What are Actions on Decisions?
Actions on Decisions (A.O.D.s) are publicly available from the IRS, but are not an official publication.
They are directed at specific litigation.
"An Action on Decision (A.O.D.) is a formal memorandum prepared by the IRS Office of Chief Counsel that announces the future litigation position the IRS will take with regard to [a] court decision" (From the IRS website). An A.O.D. indicates the reasoning behind the Service's recommendation whether or not to appeal a decision adverse to the IRS by a trial or appellate court and whether to acquiesce or not acquiesce to that decision (FN 1). Because only Supreme Court cases on binding on the IRS, it is important to know whether or not the IRS intends to follow the holding of a particular case.
The IRM distinguishes between the meaning of acquiescence, acquiescence in result only, and non-acquiescence:
"Acquiescence" indicates neither approval nor disapproval of the reasons assigned by the court for its conclusions.
"Acquiescence in result only" indicates disagreement or concern with some or all of those reasons.
Nonacquiescence signifies that, although no further review was sought, the Service does not agree with the holding of the court and generally, will not follow the decision in disposing of cases involving other taxpayers. In reference to an opinion of a circuit court of appeals, a nonacquiescence indicates that the Service will not follow the holding on a nationwide basis. However, the Service will recognize the precedential impact of the opinion on cases arising within the venue of the deciding circuit." I.R.M. 184.108.40.206.9.8.1
"An Action on Decision is issued at the discretion of the Service only on unappealed issues, decided adverse to the government. Generally, an Action on Decision is issued where guidance would be helpful to Service personnel working with the same or similar issues. Unlike a Treasury Regulation or a Revenue Ruling, an Action on Decision is not an affirmative statement of Service position. It is not intended to serve as public guidance and may not be cited as precedent." I.R.M. 220.127.116.11.9.8.1.
However, A.O.D.s issued after March 12, 1981 may be used as "substantial authority" to avoid the substantial understatement penalty.
A.O.D.s are numbered sequentially by year, i.e. A.O.D. 2012-024.
FN1: Gail Levin Richmond, Federal Tax Research, 5th ed., p. 98.
Where Can I Access Actions on Decisions?
- Via IRS.gov
Electronic to Authorized Users:
- Via WestlawNext
- Via Bloomberg Law
- (From the Tax Practice Center, choose Regulatory Agencies and then Actions on Decisions)
- Via Lexis Advance
- Via RIA Checkpoint
- (From the main page, under Primary Source Materials, click the + next to IRS Rulings and Releases, and then choose Actions on Decisions)
- Via the Bloomberg/BNA Tax and Accounting Center
- Via LexisNexis Academic
- Via CCH Intelliconnect