate meta-norms such as predictability and even non-arbitrariness.

Whatever distinction courts eventually formulate, the important thing is that the courts, and not Congress, make the rule. (191) Constitutional issues aside, a judge-made regime would be superior to a Congress-made regime in five different ways.

First, the deference rule would be made by the people in the best position to have practical knowledge about the use of deference to agency rulings--when it would be best for the court to restrain itself and apply a stricter rule, for example, and when the court would benefit from added flexibility. In this way, striking section 6110(k)(3) solidly would allow courts and lawyers to give written determinations the weight that the documents deserve as representations of the Service's valuable expertise. On a related note, this Note's solution would generally clarify the tax litigation field by imposing one regime, instead of two redundant ones, onto the interpretation of written determinations.

Secondly, the court would, through case law, be able to refine and adapt its doctrine for new and unexpected situations--a process of thoughtful, gradual but regular evolution that would be much more difficult for a legislature to plan.

Thirdly, while practitioners would initially get only marginal added predictability with respect to how judges treated written determinations, judicial doctrines would eventually evolve to produce a much more reliable and nuanced system than the present erratic and comparatively little-discussed one.

Fourthly, eliminating section 6110(k)(3) would also eliminate the separation of powers and First Amendment issues that call the statute's constitutionality into doubt.

Furthermore, the dissonance between judicial inconsistency doctrines and section 6110(k)(3) might well disappear with the statute. One speculates hopefully that this potential obstacle to proving a duty of consistency would lead to a fuller, more coherent development of that doctrine.

B. Responding to Counterpoints

1. Should the Service Be Bound to Its Informal Rulings?

An anticipated criticism of the proposal to eliminate section 6110(k)(3) is that the Service should not be bound to informal rulings that have not been subjected to notice and comment rule-making procedures. There are very good legal and policy reasons for this stance. First, as the Supreme Court has pointed out, "[t]he power of an administrative agency to administer a congressionally created ... program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress." (192) The Service's issuance of written determinations is thus part of Congress's delegation of powers to the agency.

It follows from the first point that encouraging written determinations to be used as binding precedent would cause significant interference with the Service's mission to fulfill its congressional mandate. Unlike revenue rulings and Treasury regulations, written determinations are not promulgated as generally applicable interpretations of the tax law and have not been subjected to "detailed and reasoned" consideration such as notice and comment procedures. (193) Rather, the purpose of written determinations is often administrative; they are meant to provide guidance to Service personnel in the absence of higher authority, clarify the Service's litigation position, and/or provide taxpayers with safe harbors for their transactions. Without the ability to change its position in this administrative context, the Service's infrastructure would quickly prove unable to keep up with the rapid changes in the tax law. While it is true that this interest of the Service may occasionally be balanced by a duty of consistency to taxpayers, that duty only applies in a set of narrow circumstances.

It must be emphasized, however, that such arguments are not incompatible with the theme of this Note. The position of this Note is not that the Service should be bound by written determinations, but rather that the present statute is unequal to its task. Section 6110(k)(3) is not only potentially unconstitutional, but also unworkable because of the blurry line between binding and non-binding precedent. Given these two serious problems with the statute, it is debatable whether any constitutional and practically workable statute can prevent the citation of written determinations as binding precedents while allowing their citation as non-binding precedents.

2. Burden to the Service?

One of the strongest arguments against this Note's proposal to eliminate section 6110(k)(3) is that it would burden the Service heavily. Without the safeguards of section 6110(k)(3), the argument goes, the Service would be exposed to a risk that its written determinations might be cited as precedent. The Service would therefore be burdened by the necessity of giving greater scrutiny to its rulings. The burden on the Service would trickle down to taxpayers in the form of a sharp reduction in the number of rulings issued. Indeed, this fear was the one expressed by the legislative history, as discussed in Part II.B.

The first and more practical response to this counterpoint is that the elimination of the statute would impose only a marginally increased burden on the Service, if any at all. Due to the constitutional issues discussed in Part IV.C, section 6110(k)(3) might only protect taxpayers in the case of a court citing a written determination as binding precedent--an event that has never happened. In that event, the Service would be equally vulnerable to the use of written determinations as non-binding precedent, whether or not section 6110(k)(3) existed.

Constitutional issues aside, the increased use of written determinations may actually redound to the Service's benefit, for it may reinforce the Service's litigation position by indicating the consistency with which it has been held. Indeed, if the Service conceived of litigation positions and written determinations with a sufficiently high degree of impartiality and objectivity (i.e., if the writers of written determinations made as many errors in taxpayers' favor as they did in their own favor), one can argue that the Service would benefit as much from the elimination of section 6110(k)(3) as taxpayers. The proposal to eliminate section 6110(k)(3) is thus neither inherently pro-taxpayer nor pro-Service.

Furthermore, as shown above, the extremely vague boundary between binding and non-binding precedents makes the level of Service protection, even with section 6110(k)(3), unclear. (194)

Most importantly, also as discussed above, present common law doctrines limit judicial deference to written determinations to persuasive authority only. (195) Moreover, the regulations provide another source of restraint on courts by stating that a taxpayer may not rely on an advance ruling issued to another taxpayer. (196) In short, there is nothing that a statute constitutionally could do for the Service that that judicial doctrines do not already do. At least one court has echoed the general sentiment that a broad reading of section 6110(k)(3) is unnecessary to the accomplishment of the statute's goals. (197)

The second response is more policy-based. The Service's interest in administrative ease must be balanced against several countervailing factors, some of which are implicit in the legislative history. For one thing, we may question the policy that the general public-access provision of section 6110 should not force the Service to do any additional scrutiny of its written determinations. Part of the Service's raison d'etre is to help taxpayers pay the correct amounts of tax. (Indeed, the legislative history shows that section 6110 was enacted in large part, as discussed above, to combat the encroachment of secret law onto the legal system. (198)) The public release of written determinations should, if anything, prompt the Service to review the written determinations more carefully.

There is, of course, a possibility that the Service--faced with the growing legal importance of written determinations and the attendant need for heightened scrutiny--would then decline to issue written determinations altogether, or issue them at a vastly reduced rate. Assuming arguendo the controversial notion that a case law approach would attach more importance to written determinations than the present statutory approach, the likelihood of such a development is still hazy. Even given the need for higher scrutiny, however, it would still be in the Service's interest to continue issuing some basic number of PLRs: the more taxpayer uncertainty about the tax law, the more tax infractions will sap the Service's limited resources. There is also significant administrative value, especially considering these limited agency resources, in a mechanism that prioritizes targeting some taxpayers for litigation over others: a PLR system enables the Service, in a very rough way, to distinguish between relatively well-intentioned but misinformed taxpayers and more aggressive attitudes of tax avoidance. The legislative history itself, even though it may hint at a tradeoff between consistency and timeliness, does not give the precise balance between the two. It is highly unlikely, for example, that Congress envisioned a 100% tradeoff: taxpayers today must still wait for some period of time before receiving their PLRs, and the Service must subject these PLRs to some core level of review.

The judiciary also has an important decision-making interest in being able to cite the authority of the Service in its decisions. As an agency, the Service commands enormous amounts of tax-oriented legal resources that are not immediately available to most courts. This experience is not insignificant: the Office of Chief Counsel received 91,329 cases in 2002 and closed 88,331. (199) At the time of writing, it employs approximately 1500 lawyers in both the National Office and the field. (200) While a court should do its utmost to understand tax problems on its own, it should also harness the authoritative power of the internal judgments made by a body of skilled tax lawyers. Indeed, the previous sections show that the vast majority of courts--section 6110(k)(3) notwithstanding--have done so; this group includes the Supreme Court. (201) The Service provides not only insights that are valuable in and of themselves, but also rightfully reinforces the courts' decisions through the authority of its comparative wealth of expertise. The weight of such knowledge must not always be absolute, but must be adjusted in a holistic manner amid the other relevant factors in the tax case.

Nor should a court be prevented from binding itself in certain narrowly defined situations to written determinations, for the sake of such meta-norms as predictability and reliability. Similar meta-norms, to some degree, informed the IBM-type duty of consistency cases. There is no strong policy reason for why the interest of courts and taxpayers in such meta-norms should always be subordinated to the Service's administrative concerns.

One can also plausibly argue that a rule prohibiting the court from using written precedents as non-binding authority does not represent a legitimate legislative policy. In the binding authority case, the Service would have been additionally burdened by the use of written determinations as binding precedent because taxpayers hitherto had not been allowed to rely on them. However, if courts were to use written determinations as non-binding precedent, they would merely be using the written determinations in the same way that Congress--through the public availability of written determinations under section 6110--encourages taxpayers to use written determinations. It seems somewhat disingenuous for the legislature to claim that a certain level of agency scrutiny is needed in order for the written determinations to be considered by the courts, but not so for taxpayers seeking guidance regarding their transactions.

In a similar vein, Lawrence Zelenak has also pointed out that the Service--both before and after the enactment of section 6110(k)(3)--has consistently used written determinations as a form of internal precedent. (202) The Service maintains an indexed reference file for PLRs deemed to have "significant future reference value because of the issues involved." (203) The system is designed to ensure that the Service follows, distinguishes, or renounces its earlier rulings. Although there are obvious important differences between the maintenance of internal consistency and the system of judicial precedent, the presence of the filing system nonetheless suggests that the Service itself subjects written determinations to the arguably precedential ideals of predictability and consistency. Furthermore, the fact that the Service's bureaucratic structure already scrutinizes its informal rulings for these qualities suggests that any additional examination needed, in the event that the written determinations became potential factors in judicial decisions, would not produce an insurmountably more severe administrative burden.

The third defense of the proposal to remove section 6110(k)(3) is that it is simply too outdated to accomplish its original objectives alongside the current tax law. That the statute was enacted in 1976 may explain many of the problematic relationships between the statute and present law. Section 6110(k)(3) was enacted years before the major doctrines of judicial deference were developed in Chevron, Christensen, and National Muffler. In 1976, the First Amendment question had yet not come up because Legal Services v. Velazquez (204) had not been decided; nor had commentators, inspired by the prospect of a Roe v. Wade (205) reexamination by a conservative majority, (206) explored separation of powers issues in as great detail.

Most importantly, we must remember that the infrastructure of the Service and the face of the PLR program were drastically different in 1976. The tax law was significantly different. (207) Partly because of one commentator's remark that "[the tax law is] not going to get any simpler.... Every time you add a function to a body of law, it necessarily gets more complex," (208) the tax law has become increasingly intricate over the past quarter-century. The preface of a major tax treatise describes a "tidal wave" in the last twenty years that spurred a change in "not only the details, but [also] the general principles, of income taxation." (209) In the years between the Tax Reform Act of 1986 until the end of 2000, Congress enacted nearly 100 different laws amending the Code, not counting legislation affecting Social Security, railroad retirement, unemployment compensation, tariffs or customs duties, or the public debt limit. (210) The Code's alterations have not always been clear: courts decided tens of thousands of tax cases in the same period. (211)

While this complexity may cut in favor of expediting access to rulings, it is also clear that it makes the value of ruling consistency all the more urgent. Given the important changes in the increasingly complicated tax system since the 1970s, the 1976 legislature perhaps did not fully predict the practical importance that written determinations would assume in the face of the tax system's growing complexity over the next three decades. The courts, unlike the legislature, have had to deal with this evolving reality. Their testament is the erratic body of section 6110(k)(3) case law that exists today.

3. Legal Instability

One major counterargument against the proposed solution is that it may perpetuate further instability in judicial treatment of written determinations. On the contrary, the elimination of an ineffectual and bright-line rule would enhance predictability in the long run. In the absence of the statute, the courts would no doubt quickly formulate more coherent and nuanced deference rules for written determinations. While this approach by no means provides a bright line for practitioners, it is at least an improvement over an existing system which confusingly pretends to do so--yet does not.

Although case law in this area is still extremely sketchy at this time, this vagueness is due in part to the very restrictions of section 6110(k)(3). Indeed, the removal of section 6110(k)(3) would likely clarify judicial deference doctrines: the court in Stichting, (212) as well as the writers of the ABA Judicial Deference Report, both assumed without explanation a "total rejection" approach to section 6110(k)(3) in order to advance (in a circular manner) their respective interpretations of the unfairness doctrine and judicial deference to agency decisions. (213)

4. Responses to Alternatives

Professor Zelenak has hinted that perhaps section 6110(k)(3) should be rewritten or reinterpreted to mean that "[w]hen the report refers to use of rulings as precedent, it must mean protected reliance on rulings by taxpayers other than recipients, and nothing else." (214)

However, there is concern that the language of "no-reliance" is potentially overinclusive because it might hinder the development, or even the continued application, of a duty of fairness. Although Professor Zelenak sees a strong distinction between relying on a written determination and suing the Service under a duty of consistency, whether courts will see matters the same way is unclear. There is at least a plausible argument that reliance refers not only to a taxpayer in the tax planning stage attaching an excessive amount of confidence to another taxpayer's ruling, but also to the taxpayer's staking an inconsistency claim on the same basis. After all, one major meaning of rely is to "depend on a person or thing with full trust or confidence; to rest upon with assurance." (215) The Oxford English Dictionary goes on to add that relying can be "with reference to facts or statements." (216) In this respect, the "no-reliance" language may prove even more restrictive than the present "no-precedent" language of section 6110(k)(3).

Furthermore, there is little significant need for the additional safeguard of no-reliance language. As mentioned above, the present judicial doctrines regarding deference clearly do not encourage courts and parties to rely on written determinations, except perhaps in duty of fairness situations. (217) In addition, the no-reliance language is already in the regulations and subject to a significant level of judicial deference. (218) Because National Muffler and Skidmore have suggested that the degree of deference due to regulations is partly dependent on the evolution of the regulation and the consistency of its interpretation, there is good reason to believe that Code section 601.201(1)(1) would provide an adequate safeguard against judicial overemphasis of written determinations while allowing the duty of consistency to continue its development.

A second alternative would be to reinterpret section 6110(k)(3)--either through statutory amendment, a Treasury regulation, or case law--to apply to lawyers and not judges. After all, in this regard the First Amendment issues are somewhat more attenuated for lawyers than the separation of powers issues are for judges. The problem with this solution is that, by barring the lawyers from presenting the written determinations to judges, it would functionally produce the same result as the application of section 6110(k)(3) to judges. In addition, the application of section 6110(k)(3) to lawyers contains the same policy difficulties that would appear if the statute covered judges: unpredictability as to sanctions, possible heightened arbitrariness in decision-making on the part of the judge, and the general difficulty of applying a bright-line rule to what is an essentially spectrum-framed problem.

The removal of section 6110(k)(3) from the Code would benefit the legal system greatly. The decision whether to give heightened deference to written determinations should be ultimately a judicial one. While certain safeguards can and perhaps should be legislated (e.g., taxpayers cannot rely on written determinations), there is a clear limit to how far the legislature can practicably control the courts. Constitutional claims aside, the legal system as a whole has a practical interest in allowing the court to handle the nuances of its decision-making. If we have learned nothing else from section 6110(k)(3), it should be that attempts to codify the fluid, intricate, and holistic manner in which judicial decisions are made inevitably become overly rigid or incomprehensible.

(1) I.R.C. [section] 6110(k)(3) ("Precedential status. Unless the Secretary otherwise establishes by regulations, a written determination may not be used or cited as precedent. The preceding sentence shall not apply to change the precedential status (if any) of written determinations with regard to taxes imposed by subtitle D of this title."). The significance of the excise tax exception to the statute is beyond the scope of this Note. Section 6110(k)(3) appears in earlier versions of the Code as section 6110(j)(3), and sources referring to section 6110(j)(3) have been edited accordingly.

(2) See, e.g., FEDERAL INCOME TAX: CODE AND REGULATIONS, SELECTED SECTIONS (Martin B. Dickinson ed., 2004-2005 ed., CCH).

(3) Section 6110(k)(3) is often cited towards the ends of written determinations. See, e.g., Priv. Ltr. Rul. 200445043 (Aug. 10, 2004). The Service's website also cites section 6110(k)(3). INTERNAL REVENUE SERVICE, IRS WRITTEN DETERMINATIONS, at,,id=97705,00.html (last visited Feb. 7, 2004).

(4) See infra Part III.

(5) Irving Salem et al., ABA Section of Taxation Report of the Task Force on Judicial Deference, 104 TAX NOTES 1231, 1246 (Sept. 13, 2004) [hereinafter ABA Judicial Deference Report].

(6) Id. at 1247.

(7) 5 U.S.C. [section] 552(a)(2)(B) (2005) ("Each agency, in accordance with published rules, shall make available for public inspection and copying ... those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register...."); see also infra note 37 and accompanying text, detailing the application of FOIA to written determinations under case law.

(8) I.R.C. [section] 6110(a).

(9) Id. at 1233 n.9.

(10) A manual count of written determinations is posted on the Service's website. INTERNAL REVENUE SERVICE, supra note 3.

(11) See ABA Judicial Deference Report, supra note 5, at 1233 ("Certainty regarding tax rules is particularly important when so many citizens must comply and file returns that are consistent with them. To aid taxpayers, the IRS issues a staggering array of guidance documents, and does so in large numbers.").

(12) See infra Part IV.B.

(13) Id.

(14) See infra Part IV.C.1.

(15) See infra Part IV.B.

(16) See infra Part IV.D.

(17) I.R.C. [section] 6110(b)(1)(A).

(18) LISA MARIE STARCZEWSKI, PORTFOLIO 621: IRS NATIONAL OFFICE PROCEDURES--RULINGS, CLOSING AGREEMENTS A-11 (2d ed., BNA Tax Management 2004) [hereinafter BNA 621 NATIONAL OFFICE PROCEDURES]; see also Peerless Corp. v. United States, 185 F.3d 922, 924 (8th Cir. 1999) ("The private letter ruling further provides, in accordance with Internal Revenue Code [section] 6110[(k)](3), that 'this ruling is directed only to the taxpayer who requested it.'") (emphasis added).

(19) Treas. Reg. [section] 601.201(a)(2) (as amended in 2002) ("A ruling is a written statement issued to a taxpayer or his authorized representative by the National Office which interprets and applies the tax laws to a specific set of facts. Rulings are issued only by the National Office.").

(20) Rev. Proc. 2004-1, [section] 11.01, 2004-1 I.R.B. 45 ("A taxpayer ordinarily may rely on a letter ruling ... subject to the conditions and limitations described in this section"); see also Treas. Reg. [section] 601.201(1)(5) (as amended in 2002) (taxpayer's individually received PLR generally will not be revoked or modified retroactively if, among other factors, "the taxpayer directly involved in the ruling acted in good faith in reliance upon the ruling and the retroactive revocation would be to his detriment"). But see Rev. Proc. 2004-1, [section] 11.02, 2004-1 I.R.B. 45 (citing section 6110(k)(3) for the proposition that a taxpayer "may not rely" on a letter ruling issued to another taxpayer).

(21) For more on the subject of revocation, see Rev. Proc. 2004-1, [section] 11.04, 2004-1 I.R.B. 46; BNA 621 NATIONAL OFFICE PROCEDURES, supra note 18, at A-26.

(22) See Stover v. Commissioner, 48 T.C.M. (CCH) 1400, 1402 n.2 (1984), aff'd, 781 F.2d 137 (8th Cir. 1986) ("Revenue rulings and private letter rulings have no precedential value. Sec. 6110[(k)](3).").

(23) Treas. Reg. [section] 601.201(a)(2) (as amended in 2002).

(24) Treas. Reg. [section] 601.201(a)(6) (as amended in 2002).

(25) The issuance of determination letters and technical advice memoranda (TAMs), infra, is handled within the National Office by the "Associate office" components of the Office of Chief Counsel. Each Associate office, or "Office of Associate Chief Counsel," specializes in a particular field: Corporate, Financial Institutions and Products, Income Tax and Accounting, International, Passthroughs and Special Industries, Procedure and Administration, and Tax Exempt and Government Entities (handled by the "Office of Division Counsel/Associate Chief Counsel"). Rev. Proc. 2004-1, [section] 1, 2004-1 I.R.B. 5.

(26) Id. [section] 2.03, at 5.

(27) See supra note 25 (explaining the term "Associate office").

(28) Rev. Proc. 2004-2, [section] 3, 2004-1 I.R.B. 87

(29) Id.

(30) Id.

(31) I.R.C. [section] 6110(i)(1)(A).

(32) See H.R. REP. NO. 105-599, at 300 (1998).

(33) Id.

 It has been argued that the private ruling system developed into a
 body of law known only to a few members of the tax profession. For
 example, an accounting or law firm with offices in Washington could
 have a library of all the private ruling letters issued to its
 clients. Such a firm was in a position to advise other clients as to
 the current IRS ruling position because of its special access to
 these rules of law. This, in turn, tended to reduce public
 confidence in the tax laws. Additionally, the secrecy surrounding
 letter rulings generated suspicion that the tax laws were not being
 applied on an evenhanded basis.

(35) Section 6110 reads, in relevant part:
(a) General rule. Except as otherwise provided in this section, the text
of any written determination and any background file document relating
to such written determination shall be open to public inspection at such
place as the Secretary may by regulations prescribe....

(b)(1) Written determination ... The term "written determination" means
a ruling, determination letter, or technical advice memorandum, or Chief
Counsel advice....

(b)(2) Background file document. The term "background file document"
with respect to a written determination includes the request for that
written determination, any written material submitted in support of the
request, and any communication (written or otherwise) between the
Internal Revenue Service and persons outside the Internal Revenue
Service in connection with such written determination.

I.R.C. [section] 6110(a), (b)(1), (b)(2).

(36) GENERAL EXPLANATION OF THE TAX REFORM ACT OF 1976, supra note 34, at 301. Furthermore, even under the pre-1976 regime, a taxpayer could not use another taxpayer's precedent in his own case. Id.

(37) See Fruehauf Corp. v. Internal Revenue Serv., 522 F.2d 284 (6th Cir. 1975), vacated on other grounds, 429 U.S. 1085 (1977); Tax Analysts & Advocates v. Internal Revenue Serv., 505 F.2d 350 (D.C. Cir. 1974).

(38) I.R.C. [section] 6110(m) ("Except as otherwise provided in this title, or with respect to a discovery order made in connection with a judicial proceeding," section 6110 provides the exclusive remedy for those seeking to compel the Secretary to make written determinations open or available to public inspection.); see also Grenier v. Internal Revenue Serv., 449 F. Supp. 834, 839 (D. Md. 1978) (Section 6110 was at least partly motivated by Congress's intent to displace the FOIA as the means of access to unpublished Service rulings.).

(39) GENERAL EXPLANATION OF THE TAX REFORM ACT OF 1976, supra note 34, at 303.

(40) Id. "These questions concerned the parts of a ruling file that should be published ... what procedures should be established to allow taxpayers to claim that protected material should not be disclosed, etc." Id. The safeguards are detailed in section 6110(c). I.R.C. [section] 6110(c).

(41) GENERAL EXPLANATION OF THE TAX REFORM ACT OF 1976, supra note 34, at 309 (emphasis added).

(42) Id. at 303.

(43) BNA 621 NATIONAL OFFICE PROCEDURES, supra note 18, at A-42.

(44) Fox Valley & Vicinity Constr. Workers Pension Fund v. Brown, 897 F.2d 275, 280 n.2 (7th Cir. 1990).

(45) See Riverton Inv. Corp. v. United States, 86-2 U.S.T.C. [paragraph] 5525 (W.D. Va. 2000) (stating that the Fox Valley court "refused even to consider" the PLR on section 6110(k)(3) grounds).

(46) See Blue Cross & Blue Shield of Tex., Inc. v. Commissioner, 328 F.3d 770, 781 (5th Cir. 2003) (refusing, on section 6110(k)(3) grounds, to consider a TAM offered by a taxpayer, without disputing the taxpayer's claim that the TAM supported its position and addressed the issue directly).

(47) See Liberty Nat'l Bank & Trust Co. v. United States, 867 F.2d 302, 304-05 (6th Cir. 1989) (acknowledging that two taxpayer-offered PLRs had "language similar to decedent's marital bequest," but refusing, on section 6110(k)(3) grounds, to consider the rulings).

(48) See Lucky Stores v. Commissioner, 153 F.3d 964, 966-67 (9th Cir. 1998) (stating that "[t]axpayers other than those to whom such rulings or memoranda were issued are not entitled to rely on them" and refraining from further discussion of the taxpayer-offered PLRs in question); see also Riverton Inv. Corp., 86-2 U.S.T.C. at [paragraph] 5525 (stating that the Lucky Stores court refused to consider the private rulings on section 6110(k)(3) grounds).

(49) See Am. Stores Co. v. Commissioner, 170 F.3d 1267, 1270 (10th Cir. 1999) (explicitly declining, on section 6110(k)(3) grounds, to consider taxpayer-offered rulings and memoranda in evaluating the legal arguments of the parties).

(50) See Vons Cos. v. United States, 51 Fed. Cl. 1, 23 (2001) [hereinafter Vons I], summary judgment granted by Vons Cos. v. United States, 55 Fed. Cl. 709 (2003) [hereinafter Vons II]. In the course of discovery, the taxpayer requested various internal Service materials relating to PLRs that the Service had issued. Id. The taxpayer's motion to compel was denied on section 6110(k)(3) grounds. Id. Because the statute flatly "[prohibits] the use or citation of private letter rulings," the court "may not consider the substance of such rulings in construing the Code." Id. Therefore, the Federal Circuit reasoned in Vons I, internal Service materials relating to such rulings were also irrelevant to the issues before the court. Id.

(51) See, e.g., Fla. Power & Light Co. v. United States, 56 Fed. Cl. 328, 332 (2003) (PLRs issued to one taxpayer have no precedential value for other taxpayers under section 6110(k)(3) and thus are "irrelevant in the context of litigation brought by other taxpayers"); Hennessy v. United States, 81-2 U.S.T.C. [paragraph] 319 n.2 (S.D. Ind. 1997) (stating that PLRs cannot be cited as precedent and "cannot be used in the resolution of this case"); Erwin v. United States, 61-2 U.S.T.C. [paragraph] 148,924 (W.D. Tex. 1988) (stating the PLRs are "without precedential value and unpersuasive"); Hawkins v. United States, 544 F. Supp. 39, 41 n.2 (S.D. Ohio 1982) (stating on section 6110(k)(3) grounds that a taxpayer-offered PLR has "no impact on the case herein").

(52) See Ellison v. Commissioner, 57 T.C.M. (RIA) 389, 396 (2004) (refraining from considering Chief Counsel advice offered by taxpayer to support an argument because "[p]arties are statutorily proscribed from citing chief counsel advice as precedent" under section 6110(k)(3)); Bartak v. Commissioner, 87 T.C.M. (CCH) 1152 (2004) (similar position as in Ellison); Polone v. Commissioner, 339 T.C.M. (RIA) 1943, 1962 n.26 (2003) (refraining from considering PLRs offered by taxpayer to support an argument because "[p]arties are statutorily proscribed from citing PLRs as precedent" under section 6110(k)(3)); Allen v. Commissioner, 118 T.C. 1, 17 n.12 (2002) (affording a TAM "little weight in this Court"); Union Carbide Foreign Sales Corp. v. Commissioner, 115 T.C. 423, 438 n.20 (2000) (giving "no weight" to taxpayer-offered PLR and FSA because they were "statutorily of no precedential value" under section 6110(k)(3)).

(53) The definition of precedent is discussed infra Part IV.D.

(54) Estate of Clack v. Commissioner, 106 T.C. 131, 151 n.2 (1996) (stating that the practice of giving the Commissioner's position less deference due to its previous holding of an inconsistent position "erodes the statutory prohibition of sec. 6110[(k)](3) on the use or citation of private rulings as precedent" and expressing concern that "such use will have a stultifying effect on the private rulings process").

(55) Stichting Pensioenfonds Voor de Gezondheid v. United States, 950 F. Supp. 373 (D.D.C. 1996).

(56) Id. at 380-81. The Stichting court stated that section 6110(k)(3) was a codification of two Court of Claims decisions which held that a taxpayer who relied upon a private letter ruling issued to another taxpayer was not entitled to relief from the Commissioner's decision to revoke those rulings retroactively. See Knetsch v. United States, 345 F.2d 932 (Ct. Cl. 1965), cert. denied, 383 U.S. 957 (1966); Bornstein v. United States, 345 F.2d 558 (Ct. Cl. 1965). Under this interpretation, section 6110(k)(3) is a rejection not only of written determinations' precedential status, but also of a distinct idea that the Service has a duty of consistency. For more on the duty of consistency and its relation to the section 6110(k)(3) issue, see infra Part IV.B.

(57) Vons II, 55 Fed. Cl. 709, 719 (2003).

(58) Id. at 718 n.18.

(59) Hill v. United States, 945 F.2d 1529, 1538 (Fed. Cir. 1991) [hereinafter Hill I] (finding taxpayer-offered TAM "instructive" on the question of the contested definition of "adjusted basis," and adopting the TAM's definition in part because the taxpayer "is entitled to such consistency in definition"), rev'd, United States v. Hill, 506 U.S. 546 (1993) [hereinafter Hill II].

(60) Hill II, 506 U.S. at 564 n.12.

(61) Vons I, 51 Fed Cl. 1, 11 (2001) (stating that Hill II "eschew[ed] any reliance on the same memorandum" on section 6110(k)(3) grounds and was consistent with those cases that had refused to afford PLRs and TAMs "any precedential weight").

(62) Hill II, 506 U.S. at 564 n.12.

(63) See infra Parts III.B, C (discussing subsequent cases).

(64) See, e.g., Young v. Commissioner, 240 F.3d 369, 375 (4th Cir. 2001); Fla. Power & Light Co. v. United States, 56 Fed. Cl. 328, 332 (2003); Churchill Downs, Inc. v. Commissioner, 115 T.C. 279, 287 (2000); Stover v. Commissioner, 48 T.C.M. (CCH) 1400, 1402 n.2 (1984).

(65) See supra Part III.A.

(66) 535 U.S. 274 (2002). The Court stated:
 [The] consensus [by most federal courts, that a federal tax lien
 cannot attach to property held in tenancy by the entirety to satisfy
 an individual spouse's tax liability] is supported by the IRS'
 consistent recognition, arguably against its own interest, that a
 federal tax lien against one spouse cannot attach to property or
 rights to property held as a tenancy by the entirety.

Id. The Court represented the Service's consistent recognition by citing, among other sources, a Chief Counsel advisory and two litigation bulletins. Id. at 300 n.9. Chief Counsel advisories and litigation bulletins are written determinations. I.R.C. [section] 6110(i)(1)(A).

(67) See Gen. Elec. Co. v. Commissioner, 245 F.3d 149, 157 (2d Cir. 2001) (using a PLR's treatment of engines and airframes as separate and discrete products in one context to support the holding that engines and airframes were physically separate and distinct from one another in a different context).

(68) See Estate of Monroe v. Commissioner, 124 F.3d 699, 707 (5th Cir. 1997) (citing three PLRs, quoting extensively from two, to support taxpayer's position that disclaimers under section 2518 were recognized even where disclaimants clearly expected that executing disclaimers would benefit them in the long run).

(69) See Benefits Comm. of Saint-Gobain Corp. v. Key Trust Co., 313 F.3d 919, 927-29 (6th Cir. 2002). A benefit plan administrator claimed that the trustee's repayment of the loan would cause it to violate fiduciary obligations required by the Employee Retirement Income Security Act of 1974 (ERISA). Id. In the course of finding that nothing in the benefit plan agreements prohibited the trustee from repaying the loan, the court cited PLRs pertaining to the application of parallel Code provisions to ERISA in an analogous situation and concluded on the basis of those PLRs that "the repayment of an exempt loan in a way not legally obligated does not adversely effect the benefits of participants and beneficiaries of the plan." Id. at 928.

(70) See United States v. Szopa, 2000-1 U.S.T.C. [paragraph] 50,284 (7th Cir. 2000). The taxpayers claimed that their taxes were deemed paid when Service authorized their refunds by executing a stipulation. Id. In holding that taxes were instead paid when a refund or credit was deemed allowed, the court cited a PLR for "further guidance" that confirmed its holding for the Service. Id.

(71) See Estate of Smith v. Commissioner, 123 T.C. 15, 18-22 (2004) (citing two FSAs against the Service to show that interest must be treated as tax in overpayment proceedings, but not deficiency proceedings; citing FSA against the Service as "echoing" the proposition that the amount of any interest paid with respect to the deficiency is also an overpayment); Milner v. Commissioner, 85 T.C.M. (RIA) 708, 710 (2004) ("We find no authority in the Code, the legislative history, caselaw, or Internal Revenue Service notices and private letter rulings that would provide for what would amount to an umbrella hardship exception") (emphasis added); Michaels v. Commissioner, 69 T.C.M. (CCH) 3056, 3059 (1995) (finding that PLRs, along with case law, provided "legal basis" for deductions).

(72) See, e.g., Trotter v. Perdue Farms, Inc., 253 F. Supp. 2d 812, 817-18 (D. Del. 2003) (citing analogous PLR to support holding that once a settlement agreement in a class action lawsuit specifically allocates payments based on economic factors, the entire payment constitutes wages subject to withholding taxes); Int'l Bank for Reconstr. & Dev. v. District of Columbia, 966 F. Supp. 31, 35-36 (D.D.C. 1998) (citing two PLRs, dealing with analogous situations, to support the holding that third parties are exempt from tax liability for transactions with or on behalf of the World Bank).

(73) See Deluxe Corp. v. United States, 885 F.2d 848, 852-53 (Fed. Cir. 1989) (stating "[i]ndeed, the private letter rulings cited by the [taxpayer], although not relied upon in our conclusion, are in accord with our view, and illustrate the Treasury's administration of the statute in a manner less rigorous than that here pressed").

(74) See Harbison v. United States, 2000-2 U.S.T.C. [paragraph] 60,389 (N.D. Ga. 2000) (citing several PLRs to support the holding that the taxpayer should receive a refund from charitable deductions despite a transfer of funds to the income beneficiary before the income beneficiary died).

(75) See Adobe Res. Corp. v. United States, 975 F.2d 1119, 1119 (5th Cir. 1992).
 We recognize of course that private letter ruling 8901011 cited by
 appellee in its response could not be cited as authority for our
 original decision [because of section 6110(k)(3)]; and that letter
 ruling is not referred to in any way in our opinion. We draw some
 comfort, however, from noting the similarity of analysis and
 reasoning used in the letter ruling and in our original opinion.


(76) In re Federated Dep't Stores, Inc., 135 B.R. 950, 960 n.2 (Bankr. S.D. Ohio 1992).
 The IRS made much of the impropriety of citing to a Technical Advice
 Memorandum as precedent. The Court specifically asked the IRS to
 address the issue of the basis for the apparent change in the IRS
 position regarding the deductibility of expenses incurred in
 connection with abandoned capital transactions. No explanation was
 forthcoming and the Court confesses some degree of astonishment at
 the IRS' insistence that we cannot look to prior IRS conduct in this

Id. (citation omitted).

(77) See Shaev v. Saper, 320 F.3d 373, 381 n.5 (3d Cir. 2003) (although a private letter ruling may not be cited as precedent under section 6110(k)(3), it may be deemed "instructive"); Thom v. United States, 283 F. 3d 939, 943 n.6 (8th Cir. 2002) (citing a PLR for its consistency with the court's holding: "Although private letter rulings have no precedential value and do not in any way bind this court [under section 6110(k)(3)], we believe they are an instructive tool that we have at our disposal."); United States v. Heilig-Meyers Co., 2003-1 U.S.T.C. [paragraph] 50,287 (E.D. Va. 2003) (citing Chief Counsel advice to support holding that filing a proof of claim in a bankruptcy case is not a substitute for an assessment or a statutory notice of deficiency: "While Chief Counsel Advice reports have no precedential value, they are instructive as to the legal advice given to field personnel to promote correct and uniform application of tax law."); McKnight v. Commissioner, 58 T.C.M. (CCH) 1390, 1393 (1990) (citing a taxpayer-offered TAM to support holding that taxpayer was entitled to a full year's worth of depreciation recovery: "We are aware that technical advice memoranda have no precedential value and should not be cited as authority. Sec. 6110[(k)](3). We may, however, in the absence of authority to the contrary, accept the reasoning of a technical advice memorandum as persuasive."); see also Buckeye Power, Inc. v. United States, 38 Fed. Cl. 283 (1997) [hereinafter Buckeye II], denying motion to revise 38 Fed. Cl. 154 (1997) [hereinafter Buckeye I]. The Service unsuccessfully filed a motion to revise the court's opinion on the grounds that the Buckeye II court had quoted a TAM to support the taxpayer's position. Id. at 284. The court explained that it had not interpreted the TAM as binding the Service and that the taxpayer's position had been "independently viable," explaining: "the mere fact that TAMs are not binding on the IRS does not insulate the IRS from persuasive reasoning contained in prior decisions. Stated differently, strong analytical reasoning does not lose its persuasive force simply because the reasoning does not bind the IRS or constitute authority to be cited in judicial opinions." Id. at 286. It is not clear if Buckeye II restricts the use of TAMs to cases where (a) the TAMs are independently viable and/or (b) the court merely quotes TAMs for their reasoning without giving any decisional weight to their TAM status.

(78) See infra Part IV.D.

(79) See supra note 77 (discussing Shaev and Thom); see also United States v. Egypt Planting Co., 72 A.F.T.R.2d (RIA) 6043, 6044 (N.D. Miss. 1993) (the court declared itself "persuaded to mention" a PLR to support its holding, while recognizing the PLR's "limited precedential value") (emphasis added).

(80) See supra note 74 (discussing Harbison); supra note 77 (discussing Buckeye II).

(81) Hanover Bank v. Commissioner, 369 U.S. 672, 686 (1962).

(82) See, e.g., Ogiony v. Commissioner, 617 F.2d 14, 17 (2d Cir. 1980) (Oakes, J., concurring); Estate of Reddert v. United States, 925 F. Supp. 261, 267-68 (D. N.J. 1996); Nat'l Right to Work Legal Def. & Educ. Found., Inc., v. United States, 487 F. Supp. 801, 805 (E.D.N.C. 1979); Callis-Thompson, Inc. v. United States, 80-1 U.S.T.C. (CCH) [paragraph] 16,335 (D. Del. 1980).

(83) See Wells Fargo & Co. v. Commissioner, 224 F.3d 874, 886 (8th Cir. 2000) (citing TAMs to support the court's application of the "origin of the claim doctrine" and stating that although the TAMs have no precedential value, under Hanover they do "reveal the interpretation put upon the statute by the agency charged with the responsibility of administering the revenue laws" and "may provide evidence of the proper construction of the statute") (emphasis added); True Oil Co. v. Commissioner, 170 F.3d 1294, 1302-03 (10th Cir. 1999); Comerica Bank v. United States, 93 F.3d 225, 230 (6th Cir. 1996) (citing a PLR, along with other sources, as "weigh[ing] in favor of" the court's holding, and stating that "[w]hile [p]rivate letter rulings are not binding authority, they may be cited as evidence of administrative interpretation"); Wolpaw v. Commissioner, 47 F.3d 787, 792 (6th Cir. 1995) (acknowledging that while a PLR was not binding precedent, in the absence of any Treasury regulations directly on point regarding the exclusion of tuition waivers from gross income, the PLR constituted "evidence" that the Service applied the same rule that the court's holding did); United States v. Wis. Power & Light Co., 38 F.3d 329, 335 (7th Cir. 1994) (stating that while "this Court typically does not consider arguments which cite technical advice memoranda as precedent," it has previously cited TAMs as "evidence of administrative practice, not as authoritative interpretations of the Code"); Harco Holdings, Inc. v. United States, 977 F.2d 1027, 1035 & n.13 (7th Cir. 1992) (citing PLRs "only as evidence of administrative practice, not as authoritative interpretations of [the Code]" but also stating that there was "sufficient ambiguity in the statute and the regulations that we might defer to the Service's interpretation anyway"); Fla. Residential Prop. & Cas. Joint Underwriting Ass'n v. United States, 207 F. Supp. 2d 1344, 1352-53 (N.D. Fla. 2002) (citing analogous PLRs to support holding that the taxpayer was "an integral part of the State" while stating that the PLRs, though not controlling, were "indicative of the IRS's position").

(84) 452 U.S. 247, 263 (1981).

(85) Id. at 262 n. 17.

(86) Vons I, 51 Fed. Cl. 1, 11 (2001).

(87) See Intermet Corp. v. Commissioner, 209 F.3d 901, 908 (6th Cir. 2000) (citing discrepancies between a TAM and the Service's litigation position and concluding that the Service's "shifting and incongruous reasoning" highlighted the fundamental inability of its litigation position to comport with the Code and regulations); Phi Delta Theta Fraternity v. Commissioner, 887 F.2d 1302, 1308 (6th Cir. 1989) ("Although private letter rulings are helpful in determining the contours of tax statutes and may be considered when evaluating the consistency of application of statutes, such letter rulings have no precedential effect.") (emphasis added); Capital Blue Cross v. Commissioner, 122 T.C. 224, 237 n.8 (2004) (citing TAM and FSA to show that the Service's position contradicted its own legal advice memoranda).

(88) See Estate of Spencer v. Commissioner, 43 F.3d 226, 234 (6th Cir. 1995) (citing a PLR adverse to the Service's position to highlight "the confusion this section has engendered at the IRS" and stating that the Service's "about face ... makes us even more reluctant to adopt their interpretation of this statute without an understandable articulation of a tax policy supporting it"); Transco Exploration Co. v. Commissioner, 949 F.2d 837, 840 (5th Cir. 1992) (finding a taxpayer-favorable PLR to be a "significant indication" that taxpayer acted properly and apparently holding the Service to a higher standard of legal argument because of the inconsistency between the PLR and its litigation position: "Although the Commissioner is entitled to change his mind, he ought to do more than stride to the dais and simply argue in the opposite direction."); Syufy v. United States, 818 F.2d 1457, 1461 n.4 (9th Cir. 1987) (rejecting the Service's claim that its position was supported by the "plain language" of the Code, on the grounds that the Service had taken an opposite position in releases over "many years," including in a 1954 PLR); Wheeler v. United States, 77 A.F.T.R.2d (RIA) 1405, 1409 (W.D. Tex. 1995) (stating that courts have considered private letter rulings to show confusion in the interpretation of a statute within the Service).

(89) 343 F.2d 914 (Ct. Cl. 1965) [hereinafter IBM], cert. denied, 382 U.S. 1028 (1966). IBM and its direct business competitor, Remington Rand, requested excise tax rulings at roughly the same time. IBM, 343 F.2d at 916. Remington received the ruling, while the Service failed to act on IBM's request. Id. After two years, the Service denied IBM's ruling and revoked Remington's ruling, but only prospectively. Id. at 916-17. Based on Code section 7805(b), which gives the Service discretion to prescribe whether rulings and regulations are to be applied retroactively, the court held that the Service had abused its statutory discretion: "For all tax rulings, it is important that there be like treatment to those who should be dealt with on the same basis." Id. at 923. Since section 6110(k)(3) does not apply to the precedential status of written determinations addressing excise tax liability, the holding of IBM does not directly present a section 6110(k)(3) issue. However, IBM has inspired progeny in situations where the main dispute did not involve an excise tax issue. See, e.g., United States v. Kaiser, 363 U.S. 299, 308 (1960) (Frankfurter, J., concurring) (stating in dictum that "[t]he Commissioner cannot tax one and not tax another without some rational basis for the difference. And so, assuming the correctness of the principle of 'equality,' it can be an independent ground of decision that the Commissioner has been inconsistent, without much concern for whether we should hold as an original matter that the position the Commissioner now seeks to sustain is wrong."); Sirbo Holdings, Inc. v. Commissioner, 509 F.2d 1220, 1222 (2d Cir. 1975) (stating that the Commissioner has a duty of consistency toward similarly situated taxpayers, but adding that if the Service is willing to renounce its inconsistent precedents, the goals of the consistency requirement have been achieved even if the goals of the taxpayer seeking the benefits of those precedents have not). Nonetheless, the interpretation of IBM and the general possibility of the Service's duty of fairness to taxpayers have proved to be controversial matters. See, e.g., Teichgraeber v. Commissioner, 64 T.C. 453, 456-57 (1975) (stating that the Service's treatment of other taxpayers is not relevant). A number of cases have limited IBM to its particular facts. See, e.g., Bookwalter v. Brecklein, 357 F.2d 78 (8th Cir. 1966); Shakespeare Co. v. United States, 389 F.2d 772 (Ct. Cl. 1968); Knetsch v. United States, 348 F.2d 932 (Ct. Cl. 1965), cert. denied, 383 U.S. 957 (1966); Bornstein v. United States, 345 F.2d 558 (Ct. Cl. 1965).

(90) See, e.g., Shaev v. Saper, 320 F.3d 373 (3d Cir. 2003); Deluxe Corp. v. United States, 885 F.2d 848 (Fed. Cir. 1989); Buckeye I, 38 Fed. Cl. 154 (1997).

(91) See supra note 52 and accompanying text.

(92) Compare Blue Cross & Blue Shield of Tex., Inc. v. Commissioner, 328 F.3d 770, 781 (5th Cir. 2003) (total rejection) with Estate of Monroe v. Commissioner, 124 F.3d 699, 707 (5th Cir. 1997) and Adobe Res. Corp. v. United States, 975 F.2d 1119, 1119 (5th Cir. 1992) (non-controlling authority); see also Transco Exploration Co. v. Commissioner, 949 F.2d 837, 840 (5th Cir. 1992) (proof of past Service position).

(93) Compare Fox Valley & Vicinity Constr. Workers Pension Fund v. Brown, 897 F.2d 275, 280 (7th Cir. 1990) (total rejection) with United States v. Szopa, 2000-1 U.S.T.C. [paragraph] 50,284 (7th Cir. 2000) (noncontrolling authority) and United States v. Wis. Power & Light Co., 38 F.3d 329, 335 (7th Cir. 1994); Harco Holdings, Inc. v. United States, 977 F.2d 1027, 1035 (7th Cir. 1992) (proof of past Service position).

(94) Compare Thom v. United States, 283 F.3d 939, 943 (8th Cir. 2002) (noncontrolling authority) with Wells Fargo & Co. v. Commissioner, 224 F.3d 874, 886 (8th Cir. 2000) (proof of past Service position).

(95) Compare Am. Stores Co. v. Commissioner, 170 F.3d 1267, 1270 (10th Cir. 1999) (total rejection) with True Oil Co. v. Commissioner, 170 F.3d 1294, 1302-03 (10th Cir. 1999) (proof of past Service position).

(96) Compare the discussion in supra note 52 (total rejection) with the rulings in supra note 72 (non-controlling authority); see also Capital Blue Cross v. Commissioner, 122 T.C. 224, 237 (2004) (proof of past Service position).

(97) See United States v. Craft, 535 U.S. 274 (2002); Rowan Cos. v. United States, 452 U.S. 247 (1981); Hanover Bank v. Commissioner, 369 U.S. 672 (1962).

(98) Craft, 535 U.S. at 274.

(99) The operative rule states:
 (a) Not Precedent. Unpublished dispositions and orders of this Court
 are not binding precedent, except when relevant under the doctrines
 of law of the case, res judicata, and collateral estoppel.

 (b) Citation. Unpublished dispositions and orders of this court may
 not be cited to or by the courts of this circuit, except in the
 following circumstances. (i) They may be cited to this Court or to
 or by any other court in this circuit when relevant under the
 doctrine of law of the case, res judicata, or collateral estoppel.
 (ii) They may be cited to this Court or by any other courts in this
 circuit for factual purposes, such as to show double jeopardy,
 sanctionable conduct, notice, entitlement to attorneys' fees, or the
 existence of a related case. (iii) They may be cited to this Court
 in a request to publish a disposition or order made pursuant to
 Circuit Rule 36-4, or in a petition for panel rehearing or rehearing
 en banc, in order to demonstrate the existence of a conflict among
 opinions, dispositions, or orders.

9TH CIR. R.36-3 [hereinafter Rule 36-3].

(100) See, e.g., Hart v. Massanari, 266 F.3d 1155 (9th Cir. 2001). In Hart, plaintiff's counsel cited an unpublished opinion and was ordered by the court to show cause as to why he should not be disciplined for violating Rule 36-3; the court exercised its discretion not to impose sanctions because violation was not willful.

(101) See infra Part IV.D.

(102) Lawrence Zelenak, Should Courts Require the Internal Revenue Service to be Consistent?, 40 TAX L. REV. 411, 433-34 (1985).

(103) Int'l Bus. Machs. Corp. v. United States, 343 F.2d 914 (Ct. Cl. 1965).

(104) See supra note 21 and accompanying text.

(105) See supra note 89 and accompanying text.

(106) See, e.g., Niles v. United States, 710 F.2d 1391 (9th Cir. 1983) (citing Rowan Cos., Inc. v. United States, 452 U.S. 247 (1981) (relying on PLRs and Rowan to demonstrate the continuous nature of the Service's approval of the taxpayer's position and relying heavily on this long-standing administrative practice in holding for the taxpayer); Xerox Corp. v. United States, 656 F.2d 659 (Ct. Cl. 1981) (requiring the Service to follow its own rulings where the Service had not chosen to renounce the doctrine governing those rulings). But see Zelenak, supra note 102, at 447 ("It is too early to tell whether Niles and Xerox are aberrations, or the beginning of a long line of cases using letter rulings to impose a duty of consistency on the Service.").

(107) The constitutional issues inherent in courts' no-citation rules (e.g. the Ninth Circuit's Rule 36-3) are distinct from those involved with section 6110(k)(3). Both rules involve First Amendment issues. However, no-citation rules--unlike section 6110(k)(3)--are not burdened by the problem of congressional overreaching because they derive from the judicial system. On the other hand, proponents of no-citation rules must face the criticism--inapplicable to section 6110(k)(3)--that the power to overlook stare decisis constitutes overreaching by the judicial branch. Rule 36-3, for example, was instituted by the Ninth Circuit. 9TH CIR. R.36-3. For more on the controversial issue of the constitutionality of no-citation rules, see Richard W. Murphy, Separation of Powers and the Horizontal Force of Precedent, 78 NOTRE DAME L. REV. 1075 (2003); Carl Tobias, Comment, Anastasoff, Unpublished Opinions, and Federal Appellate Justice, 25 HARV. J.L. & PUB. POL'Y 1171 (2002); Marla Brooke Tusk, Note, No-Citation Rules as a Prior Restraint on Attorney Speech, 103 COLUM. L. REV. 1202 (2003).

(108) Many tax cases are heard in the Tax Court, which Congress established under Article III. Because taxpayers generally can choose between tax litigation in either the Tax Court or district court, however, this Note takes the position that separation of powers issues--at least with regard to decision-making by the courts--should and do apply to the Tax Court in the same manner as to Article I courts, in order to decrease forum-shopping problems.

(109) U.S. CONST. art. I, [section] 1; id. art. II, [section] 1; id. art. III, [section] 1.

(110) THE FEDERALIST NO. 51, at 355-56 (James Madison) (Benjamin Fletcher Wright ed., 1961).

(111) Id. at 356.

(112) W. B. Gwyn, The Meaning of the Separation of Powers, in TULANE STUDIES IN POLITICAL SCIENCE vol. IX (Martinus Nijhoff ed., 1965).

(113) See, e.g., MASS. GEN. LAWS ANN. CONST. pt. I, art. 29 (2005) ("It is the right of every citizen to be tried by judges as free, impartial and independent as the lot of humanity will admit."); CHARLES FRIED, SAYING WHAT THE LAW IS 70 ("The security of the citizen against arbitrary power, whether presidential or bureaucratic, ultimately depends on the courts, and therefore depends on the degree of independence--separation--of the judicial power from the rest of the government."); J. Clifford Wallace, Judicial Administration in a System of Independents: A Tribe with Only Chiefs, 1978 BYU L. REV. 39, 50, 56 ("[E]xtrabranch controls [of the judiciary] by their very nature create a serious risk of violating the fundamental doctrine of separation of powers.... [C]omplete preservation of decision autonomy is fundamental."); THE FEDERALIST NO. 78, at 497 (Alexander Hamilton) (Benjamin Fletcher Wright ed., 1961) ("[F]rom the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its coordinate branches[.]").

(114) Irving R. Kaufman, The Essence of Judicial Independence, 80 COLUM. L. REV. 671, 697 (1980); see also United States v. Rojas, 53 F.3d 1212, 1214 (11th Cir. 1995) (stating "the courts have had few opportunities to address attempts by the other Branches to interfere with the core functions of the Judiciary"); In re Stone, 986 F.2d 898, 901 (5th Cir. 1993) (stating "[f]ortunately, history provides few examples of legislative attempts to interfere with the core inherent powers of the judicial branch"). These citations were found and cited by William F. Ryan, Rush to Judgment: A Constitutional Analysis of Time Limits on Judicial Decisions, 77 B.U.L. REV. 761, 789 n.130 (1997).

(115) See Nixon v. Adm'r of Gen. Servs., 433 U.S. 425, 443 (1977) ("[T]he Court [has] squarely rejected the argument that the Constitution contemplates a complete division of authority between the three branches."); see also THE FEDERALIST No. 47, at 337-39 (James Madison) (Benjamin Fletcher Wright ed., 1961) (acknowledging that limited commingling of power between the three branches did not pose a threat unless one branch exercised the whole power of another).

(116) 80 U.S. (13 Wall.) 128 (1871).

(117) Id. at 128.

(118) Id.

(119) Id. at 128-29.

(120) Id. at 132.

(121) Id. at 133-34.

(122) Id. at 147.

(123) See, e.g., Inmates of Suffolk County Jail v. Rouse, 129 F.3d 649, 658 (1st Cir. 1997) (holding that a challenged law did not run afoul of Klein because "it does not tamper with courts' decisional rules--that is, courts remain free to interpret and apply the law to the facts as they discern them"); Pacemaker Diagnostic Clinic of Am., Inc. v. Instromedix, Inc., 725 F.2d 537, 544 (9th Cir. 1984) (en banc) (implying that Klein prohibits Congress from "improperly direct[ing] the judiciary in the performance of its duties"); see also Henry M. Hart, Jr., The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 HARV. L. REV. 1362, 1372-73 (1953) (stating that "if Congress directs an Article III court to decide a case, I can easily read into Article III a limitation on the power of Congress to tell the court how to decide it").

(124) See, e.g., Treiber v. Katz, 796 F. Supp. 1054, 1058 (E.D. Mich. 1992) (holding that Klein "stands for the proposition that legislation prescribing a rule for a decision in a certain way, without changing the underlying law, violates the constitutional doctrine of separation of powers").

(125) See, e.g., Bankers Life and Cas. Co. v. United States, 142 F.3d 973, 978 (7th Cir. 1998); In re Gallagher, 101 B.R. 594, 603-04 (Bankr. D. Mo. 1989); Buckeye I, 38 Fed. Cl. 154, 161 (1997); Clayton v. United States, 33 Fed. Cl. 628, 639 (1995), aff'd, 91 F.3d 170 (Fed. Cir. 1996), cert. denied, 519 U.S. 1040 (1996); Colo., Ltd. v. Commissioner, 61 T.C.M. (RIA) 774, 777 (1992). Indeed, this no-reliance language may point to what the statute should, as a policy matter, do. But see infra Part V.B.4. (explaining why a recodification of section 6110(k)(3), using the language of "reliance" instead of "precedent," may not be a viable solution).

(126) See Amy R. Ronner, Judicial Self-Demise: The Test of When Congress Impermissibly Intrudes on Judicial Power After Robertson v. Seattle Audubon Society and the Federal Appellate Courts' Rejection of the Separation of Powers Challenges to the New Section of the Securities Exchange Act of 1934, 35 ARIZ. L. REV. 1037, 1045 (1993) (stating that "[c]ommentators have tended to approach Klein as a cabalist impenetrability").

(127) See Ronner, supra note 126 (discussing alternative interpretations of Klein, as well as further judicial developments in the area that are not directly relevant to section 6110(k)(3) interpretation).

(128) PETER M. SHANE & HAROLD H. BRUFF, SEPARATION OF POWERS LAW, CASES AND MATERIALS 90 (2d ed. 2002); see also Seattle Audubon Soc'y v. Robertson, 503 U.S. 429 (1992) (restricting application of Klein to the situation where Congress directed the judiciary as to decision-making under existing law and holding that Klein did not apply when Congress instead adopted a new law); Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1868) (holding that the appellate jurisdiction of the Supreme Court is subject to exceptions and regulations by Congress); Plaut v. Spendthrift Farm, Inc., 1 F.3d 1487 (6th Cir. 1993) (holding unconstitutional a statute extending deadline for allowing certain previously time-barred suits to go forward because it overturned a lower court's decision and gave relief to a party that the court had said was entitled to none).

(129) See U.S. CONST., art. I, [section] 8, cl. 18 (stating that Congress shall have power "to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof").

(130) See Gary Lawson, Controlling Precedent: Congressional Regulation of Judicial Decision-making, 18 CONST. COMMENTARY 191, 199-200 (2001).

(131) Id. at 214.

(132) Id. at 211.

(133) Id. at 228.

(134) FED. R. CIV. P. 52(a) (stating that findings of fact of federal district courts "shall not be set aside unless clearly erroneous").

(135) Lawson, supra note 130, at 222-24.

(136) See, e.g., Gary Lawson, Delegation and Original Meaning, 88 VA. L. REV. 327 (2002).

(137) See supra note 109 and accompanying text.

(138) Lawson, supra note 136, at 342.

(139) See Lee C. Weingart, Note, Who Keeps the Secrets? A Framework and Analysis of the Separation of Powers Dispute in American Foreign Service Association v. Garfinkel, 59 GEO. WASH. L. REV. 193 (1990). Weingart claims that recent Supreme Court analyses have used a bipartite test involving both formalist and functionalist arguments: while the Supreme Court will not tolerate one branch's aggrandizement of power when the powers to be added are committed to a coordinate branch, the Court will--for reasons of government efficiency--relax its separation of powers analysis when no encroachment is present. Id.; see also Mistretta v. United States, 488 U.S. 361 (1989) (holding that the placement of the sentencing commission in the judiciary did not prevent federal judges from fulfilling their judicial duties); Morrison v. Olson, 487 U.S. 654 (1988) (upholding constitutional power of the independent counsel to oversee executive branch activity, since Congress retained only normal constitutional impeachment power over the independent prosecutor as an executive officer); Bowsher v. Synar, 478 U.S. 714 (1986) (holding enforcement provision of the Balanced Budget and Emergency Deficit Control Act of 1985 unconstitutional because Congress reserved for itself the power to remove a federal officer, the comptroller general, charged with executing the law); INS v. Chadha, 462 U.S. 919 (1983) (striking down statute authorizing Congress to act by veto, a power textually committed to the President). For early cases on the separation of powers doctrine, see Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (invalidating the President's seizure of steel mills as a self-aggrandizing seizure of legislative power); United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936) (upholding a joint resolution that delegated to the President broad power to prohibit arms sales to certain countries, on the ground that the President also had plenary foreign affairs power); Little v. Barreme, 6 U.S. (2 Cranch) 170 (1804) (holding that where Congress established a procedure for seizure of ships, the Constitution mandated executive branch compliance). However, because none of these cases involve congressional self-aggrandizement at the expense of the judicial branch, they inform our understanding of section 6110(k)(3) only insofar as they trace the intricate history of functionalist and formalist approaches to the general separation of powers doctrine.

(140) Ryan, supra note 114, at 797.

(141) Michael Stokes Paulsen, Abrogating Stare Decisis by Statute: May Congress Remove the Precedential Effect of Roe and Casey?, 109 YALE L.J. 1535 (2000).

(142) Lawson, supra note 130, at 212; see also Paulsen, supra note 141, at 1540.

(143) See Paulsen, supra note 141, at 1541.
 Nor would such a congressional enactment [forbidding the Supreme
 Court from using stare decisis in a specific abortion-related
 context] dictate how the courts are to decide any given case--how
 they are to come out on the merits on the abortion issue, for
 example, or on any other. Such a statute would merely direct courts
 to decide such cases in conformity with the Constitution and not to
 apply precedents to the contrary if they are persuaded that a
 precedent decision is not a sound interpretation of the


(144) As argued below, the difference between binding and non-binding precedent is often unfeasibly difficult to discern. Nonetheless, for purposes of more coherent discussion, this note's constitutional analysis assumes that there is a distinction between the two types of precedent.

(145) See supra Part IV.B.

(146) See infra Part IV.D. Such a position is very possibly dissonant with the legislative history. There is an argument that section 6110(k)(3) was designed to make expedited rulings possible, and that the tradeoff between speed of issuance and consistency of ruling was one that Congress already made in 1976. In other words, the statute contemplates the permission of a lower rate of consistency in order to increase the timeliness of the written determinations. In that case, the use of the Service's previous positions as precedent--no matter how consistently held those previous positions were--would be diametrically opposed to the intended use of the statute. Even this important point, however, does not fully settle the question, for the plain language of the statute does not speak of such a calculus and the legislative history only hints at an explicit tradeoff. Finally, strong evidence of the policy behind a statute does not necessarily detract from arguments concerning the statute's constitutionality. Although a trade-off between timeliness and consistency may have been implied in section 6110(k)(3), that is not to say that such a trade-off is a prerequisite for the issuance of impartial, non-arbitrary decisions for which the judiciary and the executive are accountable. Professor Ryan's functionalist analysis is related to, but ultimately separate from, the issue of what the statute was originally meant to do.

(147) Legal Servs. Corp. v. Velazquez, 531 U.S. 533 (2001).

(148) The Velazquez opinion includes a brief history of the LSC:
 In 1974, Congress enacted the Legal Services Corporation Act, 88
 Stat. 378, 42 U.S.C. [section] 2996 et seq. The Act establishes the
 Legal Services Corporation (LSC) as a District of Columbia nonprofit
 corporation. LSC's mission is to distribute funds appropriated by
 Congress to eligible local grantee organizations 'for the purpose of
 providing financial support for legal assistance in noncriminal
 proceedings or matters to persons financially unable to afford legal
 assistance.' [section] 2996b(a). LSC grantees consist of hundreds of
 local organizations governed, in the typical case, by local boards
 of directors. In many instances the grantees are funded by a
 combination of LSC funds and other public or private sources. The
 grantee organizations hire and supervise lawyers to provide free
 legal assistance to indigent clients. Each year LSC appropriates
 funds to grantees or recipients that hire and supervise lawyers for
 various professional activities, including representation of
 indigent clients seeking welfare benefits.

Id. at 536.

(149) Omnibus Consolidated Rescissions and Appropriations Act of 1996 (1996 Act), Pub. L. No. 104-134, [section] 504(a)(16), 110 Stat. 1321. The 1996 Act prohibits funding of any organization:
 that initiates legal representation or participates in any other
 way, in litigation, lobbying, or rulemaking, involving an effort to
 reform a Federal or State welfare system, except that this paragraph
 shall not be construed to preclude a recipient from representing an
 individual eligible client who is seeking specific relief from a
 welfare agency if such relief does not involve an effort to amend or
 otherwise challenge existing law in effect on the date of the
 initiation of the representation.


(150) Velazquez, 531 U.S. at 545.

(151) Id.

(152) Id.

(153) See Polk County v. Dodson, 454 U.S. 312 (1981) (holding that counsel should be "free of state control" and the client should receive "the services of an effective and independent advocate"); In re Primus, 436 U.S. 412 (1978) (stating that the First and Fourteenth Amendments require a measure of protection for advocating lawful means of vindicating legal rights, including advising another that his legal rights have been infringed, and referring him to a particular attorney or group of attorneys for assistance); United Transp. Union v. State Bar of Mich., 401 U.S. 576 (1971) (holding that collective activity undertaken to obtain meaningful access to the courts was a fundamental right within the protection of the First Amendment, and that a union was therefore authorized to assist its members in finding competent legal representation at reduced fees); United Mine Workers v. Ill. State Bar Ass'n, 389 U.S. 217 (1967); Bhd. of R.R. Trainmen v. Virginia ex rel. Va. State Bar, 377 U.S. 1 (1964) (holding that, under the First and Fourteenth Amendments, the members of a fraternal organization had the constitutional right to advise their fellow members concerning the need for legal assistance and what lawyer a member could rely on, notwithstanding the state bar's power to regulate the practice of law); NAACP v. Button, 371 U.S. 415, 433 (1963) (classifying litigation as a specially-protected First Amendment activity).

(154) See The Supreme Court, 2000 Term--Leading Cases, 115 HARV. L. REV. 306, 426-36 (2001) [hereinafter Leading Cases]. For more perspectives on Velazquez, see Christopher J. Peters, Adjudicative Speech and the First Amendment, 51 UCLA L. REV. 705 (2004); Christian Hammond, Comment, The Supreme Court's Decision in Legal Services Corporation v. Velazquez and the Analysis Under the Unconstitutional Conditions Doctrine, 79 DENV. U. L. REV. 157 (2001).

(155) See Leading Cases, supra note 154, at 433 ("Because due process does not mandate that the government fund legal assistance for indigent clients in the first instance, due process should not prohibit the government, once having provided a lawyer, from restricting the arguments that lawyer can make."). One can plausibly apply this reasoning to the section 6110(k)(3) situation, where due process presumably does not mandate that the Service release written determinations and thus does not mandate that the Service allow itself to be bound by them.

(156) See Velazquez, 531 U.S. at 556-57 (Scalia, J., dissenting).

(157) See supra Part IV.C.1.

(158) See Velazquez, 531 U.S. at 555-56 (Scalia, J., dissenting).

(159) Furthermore, as with the separation of powers issue, there is an argument that section 6110(k)(3) originally was intended to allow for less consistency on the part of the Service in exchange for expedited rulings. Although such an interpretation of the statute may indeed militate against the notion that the presentation of written determinations is necessary to the proper execution of the case, the conclusion of constitutionality--as in the separation of powers issue--does not automatically follow from the legislative history.

(160) See supra Part IV.A.

(161) See Intermet Corp. v. Commissioner, 209 F.3d 901, 908 (6th Cir. 2000) ("We recognize that a Technical Advice Memorandum is not binding upon either the IRS or this court. See I.R.C. [section] 6110[(k)](3) (1994)."); Wolpaw v. Commissioner, 47 F.3d 787, 792 (6th Cir. 1995) ("[T]his Private Letter Ruling is not binding precedent upon the Internal Revenue Service as to other taxpayers, or upon this Court, 26 U.S.C. [section] 6110[(k)](3) (1988) ..."); Shell Petroleum, Inc. v. United States, 50 Fed. Cl. 524, 538 n.21 (2001) ("In any event, private letter rulings are not normally binding precedent."); Snap-On Tools v. United States, 26 Cl. Ct. 1045, 1060 (1992) ("Private Letter Rulings, although evidence of the Commissioner's administrative practice on a particular issue are not binding authority."). But see Vons I, 51 Fed. Cl. 1, 10 n.7 (2001), ("[S]ome decisions [e.g. Intermet] have mistakenly construed section 6110(k)(3) as simply indicating that private letter rulings and technical advice memoranda are not 'binding precedent. But, the plain language of that section clearly precludes a court from giving such rulings and memoranda any precedential weight.") (citation omitted).

(162) See Benjamin P. Friedman, Comment, Fishkin and Precedent: Liberal Political Theory and the Normative Uses of History, 42 EMORY L.J. 647, 673 (1993) ("Although the use of precedent is the distinctive feature of a common law legal system, and although the notion of precedent has been debated for centuries, defining the 'nature' of precedent is no easy task."); Earl Maltz, The Nature of Precedent, 66 N.C.L. REV. 367, 393 (1988) ("Rather than being a simple, easily defined monolith, the doctrine of stare decisis is a complex, multifaceted phenomenon whose diverse components reflect a variety of values. Such phenomena typically defy full and accurate description.").

(163) BLACK'S LAW DICTIONARY 1195 (8th ed. 2004).

(164) Friedman, supra note 162, at 674.

(165) See, e.g., Jill E. Fisch, Conference, Legal Transitions: Is There an Ideal Way to Deal with the Non-ideal World of Legal Change?: The Implications of Transition Theory for Stare Decisis, 13 J. CONTEMP. LEGAL ISSUES 93, 95-97 (2003). Fisch argues that courts show a tendency to consider stare decisis a binding constraint: "Even when courts overrule a precedent, they typically take pains to justify overruling in terms that extend beyond disagreement with the prior decision. Moreover, courts apparently identify an independent value in overruling a precedent, as opposed to merely distinguishing it.... The fact that courts can effect legal change without overruling suggests an independent legal significance to the decision to overrule." Id. at 95-96. But see, e.g., Ambrose Bierce, The Devil's Dictionary, in THE COLLECTED WRITINGS OF AMBROSE BIERCE 187, 330 (1946) (reflecting the popular sentiment that a precedent is "a previous decision, rule or practice which, in the absence of a definite statute, has whatever force and authority a Judge may choose to give it, thereby greatly simplifying his task of doing as he pleases"); Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 GEO. L.J. 217, 295 n.266 (1994) ("[P]recedents are sometimes binding and sometimes not."); see also Julius Stone, Fallacies of the Logical Form in English Law: A Study of Stare Decisis in Legal Flux, in 2 THE PHILOSOPHY OF LEGAL REASONING: PRECEDENTS, STATUTES, AND ANALYSIS OF LEGAL CONCEPTS 300, 300-40 (Scott Brewer ed., 1998) (discussing the logical indeterminacy caused by the discretion of judges to choose between different precedents).

(166) See, e.g., Arthur L. Goodhart, Determining the Ratio Decidendi of a Case, in 2 THE PHILOSOPHY OF LEGAL REASONING: PRECEDENTS, STATUTES, AND ANALYSIS OF LEGAL CONCEPTS 21, 42 (Scott Brewer ed., 1998) ("A precedent ... is a judicial decision which contains in itself a principle.... The principle of a case is not found in the reasons given in the opinion[.]... The principle is not found in the rule of law set forth in the opinion[.]... The principle of the case is found by taking account (a) of the facts treated by the judge as material, and (b) his decision as based on them."); Harry W. Jones, Lecture, Precedent and Policy in Constitutional Law, 4 PACE L. REV. 11, 22 (1983) ("It is the court's decision that is the precedent, not what the court says in the judicial opinion justifying that decision."). But see, e.g., Henry Paul Monaghan, Stare Decisis and Constitutional Adjudication, 88 COLUM. L. REV. 72, 764-65 (1988) (acknowledging that the general American view has been that precedent does not include the grounds for the decision, but arguing that "there seems to me no reason to exclude the underlying reasoning from the concept of the precedent").


(168) BLACK'S LAW DICTIONARY 1195 (7th ed. 1999); see also BLACK'S LAW DICTIONARY 1215 (8th ed. 2004) (defining a persuasive precedent as a precedent that is not binding, but "entitled to respect and careful consideration"). For examples of this sort of thinking, see supra Part III.B.

(169) Todd J. Zywicki, The Rise and Fall of Efficiency in the Common Law: A Supply-Side Analysis, 97 NW. U.L. REV. 1551, 1578 (2003).

(170) See id.

(171) See John W. Salmond, The Theory of Judicial Precedents, in 2 THE PHILOSOPHY OF LEGAL REASONING: PRECEDENTS, STATUTES, AND ANALYSIS OF LEGAL CONCEPTS 214, 217 (Scott Brewer ed., 1998). Professor Salmond makes a distinction between "an authoritative precedent ... which judges must follow whether they approve of it or not", and "a persuasive precedent ... which the judges are under no obligation to follow, but which they will take into consideration, and to which they will attach such weight as it seems to them to deserve." Id. A persuasive precedent "depends for its influence upon its own merits, not upon any legal claim which it has to recognition. In other words, authoritative precedents are legal sources of law, while persuasive precedents are merely historical.... In themselves [persuasive precedents] possess no legal authority." Id. Professor Salmond's definition of persuasive precedent is extremely argument-based--a framework which this Note criticizes. See infra Part IV.D.

(172) See Vons I, 51 Fed. Cl. 1, 9 & n.6 (2001).

(173) See supra Part IV.C.

(174) See Raj Bhala, The Myth About Stare Decisis and International Trade Law, 14 AM. U. INT'L L. REV. 845, 923 (1999) (stating that "our cognitive dissonance arises because nowhere in [the] definitions of 'precedent' or 'stare decisis' are we instructed that such a thing as 'non-binding' precedent exists. The essence of 'precedent,' or 'stare decisis,' is that a decided case has binding force").

(175) See Salmond, supra note 171, at 217; Bhala, supra note 174, at 940.

(176) See supra Part III.B.

(177) See supra Part IV.C.

(178) Ryan, supra note 114; see also infra Part IV.C.

(179) 323 U.S. 134 (1944).

(180) Id. at 140.

(181) Id. at 139.

(182) United States v. Mead Corp., 533 U.S. 218, 234 (2001) (citing Skidmore, 323 U.S. at 140).

(183) 467 U.S. 837, 865 (1984).

(184) 440 U.S. 472 (1979).

(185) Id. at 477.

(186) Mead, 533 U.S. at 220 (describing the holding of Skidmore and explaining that these elements were not changed by Chevron).

(187) 529 U.S. 576, 529 (2000). For the origins of the "power to persuade" standard, see Skidmore, 323 U.S. at 140.

(188) ABA Judicial Deference Report, supra note 5, at 1233 n.9. But see Fondren v. United States, 91 A.F.T.R.2d (RIA) 2585, 2592 & n.12 (S.D. Ala. 2003) (according Skidmore deference to a Service litigation guideline memorandum, which is a type of written determination under section 6110).

(189) ABA Judicial Deference Report, supra note 5, at 1232.

(190) See supra Part IV.D.

(191) On a more nuanced level, the courts have always had some rule-making power, since--as Part III demonstrates--courts have significant latitude in interpreting Congress's laws.

(192) Chevron v. Natural Res. Def. Council, 467 U.S. 837, 843 (1984) (quoting Morton v. Ruiz, 415 U.S. 199, 231 (1974)).

(193) Id. at 865.

(194) See supra Part III.D.

(195) See supra Part V.A.

(196) I.R.C. [section] 601.201(1)(1).

(197) See Buckeye II, 38 Fed. Cl. 283, 286 (1997).

(198) See supra note 34 and accompanying text.

(199) INTERNAL REVENUE SERVICE, DATA BOOK 34 (2002), available at (last visited Feb. 17, 2005).


(201) See supra Part V.A.

(202) Zelenak, supra note 102, at 439-43.

(203) Id. at 442 n.167 (quoting 6 CCH INTERNAL REVENUE MANUAL (Admin.) ch. (11)633.82(5)(b), at 35,658). For the current version of this provision, see INTERNAL REVENUE SERVICE, INTERNAL REVENUE MANUAL (2004), [section] (11-13-1996) "Part A. Case File Classification Recommendation" of the Internal Revenue Manual, at (last visited Mar. 15, 2005).

(204) 531 U.S. 533 (2001).

(205) 410 U.S. 113 (1973).

(206) The Lawson-Paulsen debate was triggered by the idea that Congress might statutorily prevent the Supreme Court from using stare decisis in a reexamination of Roe v. Wade.

(207) See, e.g., Alan L. Feld, The Economic Recovery Tax Act of 1981: Fairness in Rate Cuts in the Individual Income Tax, 68 CORNELL L. REV. 429 (1983).




(211) Id.

(212) Stichting Pensioenfonds Voor de Gezondheid v. United States, 950 F. Supp. 373 (D.D.C. 1996).

(213) ABA Judicial Deference Report, supra note 5, at 1247.

(214) Zelenak, supra note 102, at 437.

(215) OXFORD ENGLISH DICTIONARY ONLINE, at (last visited Feb. 17, 2005).

(216) Id.

(217) See supra Part V.A; see also supra Part IV.B (discussing the Service's duty of consistency).

(218) See supra Part V.A (discussion the various possible versions of heightened judicial deference due Treasury regulations under Chevron, Skidmore, and National Muffler).

Judy S. Kwok*

* J.D. candidate, Harvard Law School, 2005. Many thanks to my advisor, Professor Bernard Wolfman, who guided me through the writing process, Professor Daniel Halperin, who provided comments, and Professor Charles Fried, who offered comments on the constitutional law section (Part IV.C). Many thanks also to McKee Nelson LLP, where I was a summer associate in 2004, and Mr. Jeffrey Davis of McKee Nelson LLP, under whose supervision I did the legal research that inspired this Note.
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