Gerald A. and Henrietta V. Rauenhorst - Page 24




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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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