In IRS Memo SSBSE-04-0517-0030, the IRS reminds its field auditors that FAQs do not constitute legal authority. Therefore, the Service can take a position that differs with its FAQs. The Memo, which also states that the Internal Revenue Manual will be amended to reflect this guidance, begins as follows:
The purpose of this memorandum is to issue guidance to remind examiners that frequently asked questions (FAQs) and other items posted on IRS.gov that have not been published in the Internal Revenue Bulletin are not legal authority. The FAQs and other items should not be used to sustain a position unless the items (e.g., FAQs) explicitly indicate otherwise or the IRS indicates otherwise by press release or by notice or announcement published in the Bulletin.
IRM subsections affected by this change are listed in Attachment 1, Interim Guidance on use of Frequently Asked Questions (FAQs) and other items posted to IRS.gov. This guidance is effective immediately and will be incorporated into IRM 4.10.7, Issue Resolution, within two years of issuance.
Posted by Lewis J. Saret, Co-General Editor, Wealth Strategies Journal.