- 24 - 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.Page: Previous 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 Next
Last modified: May 25, 2011