On March 5, 2019, the US Department of Treasury (Treasury) issued a policy statement on the tax regulatory process. We previously wrote an article for Law360 on the policy statement, which can be accessed here. In our article, we noted the disclaimer language in the policy statement that “is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or inequity by any party against the United States, its departments, agencies, or entities, it officers, employees, or agents, or any other person.” We further noted that this same limiting language can be found in Executive Orders issued by the President of the United States, and that courts have generally rejected attempts to rely on such orders containing this language, although it might be possible to analogize the positions in the policy statement to the Internal Revenue Service’s (IRS) statements in CC-2003-014, which instructs IRS employees not to take positions contrary to IRS published guidance.

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As we have recently discussed, Internal Revenue Service (IRS) Appeals has been making a number of changes to their administrative review process in the last few years. While many of these changes have been driven by lack of resources, others—like the standing invitation of Exam into the Appeals process—have the potential to undermine the