Updated Reliance Process for IRS FAQs and Bulletin Guidance

Updated Reliance Process for IRS FAQs and Bulletin Guidance

Reliance on Internal Revenue Service FAQs and Bulletin Guidance: Several times throughout the year, the Internal Revenue Service publishes various guidance and Frequently Asked Questions (FAQ) to to assist Taxpayers to better understand some of the more complex tax rules in more layperson terms than the code, regulations, etc. One of the biggest issues over the past several years — and especially with the Internet — it whether or not the electronically published Frequently Asked Questions that are available online by the Internal Revenue Service can be relied on by taxpayers in order to take a tax position and/or avoid IRS penalties. Up until recently, the Internal Revenue Service would oftentimes take the firm position that online FAQs are not the law and therefore cannot be relied upon as a basis for taking any tax position against the IRS. Recently, the IRS acquiesced “a bit” and provided the following summary about how taxpayers may be able to “somewhat rely” on Frequently Asked Questions, as follows:

The purpose of this Reliance Page is to confirm/explain that FAQs generally cannot be relied upon and describe authority that can be relied upon.

Guidance Published in the Internal Revenue Bulletin

• • • The Internal Revenue Bulletin (Bulletin) is the authoritative instrument of the Commissioner of Internal Revenue for announcing official rulings and procedures of the Internal Revenue Service and for publishing Treasury Decisions, Executive Orders, Tax Conventions, legislation, court decisions, and other items of general interest.

    • It is the policy of the Service to publish in the Bulletin all substantive rulings necessary to promote a uniform application of the tax laws, including all rulings that supersede, revoke, modify, or amend any of those previously published in the Bulletin. All published rulings apply retroactively unless otherwise indicated. Procedures relating solely to matters of internal management are not published; however, statements of internal practices and procedures that affect the rights and duties of taxpayers are published.

    • Revenue rulings represent the conclusions of the Service on the application of the law to the pivotal facts stated in the revenue ruling. In those based on positions taken in rulings to taxpayers or technical advice to Service field offices, identifying details and information of a confidential nature are deleted to prevent unwarranted invasions of privacy and to comply with statutory requirements.

    • Rulings and procedures reported in the Bulletin do not have the force and effect of Treasury Department Regulations, but they may be used as precedents. Rulings not published in the Bulletin will not be relied on, used, or cited as precedents by Service personnel in the disposition of other cases. In applying published rulings and procedures, the effect of subsequent legislation, regulations, court decisions, rulings, and procedures must be considered, and Service personnel and others concerned are cautioned against reaching the same conclusions in other cases unless the facts and circumstances are substantially the same.

FAQs

• • • FAQs are a valuable alternative to guidance published in the Bulletin because they allow the IRS to more quickly communicate information to the public on topics of frequent inquiry and general applicability. FAQs typically provide responses to general inquiries rather than applying the law to taxpayer-specific facts and may not reflect various special rules or exceptions that could apply in any particular case.

    • FAQs that have not been published in the Bulletin will not be relied on, used, or cited as precedents by Service personnel in the disposition of cases. Similarly, if an FAQ turns out to be an inaccurate statement of the law as applied to a particular taxpayer’s case, the law will control the taxpayer’s tax liability. Only guidance that is published in the Bulletin has precedential value. 

    • Notwithstanding the non-precedential nature of FAQs, a taxpayer’s reasonable reliance on an FAQ (even one that is subsequently updated or modified) is relevant and will be considered in determining whether certain penalties apply.

    • Taxpayers who show that they relied in good faith on an FAQ and that their reliance was reasonable based on all the facts and circumstances will not be subject to a penalty that provides a reasonable cause standard for relief, including a negligence penalty or other accuracy-related penalty, to the extent that reliance results in an underpayment of tax. See Treas. Reg. § 1.6664-4(b) for more information.

    • In addition, FAQs that are published in a Fact Sheet that is linked to an IRS news release are considered authority for purposes of the exception to accuracy-related penalties that applies when there is substantial authority for the treatment of an item on a return.  See Treas. Reg. § 1.6662-4(d) for more information.

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