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Commissioner, 88 T.C. 529 (1987),11 a Court-reviewed opinion, we
stated:
Respondent’s position in this case directly
contradicted his long-standing and clearly articulated
administrative position as set forth in Rev. Rul. 72-
539, 1972-2 C.B. 634, and reiterated in Rev. Rul. 83-
183, 1983-2 C.B. 220. Respondent’s counsel may not
choose to litigate against the officially published
rulings of the Commissioner without first withdrawing
or modifying those rulings. The result of contrary
action is capricious application of the law. * * *
[Phillips v. Commissioner, 88 T.C. at 534; citation
omitted.]
Respondent cites Stubbs, Overbeck & Associates, Inc. v.
United States, 445 F.2d 1142 (5th Cir. 1971), which states: “A
ruling is merely the opinion of a lawyer in the agency and must
be accepted as such. It may be helpful in interpreting a
statute, but it is not binding on the Secretary or the courts.”
Id. at 1146-1147. However, the Court of Appeals for the Fifth
Circuit made those statements in the context of its rejection of
the Government’s argument that a revenue ruling should have “the
force and effect of law.” Id. at 1146. Given the circumstances
of that case, we construe the statement in Stubbs that the
11Our decision in Phillips v. Commissioner, 88 T.C. 529
(1987), involving an award of litigation costs under sec. 7430,
was subsequently reversed by the Court of Appeals for the
District of Columbia Circuit, 851 F.2d 1492 (1988). However,
that reversal was not a result of the statements quoted above.
Instead, the Court of Appeals found the Commissioner’s reliance
on our prior decision in Durovic v. Commissioner, 54 T.C. 1364
(1970), affd. in part, revd. in part, and remanded 487 F.2d 36
(7th Cir. 1973), to be “substantially justified” under sec. 7430.
Phillips v. Commissioner, 851 F.2d at 1499.
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