IRS TO ITS AUDITORS: FAQS AND OTHER IRS.GOV POSTINGS AREN’T LEGAL AUTHORITY

NSTPInternal Revenue Service (IRS)

IRS Small Business/Self Employed Division Memo “Interim Guidance on use of Frequently Asked Questions (FAQs) and other items posted to IRS.gov” (May 18, 2017)

IRS’s Small Business/Self Employed Division (SB/SE) has issued a memorandum to its Field Examination Area Directors that provides that frequently asked questions (FAQs) and other items posted on IRS.gov, which have not been published in the Internal Revenue Bulletin (IRB), are not legal authority.

Background: IRS makes frequent postings to its website. In many cases, these postings are in the form of FAQs. And, in many cases, the items posted to IRS.gov are not reproduced, or are not fully reproduced, in pronouncements that form part of the IRB.

SB/SE has issued a memorandum that instructs its auditors on how to treat items posted on IRS.gov. The memorandum states that it is the policy of IRS to publish in the IRB all substantive rulings necessary to promote a uniform application of the tax laws, including rulings that supersede, revoke, modify, or amend any of those previously published in the IRB.

IRS employees must follow items published in the IRB, and taxpayers may rely on them. Some items, such as FAQs, can be found on IRS.gov but have not been published in the IRB. FAQs that appear on IRS.gov but that have not been published in the IRB are not legal authority and should not be used to sustain a position unless the items (e.g., FAQs) explicitly indicate otherwise or IRS indicates otherwise by press release or by notice or announcement published in the IRB.

IRS said that the memorandum is effective on the date it was issued, May 18, 2017.

Note from Editor: The FAQ’s which appear on the IRS website are not archived nor are changes announced. If you are relying upon an answer found in an IRS FAQ it is recommended that you print off of the relevant information and retain it with the client file. While it may not be substantive authority it may assist in the ‘more than likely not’ rationale for the position taken on a return and save the tax professional from penalties.