IRS's Small Business/Self Employed Division (SB/SE) has issued a memorandum to its Field Examination Area Directors that provides that frequently asked questions (FAQs) and other items posted on www.IRS.gov, that have not been published in the Internal Revenue Bulletin (IRB), are not legal authority.
What is going on here?
IRS employees make frequent postings to its website, www.IRS.gov. In many cases, these postings are in the form of FAQs. And, in many cases, the items posted to IRS.gov are not reproduced, or are not fully reproduced, in pronouncements that form part of the IRB.
Instruction to IRS auditors
- SB/SE has issued a memorandum referenced above that instructs its auditors on how to treat items posted on IRS.gov.
- The memorandum states that it is the policy of IRS to publish in the IRB all substantive rulings necessary to promote a uniform application of the tax laws, including rulings that supersede, revoke, modify, or amend any of those previously published in the IRB.
- IRS employees must follow items published in the IRB, and taxpayers may rely on them.
- Some items, such as FAQs, can be found on IRS.gov but have not been published in the IRB.
FAQs that appear on IRS.gov but that have not been published in the IRB are not legal authority and should not be used to sustain a position unless the items (e.g., FAQs) explicitly indicate otherwise or IRS indicates otherwise by press release or by notice or announcement published in the IRB.
IRS will reflect the contents on the memorandum in the Internal Revenue Manual, at IRM 4.10.7, Issue Resolution.
IMHO the federal government in these shortcomings is once again doing a disservice to the US Taxpaying community providing yet another reason to have an advocate knowledgeable in matters of US federal income taxation.