Appeals may decline cases raising only constitutional and non-tax issues

Plain-English summary

Chief Counsel advised that the IRS Independent Office of Appeals may interpret its procedures to decline cases presenting only constitutional and non-tax issues. Publication 5 states that Appeals cannot consider reasons for disagreement that fall outside the tax laws, including arguments based solely on constitutional grounds. The advice also cites Internal Revenue Manual provisions and 26 C.F.R. § 601.106(b) as supporting that reading. The general Appeals delegation order neither specifically requires nor excludes consideration of constitutional issues. The ultimate choice of which cases to accept remains with Appeals.

Ruling snapshot

• Question: May Appeals decline a case that raises only constitutional and non-tax issues?
• Outcome: Advice given, published procedures allow Appeals to decline such a case
• Key authorities: 26 C.F.R. § 601.106(b); Publication 5; IRM §§ 4.23.22.5(2)c, 8.1.1.3.1, 1.2.47.9

Full text (IRS public release)

ID:      CCA_2018112110072398
UILC:    7803.00-00

Number: 201902031
Release Date: 1/11/2019
From:
Sent: Wednesday, November 21, 2018 10:07:23 AM
To:
Cc:
Bcc:
Subject: FW: Domestic Crude Export - Guidance Requested




This responds to your request for advice concerning whether cases raising solely
constitutional and non-tax issues are eligible for Appeals consideration. While it is
ultimately up to Appeals to interpret its provisions on criteria for case consideration, we
agree that Appeals may determine that its procedures allow it to decline to accept cases
with no tax issues.

A fair reading of Appeals published guidance and procedures would allow Appeals to
decline to consider all non-tax issues that do not fall within the scope of the tax laws,
including arguments based only on constitutional grounds. In particular, Publication 5,
Your Appeal Rights and How to Prepare a Protest If You Don’t Agree (Rev. 01-1999),
provides “Appeals can not consider your reasons for not agreeing if they don’t come
within the scope of the tax laws (for example, if you disagree solely on …
constitutional… grounds.” (Emphasis added). See also IRM 4.23.22.5(2)c.; 8.1.1.3.1;
26 CFR 601.106(b). The general Appeals Delegation Order 8-8, IRM 1.2.47.9, does
not make any specific provision for either consideration or exclusion of constitutional
issues.

To sum, it is ultimately up to Appeals to decide which cases to take and which to
decline. Current published Appeals procedures do appear to allow Appeals to decline
to accept a case which raises solely constitutional and non-tax issues.