Gerald A. and Henrietta V. Rauenhorst - Page 25




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          Secretary is not bound by his revenue rulings to be dictum.                 
          Indeed, the Court of Appeals for the Fifth Circuit, without                 
          mentioning Stubbs, subsequently rejected an argument by the                 
          Commissioner that he was not bound by his revenue rulings.                  
          Estate of McLendon v. Commissioner, 135 F.3d 1017 (5th Cir.                 
          1998), revg. T.C. Memo. 1996-307; see also Silco, Inc. v. United            
          States, 779 F.2d 282 (5th Cir. 1986).  The Court of Appeals, in             
          Estate of McLendon v. Commissioner, supra at 1024-1025, stated:             
               Most questions of deference to a revenue ruling involve                
               an argument by the taxpayer that a particular ruling is                
               contrary to law.  Here, however, the argument to ignore                
               or minimize the effect of Rev. Rul. 80-80 comes from                   
               the Commissioner, the very party who issued the ruling                 
               in the first place.  In such a situation, this circuit                 
               has a well established rule that is sufficient to                      
               resolve this case without probing the penumbrae of the                 
               general deference question.  [Fn. ref. omitted.]                       
                         *    *    *    *    *    *    *                              
                    Silco stands for the proposition that the                         
               Commissioner will be held to his published rulings in                  
               areas where the law is unclear, and may not depart from                
               them in individual cases.  Furthermore, under Silco the                
               Commissioner may not retroactively abrogate a ruling in                
               an unclear area with respect to any taxpayer who has                   
               relied on it.  [Fn. ref. omitted.]                                     
                    Applying Silco to this case, it quickly becomes                   
               clear that Rev. Rul. 80-80 must govern our decision.                   
               McLendon went to great lengths to structure his                        
               transaction to comply with applicable law, and the                     
               Commissioner does not dispute that in so doing McLendon                
               expressly relied on Rev. Rul. 80-80’s clarification of                 
               the admittedly murky area of future and dependent                      
               interest valuation.  The Commissioner ignored the clear                
               language of his own ruling in declaring deficiencies,                  
               and it is precisely this kind of tactic that Silco                     
               declares to be intolerable.  * * *  [Fn. ref. omitted.]                






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