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Судебные дела / Зарубежная практика  / VONS COMPANIES, INC., Plaintiff, v. The UNITED STATES, Defendant., United States Court of Federal Claims., 51 Fed.Cl. 1, No. 00-234T., November 6, 2001

VONS COMPANIES, INC., Plaintiff, v. The UNITED STATES, Defendant., United States Court of Federal Claims., 51 Fed.Cl. 1, No. 00-234T., November 6, 2001


VONS COMPANIES, INC., Plaintiff, v. The UNITED STATES, Defendant.

United States Court of Federal Claims.

51 Fed.Cl. 1

No. 00-234T.

November 6, 2001.

Paul J. Sax, Orrick, Herrington & Sutcliffe LLP, San Francisco, California, for plaintiff.

Robert J. Higgins, Court of Federal Claims Section-U.S. Department of Justice, Washington, DC, with whom were Claire Fallon, Mildred L. Seidman and Steven I. Frahm, for defendant.



Owing to its interaction with more than 250 million taxpayers annually, the Internal Revenue Service (Service or IRS) has a ro╜bust administrative practice, characterized by a panoply of multi-faceted and multi-pur╜posed administrative pronouncements and positions. Among these are Treasury regu╜lations (both interpretative and legislative), revenue rulings, private letter rulings, tech╜nical advice memoranda and General Counsel Memoranda. A recurring issue in federal tax litigation involves the extent to which a taxpayer may rely on these IRS statements and positions in seeking either to support its case or, conversely, refute that of the Ser╜vice. This issue occurs here, albeit in subsid╜iary form, in a discovery dispute that arose when plaintiff sought to obtain extensive ad╜missions and numerous documents from defendant concerning various rulings and mem╜oranda prepared by the Service.

I. Background

On April 25, 2000, the Vons Companies, Inc. (Vons or plaintiff) filed a complaint in this court, seeking a refund of federal income tax arising out of the disallowance by the IRS of deductions claimed for contributions made to multiemployer defined benefit pen╜sion plans. In particular, at issue is whether plaintiff's contributions to qualified retire╜ment plans made after the close of its 1991 and 1992 taxable years, but before the ex╜tended due date for filing its returns for those years, were deductible in the year claimed under section 404(a)(6) of the Inter╜nal Revenue Code of 1986 (26 U.S.C.) (the Code). Vons claims that its deductions were explicitly authorized by Revenue Ruling 76-28, 1976-1 C.B. 107. Plaintiff asserts that this ruling both permits the deductions by its terms and was issued by the Service with the specific intent of demonstrating to taxpayers that such deductions were proper. It claims that the prior decisions which reject its con╜struction of section 404(a)(6) of the Code, American Stores Co. v. Comm'r, 108 T.C. 178, 1997 WL 143916 (1997), aff'd, 170 F.3d 1267 (10th Cir.1999), cert. denied, 528 U.S. 875, 120 S.Ct. 182, 145 L.Ed.2d 153 (1999) and Lucky Stores, Inc. & Subs. v. Comm'r, 107 T.C. 1, 1996 WL 441339 (1996), aff'd, 153 F.3d 964 (9th Cir.1998), cert. denied, 523 U.S. 1111, 119 S.Ct. 1755, 143 L.Ed.2d 787 (1999), failed to give Revenue Ruling 76-28 its prop╜er weight because the history of the applica╜tion of that ruling was "largely obscured during the consideration of those cases as the result of protracted disagreement over the introduction of certain documentary evi╜dence."

By order dated November 9, 2000, this court established a discovery plan for this case, under which discovery was to conclude June 1, 2001. Well before this date, plaintiff submitted to defendant two sets of requests for admission pursuant to RCFC 36 and one set of requests for the production of records pursuant to RCFC 34. The defendant re╜sponded, with objections, to the first set of 114 admission requests. On February 23, 2001, it filed a motion for protective order seeking to quash plaintiffs second set of 116 admission requests. On March 5, 2001, Vons responded to the government's motion with two motions of its own-a motion to compel discovery with respect to its pending request for the production of documents and motion to determine the sufficiency of the govern╜ment's responses to its first set of admis╜sions. Various responses and replies were filed by the parties with respect to these three motions. On July 12, 2001, this court heard oral argument on the pending motions.

II. Discussion

Plaintiff's discovery requ6sts center on the administrative practice surrounding the pro╜mulgation and application of Revenue Ruling 76-28, supra, as well as the IRS application of sections 404, 412 and 413 of the Code. Its admission requests generally seek to confirm the genuineness of various IRS administra╜tive documents and the text therein, as well as the accuracy of various legal propositions assertedly relevant to the instant case, and to divine other aspects of the IRS' understand╜ing of the meaning of Revenue Ruling 76-28. In addition, plaintiff seeks the production of various IRS and Treasury Department files 1 relating to Revenue Ruling 76-28, as well as files relating to sixteen identified private let╜ter rulings, technical advice memoranda and General Counsel Memoranda. Plaintiff also requests any and all other documents relat╜ing to the ongoing consideration, reconsider╜ation, development, interpretation or applica╜tion of Revenue Ruling 76-28 and the other cited IRS administrative materials.


1. For purpose of this request, a file was defined comprehensively to includes "notes, case histories, memoranda, correspondence, records and other documents prepared or obtained in con╜nection with the issuance or consideration of" the cited administrative documents.


In objecting to certain aspects of plaintiff's first set of requests for admissions and in opposing outright plaintiff's second set of admission requests and first request for doc╜uments, defendant essentially argues that plaintiff is not conducting fact discovery, but instead is attempting to bolster purely legal arguments by seeking discovery of legal matters, including the IRS' internal view of the law. It contends that much of this discovery relates to IRS administrative documents that themselves are not citable as precedent un╜der section 6110(k)(3) of the Code, thereby rendering the requests associated with those documents irrelevant as a matter of law and thus beyond the proper scope of discovery. It also argues that release of some materials sought by plaintiff is precluded by section 6103 of the Code and that other requested materials are privileged. Finally, it asserts that plaintiff's various requests are unduly burdensome and repetitious.

The boundaries of appropriate discovery are defined in RCFC 26(b)(1), paragraph (1), which states:

Parties may obtain discovery regarding any matter, not privileged, which is rele╜vant to the subject matter involved in the pending action ... It is not ground for objection that the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evi╜dence.

The standard for deciding whether discovery should be limited is set out in RCFC 26(b)(1), paragraph 2, which provides, in pertinent part:

The frequency or extent of use of ... discovery . . . shall be limited by the court if it determines that: (i) the discovery sought is unreasonably cumulative or du╜plicative, or is obtainable from some other source that is more convenient, less bur╜densome, or less expensive; (ii) the party seeking discovery has had ample opportu╜nity by discovery ... to obtain the infor╜mation sought; or (iii) the discovery is unduly burdensome or expensive . . .

RCFC 26(c) further provides for protective orders, when justice requires, "to protect a party or person from annoyance, embarrass╜ment, oppression, or undue burden or ex╜pense."

The Federal Circuit has instructed that "[q]uestions of the scope and conduct of dis╜covery are, of course, committed to the dis╜cretion of the trial court." Florsheim Shoe Co. v. United States, 744 F.2d 787, 797 (Fed. Cir.1984). A motion for protective order to limit the scope of discovery, and, contrapun╜tally, a motion to compel discovery, are both committed to that discretion. See Heat & Control, Inc. v. Hester Indus., Inc., 785 F.2d 1017, 1022 (Fed.Cir.1986) (establishing abuse of discretion as the standard of review for all discovery matters); St. Matthew Publ'g, Inc. v. United States, 41 Fed.Cl. 142, 145 (1998). In deciding either to compel or quash discov╜ery, this court must balance potentially con╜flicting goals. Thus, a " 'court must be care╜ful not to deprive a party of discovery that is reasonably necessary to afford a fair oppor╜tunity to develop and prepare the case.' " ═ Heat & Control, 785 F.2d at 1024 (quoting Fed.R.Civ.P. 26(b)(1), Notes of Advisory Committee on Rules 1983 Amendment). As the Supreme Court indicated in a famous case, "[n]o longer can the time-honored cry of 'fishing expedition' serve to preclude a party from inquiring into the facts underly╜ing his opponent's case." Hickman v. Taylor , 329 U.S. 495, 507, 67 S.Ct. 385, 91 L.Ed. 451 (1947). On the other hand, the Court in Hickman cautioned that "discovery, like all matters of procedure, has ultimate and nec╜essary boundaries .... [L]imitations come into existence when the inquiry touches upon the irrelevant or encroaches upon the recog╜nized domains of privilege." Id . at 507-08, 67 S.Ct. 385. See also Planning Research Corp. v. United States, 4 C1.Ct. 283, 296 (1983).

As presaged at the outset of this opinion, striking an appropriate balance in this case requires an understanding of the nature of tax refund cases and the role played in such litigation by IRS administrative determina╜tions and statements, such as revenue rul╜ings, private letter rulings, technical advice memoranda and General Counsel Memoran╜da. Accordingly, before turning to the mer╜its of the pending discovery motions, the court will summarize the law on these points.

A. ═ Tax Refund Suits, Revenue Rulings, Private Letter Rulings, Technical Advice Memoranda and General Counsel Memoranda

We begin with the axiomatic principle that tax refund cases are de novo proceed╜ings. Lewis v. Reynolds, 284 U.S. 281, 283, 52 S.Ct. 145, 76 L.Ed. 293 (1932). Factual issues in such cases "are tried . .. with no weight given to subsidiary factual findings made by the Service in its internal adminis╜trative proceedings." Cook v. United States, 46 Fed.Cl. 110, 113 (2000). See also Dixon v. United States, 381 U.S. 68, 74-75, 85 S.Ct. 1301, 14 L.Ed.2d 223 (1965). As such, this court's determination of plaintiff's tax liabili╜ty must be based upon the facts and merits presented to the court and does not require (or even ordinarily permit) this court to re╜view findings or a record previously devel╜oped at the administrative level. See R.E. Dietz Corp. v. United States, 939 F.2d 1, 4 (2d Cir.1991) (factual and legal analysis em╜ployed by Commissioner not relevant in a normal refund suit); McLeod, II v. United States, 2000 WL 1902257 *2 (D.Nev.2000) (same). What role do revenue rulings, pri╜vate letter rulings, technical advice memo╜randa and General Counsel Memoranda play in such a de novo proceeding? The court will discuss these topics each in turn.

A "revenue ruling" is an interpreta╜tion of the law published by the IRS in its biannual cumulative bulletin, indicating how the IRS believes the tax law should be ap╜plied to a particular set of facts. See Jacob Mertens, The Law of Federal Income Taxa╜tion ╖ 1:12, 1-13 (1999). Treasury regula╜tions indicate that the IRS intends taxpayers to rely on these rulings to the extent that the facts and circumstances concerning their sit╜uations are substantially the same as those in the ruling, but with an important proviso-the regulations emphasize that such reliance is appropriate only if the ruling has been unaffected by subsequent legislation, regula╜tions, cases or other revenue rulings. 26 C.F.R. ╖ 601.601(d)-(e) (2001). 2 Further caution against relying overly upon revenue rulings derives from a series of Supreme Court decisions, spanning the last thirty (and arguably seventy) years.


2. ═ Section 601.601 (e) provides:

(e) Taxpayers generally may rely upon Reve╜nue Rulings published in the Bulletin in deter╜mining the tax treatment of their own transac╜tions and need not request specific rulings applying the principles of a published Revenue Ruling to the facts of their particular cases. However, since each Revenue Ruling repre╜sents the conclusion of the Service as to the application of the law to the entire state of facts involved, taxpayers, Service personnel, and others concerned are cautioned against reaching the same conclusion in other cases unless the facts and circumstances are substan╜tially the same They should consider the effect of subsequent legislation, regulations, court de╜cisions, and revenue rulings.


Thus, in its 1965 decision in Dixon v. Unit╜ed States, supra, the Court held that the IRS is not bound by a revenue ruling containing a mistake of law and may correct such mistake by retroactively revoking the ruling, "even where a taxpayer may have relied to his detriment." Dixon, 381 U.S. at 72-73, 85 S.Ct. 1301. Explaining the rationale for this rule, the Court stated:

This principle is no more a reflection of the fact that Congress, not the Commissioner prescribes the tax laws. The Commission╜er's rulings have only such force as Con╜gress chooses to give them, and Congress has not given them the force of law. Con╜sequently it would appear that the Com╜missioner's acquiescence in an erroneous decision, published as a ruling, cannot in and of itself bar the United States from collecting tax otherwise lawfully due.

Id. at 73, 85 S.Ct. 1301 (footnotes omitted). In so holding, the Court harkened back to its decision, forty years earlier, in Manhattan General Equipment Co. v. Commissioner of Internal Revenue, 297 U.S. 129, 134-35, 56 S.Ct. 397, 80 L.Ed. 528 (1936), quoting a passage therein in which it held that a regu╜lation which "operates to create a rule out of harmony with the statute is a mere nullity." Dixon, 381 U.S. at 74, 85 S.Ct. 1301. The Court indicated in Dixon that "[t]his reason╜ing applies with even greater force to the Commissioner's rulings and acquiescences" and concluded that the Commissioner, there╜fore, was not precluded "from collecting the tax lawfully due under the statute." Dixon, 381 U.S. at 74-75, 85 S.Ct. 1301. See also Automobile Club of Michigan v. Comm'r, 353 U.S. 180, 183, 77 S.Ct. 707, 1 L.Ed.2d 746 (1957). 3 More recently, in Comm'r v. Schleier, 515 U.S. 323, 115 S.Ct. 2159, 132 L.Ed.2d 294 (1995), the Court reiterated these princi╜ples in rejecting the taxpayer's reliance upon a revenue ruling. While agreeing that the ruling was fully consistent with the taxpay╜er's interpretation of a Treasury Regulation, the Court, nonetheless, refused to follow it, stating that " 'the Service's interpretive rul╜ings do not have the force and effect of regulations,' and they may not be used to overturn the plain language of a statute." Id . at 336 n. 8, 115 S.Ct. 2159 (citations omitted). 4


3. Citing Dickman v. Comm'r, 465 U.S. 330, 104 S.Ct. 1086, 79 L.Ed.2d 343 (1984), plaintiff sug╜gests that the rulings in Dixon, Automobile Club and Manhattan General Equipment are obsolete because they were based upon statements in pre-1953 versions of the IRS Cumulative Bulletin that, unlike the current Treasury regulations, ex╜pressly admonished taxpayers not to rely on rev╜enue rulings. Contrariwise, Dickman, in fact, illustrates the continuing vitality of these earlier decisions. In that case, the Court rejected the argument that the Commissioner should not be allowed to assert the gift taxability of interest-free demand loans because his position allegedly represented a departure from prior IRS practice, stating:

Even accepting the notion that the Commis╜sioner's present position represents a depar╜ture from prior administrative practice, which is by no means certain, it is well established that the Commissioner may change an earlier interpretation of the law, even if such a change is made retroactive in effect. E.g., Dixon v. United States, 381 U.S. 68, 72-75, 85 S.Ct. 1301, 14 L.Ed.2d 223 (1965); Automobile Club of Michigan v. Comm'r, 353 U.S. 180, 183-184, 77 S.Ct. 707, 1 L.Ed.2d 746 (1957). This rule applies even though a taxpayer may have re╜lied to his detriment upon the Commissioner's prior position. Dixon v. United States, supra , at 73, 85 S.Ct. 1301. . . . Accordingly, petition╜ers' 'taxpayer reliance' argument is unavailing.

Dickman, 465 U.S. at 343, 104 S.Ct. 1086. Con╜trary to plaintiff's claim, then, the Court, in Dickman, wholeheartedly reaffirmed the principles it had earlier enunciated in Dixon, Automobile Club, and Manhattan Equipment.

4. Plaintiff cites two cases in support of its claim, bordering on an assertion of estoppel, that tax╜payers have a right to rely on revenue rulings in court. Plaintiff correctly notes that in Dillon, Read & Co., Inc. v. United States, 875 F.2d 293 (Fed.Cir.1989), the Federal Circuit made statements suggesting that reliance on a revenue pro╜cedure (not a revenue ruling) would be appropri╜ate, but plaintiff fails to note that the court, later in that same opinion, expressly refused to rely on that procedure in support of its holding, thereby rendering its earlier comments obvious obiter dicta. Id . at 298-99. In the other case cited by plaintiff, Estate of McLendon v. Comm'r, 135 F.3d 1017 (5th Cir.1998), the Fifth Circuit allowed the taxpayer to rely on a revenue ruling, but admit╜ted that there was significant tension between its position and that of the Supreme Court. Id. at 1024 n. 15. The Fifth Circuit panel found that it was bound to follow its earlier decision in Silco, Inc. v. United States, 779 F.2d 282, 286 (5th Cir.1986), which held that taxpayers could rely on such rulings. Estate of McLendon, 135 F.3d at 1024-25. Oddly, the Fifth Circuit indicated that while it could ignore a prior circuit prece╜dent based upon an "intervening" decision of the Supreme Court, it could not do so based on a Supreme Court decision "predating" the prior circuit precedent. Id. at 1025 n. 15. This court, however, is not so constrained and, therefore, rejects the Fifth Circuit's line of cases in favor of the Supreme Court's (predating) precedent. See also True Oil Co. v. Comm'r, 170 F.3d 1294, 1304 (10th Cir.1999) (noting that revenue rulings do not control when contrary to a statute or Con╜gress's expressed intentions); Quinn v. Comm'r, 524 F.2d 617, 622-23 (7th Cir.1975) (determin╜ing that Commissioner's acquiescence in a tax court case is not binding on the Service).


The foregoing cases deal with situations in which taxpayer seeks to rely on a revenue ruling. But, what if the IRS seeks to use a revenue ruling in support of its argument? On this count, there is a split among the courts as to the weight that should be afford╜ed to a revenue ruling. See Linda Galler, "Judicial Deference to Revenue Rulings: Reconciling Divergent Standards," 56 Ohio St. L.J. 1037, 1038 (1995). The various deci╜sions can be arrayed over a spectrum starting with those affording such rulings the least amount of deference and ending with those affording the most. If one end of the spectrum is reserved for courts according revenue rulings little or no weight then that position is undoubtedly occupied by the Tax Court (and those circuits following its lead), which has historically held that revenue rul╜ings merely "represent the position of one of the parties" before the court. See, e.g., Browne v. Comm'r, 73 T.C. 723, 731, 1980 WL 4566 (1980) (Hall, J. concurring). See also Estate of Kosow, 45 F.3d 1524, 1529 n. 4 (11th Cir.1995) (a revenue ruling "is merely an opinion of an IRS attorney"); Stubbs, Overbeck & Assoc., Inc. v. United States, 445 F.2d 1142, 1146-47 (5th Cir.1971) ("A ruling is merely the opinion of a lawyer in the agency and must be accepted as such."). More toward the middle of the spectrum lies those courts which have held that revenue rulings, while not binding, are, nonetheless, entitled to consideration as a "body of experienced and informed judgment." Ricards v. United States, 683 F.2d 1219, 1224 n. 12 (9th Cir.1981). See also Foil v. Comm'r, 920 F.2d 1196, 1201 (5th Cir.1990) (revenue rulings are "to be given weight as expressing the studied view of the agency whose duty it is to carry out the statute"). Then, at the polar oppo╜site of the Tax Court are federal courts that have held, in terms analogous to those some╜times applied to interpretative Treasury reg╜ulations, that revenue rulings "have the force of legal precedents unless unreasonable or inconsistent with the provisions of the Inter╜nal Revenue Code." See Dunn v. United States, 468 F.Supp. 991, 993 (S.D.N.Y.1979). See also In re Kaplan, 104 F.3d 589, 599 (3d Cir.1997).

The Federal Circuit, whose precedents, of course, are binding on this court, appears to lie somewhere in the middle of this contin╜uum, possibly with a slight cant towards the position of the Tax Court. Thus, in Spang Industries, Inc. v. United States, 791 F.2d 906, 913 (Fed.Cir.1986), that court stated that "a revenue ruling is entitled to some weight as reflecting the Commissioner's in╜terpretation of the regulation, but does not have the same force as a regulation." See also Xerox Corp. v. United States, 228 Ct.Cl. 406, 656 F.2d 659, 671 n. 20 (1981) ("[w]hile these rulings are not binding on the Secre╜tary of Treasury or the courts, they may be helpful in interpreting a statute"). On anoth╜er occasion, however, the Federal Circuit quoted, with approval, language from a 1934 Supreme Court decision which stated that revenue rulings cited by the Commissioner "have none of the force or effect of Treasury Decisions and do not commit the Department to any interpretation of law." Xerox Corp. v. United States, 41 F.3d 647, 657 (Fed.Cir. 1994) (quoting Helvering v. New York Trust Co., 292 U.S. 455, 468, 54 S.Ct. 806, 78 L.Ed. 1361 (1934)). Following the Federal Circuit's lead, this court has mapped out a position that considers revenue rulings, but also does not afford them binding precedence. See Int'l Bus. Mach. Corp. v. United States, 38 Fed.Cl. 661, 675 (1997); Ridenour v. United States, 3 C1.Ct. 128, 137 (1983) ("Although revenue rulings do not constitute 'binding precedent,' they provide some guidance as to the correct interpretation of the Internal Revenue Code"). 5


5. Some of the decisions which indicate that reve╜nue rulings have the force of precedent rely, either expressly or implicitly, on the concept of Chevron deference. See, e.g. , Johnson City Med. Ctr. v. United States , 999 F.2d 973, 977 (6th Cir.1993) ("[T]his Court accords deference to Revenue Ruling 85-74 under the standard set forth in Chevron. " ); CenTra, Inc . v. United States , 953 F.2d 1051, 1055-57 (6th Cir.1992). Recent Supreme Court decisions limiting the Chevron doctrine call these earlier cases into question. In Christensen v . Harris County , 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000), for example, the Supreme Court held that "[i]nterpretations such as those in opinion letters-like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law-do not warrant Chevron -style deference." The Court held that such agency interpretations of the law are enti╜tled to respect, but only "to the extent that those interpretations have the 'power to persuade.' " Id . (quoting Skidmore v. Swift & Co. , 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944)). More recently, in United States v. Mead Corp. , 533 U.S. 218, 121 S.Ct. 2164, 2173-75, 150 L.Ed.2d 292 (2001), the Court emphasized that interpretations that do not have the force of law-particularly, those that are not subjected to notice and comment-are "beyond the Chevron pale." Id ., 121 S.Ct. at 2175. That same term, in United States v. Cleveland Indians Baseball Co. , 532 U.S. 200, 121 S.Ct. 1433, 149 L.Ed.2d 401 (2001), the Court expressly declined to con╜sider whether "Revenue Rulings themselves are entitled to deference," but did conclude that a long and consistently-held IRS interpretation of the Code or its regulations was entitled to "sub╜stantial judicial deference" if reasonable. Id ., 121 S.Ct. at 1444-45. On balance, these recent Supreme Court decisions suggest that the view taken by the Federal Circuit in Spang, supra , and its progeny, that revenue rulings are entitled only to some weight, is gaining currency. See American Express Co. v. United States, 262 F.3d 1376, 1382-83 (Fed.Cir.2001) (stating that IRS deci╜sions not adopted in regulations after notice and comment are probably not entitled to Chevron deference).


In its discovery requests, plaintiff also seeks information about various private let╜ter rulings (PLRs) and technical advice mem╜oranda (TAMs). As noted by Mertens, "[u]nlike a Revenue Ruling which deals with a specific factual situation that may affect any taxpayer, a private letter ruling is issued at the request of an individual taxpayer." Mertens, supra, ╖ 3:87, 3-122. By compari╜son, a technical advice memorandum is "issued in response to a District Director's request arising out of tax return audits," and is "furnished as a way of helping Service per╜sonnel close cases and establish and maintain consistent holdings throughout the Service." Id , at ╖ 1:13, 1-17-18. Such rulings and memoranda have precedential value only to the specific taxpayers to which they are is╜sued. Id . at 1-17. This concept derives statutorily from section 6110(k)(3) of the Code (formerly section 6110(j)(3)), which pro╜vides that private letter rulings and technical advice memoranda "may not be used or cited as precedent." 26 U.S.C. ╖ 6110(k)(3). At first blush, one can scarcely imagine a prohi╜bition more sweeping, particularly given the ordinary understanding of the term "prece╜dent." 6 And this broad sweep is only con╜firmed by the statute's legislative history, which spells out its raison d'etre in the fol╜lowing terms:


6. It is appropriate to consult a dictionary to define the ordinary meaning of a term not explic╜itly defined in a statute. Int'1 Bus. Mach. Corp. v. United States, 201 F.3d 1367, 1372 (Fed.Cir. 2000), cert. denied , 531 U.S. 1183, 121 S.Ct. 1167, 148 L.Ed.2d 1025 (2001). The dictionary defines the term "precedent" as "any earlier occurrence of something similar" or, secondarily, "something done or said that may serve as an example or rule to authorize or justify a subse╜quent act of the same or an analogous kind." Merriam-Webster's Collegiate Dictionary 916 (10th ed.1993). See also Black's Law Dictionary (7th ed.1999) (defining precedent as "fur╜nish[ing] a basis for determining later cases in╜volving similar facts or issues").


Under present administrative rules, a pri╜vate letter ruling, technical advice memo╜randum, or determination letter is not to be used as a precedent by the IRS or any person. If all publicly disclosed written determinations were to have precedential value, the IRS would be required to sub╜ject them to considerably greater review than is provided under present procedures. The committee believes that resulting de╜lays in the issuance of determinations would mean that many taxpayers could not obtain timely guidance from the IRS and the rulings program would suffer accord╜ingly. Consequently, both the committee amendment and the House bill codify the present administrative rules by providing that determinations which are required to be made open to public inspection are not to be used as precedent.

S.Rep. No. 94-938 (1976), p. 311. See also H.R.Rep. No. 94-658 (1975), p. 322-23, U.S.Code Cong. & Admin.News 1976, pp. 3439, 3740, 2897, 3219. Not to be over╜looked, the prohibition against using or citing such rulings or memoranda as precedent is emblazoned on the front of every such deter╜mination. And, for additional good measure, the prohibition is reiterated both in the IRS's procedural rules, see 26 C.F.R. ╖ 301.6110-7(b), and in the revenue procedures which describe the process for obtaining a private letter ruling, see, e.g., Rev. Proc. 92-1, 92-1 Cum. Bull. 516.

Assiduously giving effect to the statute's language, most courts have refused to consid╜er private letter rulings as any form of prece╜dent. See, e.g., Peerless Corp. v. United States, 185 F.3d 922, 928 (8th Cir.1999) (af╜firming district court's decision to exclude from evidence a private letter ruling because the ruling had "no precedential effect"); American Stores Co., 170 F.3d at 1270 (rely╜ing on section 6110(k)(3) in "declin[ing] to consider the proffered rulings and memoran╜da in evaluating the legal arguments of the parties"); Lucky Stores, Inc., 153 F.3d at 966 n. 5 (rejecting taxpayer's argument that "sev╜eral private letter rulings and one technical advice memorandum . . . establish[ ] a prac╜tice of the IRS permitting deductions such as those claimed by [taxpayer]"), cert. denied, 523 U.S. 1111, 119 S.Ct. 1755, 143 L.Ed.2d 787 (1999); Fox Valley & Vicinity Constr. Workers Pension Fund v. Brown, 897 F.2d 275, 280 n. 2 (7th Cir.1990) (en banc) (stating that a private letter ruling "may not be used or cited as precedent" and refusing to "con╜sider that portion of [appellant's] brief which relies exclusively on the IRS private letter ruling as authority"), cert. denied, 498 U.S. 820, 111 S.Ct. 67, 112 L.Ed.2d 41 (1990); Liberty Nat Bank & Trust Co. v. United States, 867 F.2d 302, 305 (6th Cir.1989) (rejecting reliance on private letter rulings al╜leged to present similar fact situations); American Ass'n of Christian Schools Volun╜tary Employees v. United States, 850 F.2d 1510, 1515 n. 6 (11th Cir.1988) (refusing to consider private letter rulings as evidence that the "long-standing IRS practice has been to exempt church insurance plans from paying taxes"). 7 This court's decisions gen╜erally are to similar effect. See Exxon Corp. v. United States, 45 Fed.Cl. 581, 668 n. 180 (1999) (finding a letter ruling cited by the plaintiff "totally irrelevant") aff'd in part, rev'd in part on other grounds, 244 F.3d 1341 (Fed.Cir.2001); Reliant Energy Inc. v. Unit╜ed States, 45 Fed.Cl. 302, 307 n. 8 (1999); Piccadilly Cafeterias, Inc. v. United States, 36 Fed.Cl. 330, 333 (1996); Clayton v. United States, 33 Fed.Cl. 628, 639 (1995) (because of the statutory prohibition, the court "cannot rely on [a] letter ruling") aff'd, 91 F.3d 170 (Fed.Cir.1996) (table), cert. denied, 519 U.S. 1040, 117 S.Ct. 607, 136 L.Ed.2d 533 (1996); Snap-On Tools, Inc. v. United States, 26 Cl.Ct. 1045, 1060 (1992), aff'd 26 F.3d 137 (Fed.Cir.1994) (table). Cf. Buckeye Power, Inc. v. United States, 38 Fed.Cl. 283, 285-86 (1997).


7. By comparison, some decisions have mistaken╜ly construed section 6110(k)(3) as simply indicat╜ing that private letter rulings and technical ad╜vice memoranda are not "binding precedent." See, e.g., Intermet Corp. & Subs. v. Comm'r, 209 F.3d 901, 908 (6th Cir.2000). But, the plain language of that section clearly precludes a court from giving such rulings and memoranda any precedential weight.


The Federal Circuit has generally steered clear of this issue. In Deluxe Corp. v. Unit╜ed States, 885 F.2d 848, 853 (Fed.Cir.1989), for example, the court noted that its holding was consistent with private letter rulings, but later stated that such rulings were "not re╜lied upon in our conclusion." However, in Int'l Bus. Mach. Corp. v. United States, 170 Ct.Cl. 357, 343 F.2d 914, 924 (1965), cert. denied, 382 U.S. 1028, 86 S.Ct. 647, 15 L.Ed.2d 540 (1966) (IBM ), the Court of Claims suggested that letter rulings might be used to demonstrate that the Commissioner had abused his discretion under section 7805(b) of the Code, 8 by issuing rulings that treated competing taxpayers differently. In that case, IBM and Remington Rand, then IBM's lone competitor in the computer in╜dustry, requested rulings within months of each other regarding virtually identical prod╜ucts. The IRS issued IBM an unfavorable ruling and erroneously (as later determined by the IRS) issued Remington a favorable ruling, resulting in IBM's paying taxes that Remington was excused from. The Court of Claims remedied the situation by allowing IBM to recover the taxes paid for the period in which Remington had not been required to pay the tax. While IBM thus anticipates using letter rulings to demonstrate disparate treatment of direct competitors, two subse╜quent Court of Claims cases make clear the limits of this decision, indicating that it ap╜plies only where: (i) two or more taxpayers in direct economic competition have each ap╜plied for a ruling and only one has received a favorable ruling; and (ii) the taxpayer denied the favorable 'ruling is arguing that the Com╜missioner abused his discretion under section 7805(b) by failing to apply a new legal posi╜tion only prospectively. See Knetsch v. Unit╜ed States, 172 Ct.Cl. 378, 348 F.2d 932, 940, 940 n: 14 (1965), cert. denied, 383 U.S. 957, 86 S.Ct. 1221, 16 L.Ed.2d 300 (1966); Bornstein v. United States, 170 Ct.Cl. 576, 345 F.2d 558, 564 n. 2 (1965). 9 Thus, IBM only ever so slightly expands the realm in which pri╜vate letter rulings may be cited or used. 10


8. Section 7805(b) of the Code provides: "The Secretary may prescribe the extent, if any, to which any ruling or regulation, relating to the internal revenue laws, shall be applied without retroactive effect."

9. See also Easter House v. United States, 12 Cl.Ct. 476, 489 (1987), aff'd, 846 F.2d 78 (Fed.Cir. 1988) (table), cert. denied, 488 U.S. 907, 109 S.Ct. 257, 102 L.Ed.2d 246 (1988); Carpenter v. United States, 7 Cl.Ct. 732, 739-40 (1985), aff'd , 790 F.2d 91 (Fed.Cir.1986) (table).

10. In Computer Sciences Corp. v. United States, 50 Fed.Cl. 388 (Fed.C1.2001), Senior Judge Yock recently held that the IRS had abused its discre╜tion, under section 7805(b) of the Code, in issu╜ing a revenue ruling that prospectively denied a favorable tax treatment to taxpayers who had not yet filed their returns, but which allowed taxpay╜ers who had already filed their returns to retain that treatment. He construed IBM broadly, holding that the decision stands for the proposition "that the Service must treat similarly-situat╜ed taxpayers in a similar manner, absent some rational basis for discrimination." Id. at 394. Judge Yock then cited various private letter rul╜ings as evidence that the IRS had previously construed an earlier revenue ruling to authorize the favorable tax treatment at issue. While the actual holding of this decision may be narrow, the rationale employed therein could be viewed as exceedingly broad, so broad, according to plaintiff, as to support the pervasive discovery and use of private letter rulings and other information in the IRS's files to demonstrate unequal treatment among taxpayers. With all due re╜spect, however, this court believes that such a reading of this opinion, whether fair or not, represents an unwarranted extension of IBM (and other precedents discussed in Judge Yock's opinion)-one that separates IBM from its im╜portant factual moorings and ignores the subse╜quent limiting decisions in Knetsch, supra, and Bornstein, supra. In general, notwithstanding Justice Frankfurter's oft-quoted statement that "[t]he Commissioner cannot tax one and not tax another without some rational basis for the dif╜ference," United States v. Kaiser, 363 U.S. 299, 308, 80 S.Ct. 1204, 4 L.Ed.2d 1233 (1960) (Frankfurter, J., concurring), the manifest weight of precedent rejects a "least common denomina╜tor" notion of federal taxation, in which the law that the Congress actually enacts can be short-circuited and disregarded any time the IRS has afforded a single taxpayer or even a group of taxpayers treatment more favorable than the law provides. Thus, in Dixon, 381 U.S. at 80, 85 S.Ct. 1301, the Supreme Court noted Justice Frankfurter's concurrence in Kaiser, but rejected the taxpayer's reliance thereon, stating that "in╜sofar as petitioner's arguments question the poli╜cy of empowering the Commissioner to correct mistakes of law retroactively when a taxpayer acts to his detriment, their arguments are more appropriately addressed to Congress." See also Automobile Club, 353 U.S. at 183, 77 S.Ct. 707 ("the doctrine of equitable estoppel is not a bar to correction by the Commissioner of a mistake of law"); Davis v. Comm'r, 65 T.C. 1014, 1022, 1976 WL 3750 (1976) ("[i]t has long been the position of this Court that our responsibility is to apply the law to the facts of the case before us and determine the tax liability of the parties before us; how the Commissioner may have treated other taxpayers has generally been con╜sidered irrelevant in making that determina╜tion").


For its part, the Supreme Court has con╜sidered the precedential impact (or lack thereof) of private letter rulings or technical advice memoranda on three occasions. In Hanover Bank v. Comm'r, 369 U.S. 672, 686, 82 S.Ct. 1080, 8 L.Ed.2d 187 (1962), the Court stated that "although the petitioners are not entitled to rely upon unpublished private rulings which were not issued specifi╜cally to them, such, rulings do reveal the interpretation put upon the statute by the agency charged with the responsibility of administering the revenue laws." (Footnote omitted). This decision, however, predates the enactment of section 6110 as part of the Tax Reform Act of 1976, and thus does not stand for the proposition that letter rulings may be used as precedent notwithstanding that statute. In Rowan Cos., Inc. v. United States, 452 U.S. 247, 101 S.Ct. 2288, 68 L.Ed.2d 814 (1981), the Court cited such rulings, but only as an indication that the IRS had regularly considered and issued rul╜ings on a particular subject. Id. at 261 n. 17, 101 S.Ct. 2288. See also Xerox Corp., 656 F.2d at 660 n. 3 (citing private rulings to similar effect). Most recently, in United States v. Hill , 506 U.S. 546, 113 S.Ct. 941, 122 L.Ed.2d 330 (1993), the Supreme Court reversed a Federal Circuit decision that had found a TAM "instructive," 11 eschewing any reliance on the same memorandum by ad╜monishing that "the Code specifically pro╜vides that such memoranda 'may not be used or cited as precedent.' " Id. at 564 n. 12, 113 S.Ct. 941. While not determinative in their own right, these latter two decisions, none╜theless, are consistent with those cases that have refused to afford private letter rulings and technical advice memoranda any prece╜dential weight.


11. See Hill v. United States, 945 F.2d 1529, 1538 (Fed.Cir.1991), rev'd, 506 U.S. 546, 113 S.Ct. 941, 122 L.Ed.2d 330 (1993).


Finally, at long last, we come to the role played by General Counsel Memoranda (GCMs) in tax refund litigation. GCMs "are legal memoranda from the Office of Chief Counsel to the IRS prepared in response to a formal request for legal advice from the As╜sistant Commissioner (Technical)." Tupper v. United States, 134 F.3d 444, 448 (1st Cir. 1998); Taxation with Representation Fund v. Internal Rev. Serv., 646 F.2d 666, 669 (D.C.Cir.1981). Under the Treasury Regula╜tions, GCMs do not establish precedent, and taxpayers cannot cite them as authority against the United States. See 26 C.F.R. ╖ 1.6661-3(b)(2)(2000). See also Tupper, 134 F.3d at 448. Accordingly, while they may be looked to as a research and planning tool, they are not authority in a refund suit. See Stichting Pensioenfonds Voor de Gezondheid v. United States, 129 F.3d 195, 200 (D.C.Cir. 1997)(GCMs "have no precedential value"), cert. denied, 525 U.S. 811, 119 S.Ct. 43, 142 L.Ed.2d 33 (1998); Disabled American Vet╜erans v. Comm'r, 942 F.2d 309, 315 n. 5 (6th Cir.1991) ("[s]uch informal, unpublished opinions of attorneys within the IRS are of no precedential value"); Old Harbor Native Corp. v. Comm'r, 104 T.C. 191, 206-07, 1995 WL 35310 (1995) ("a general counsel memo╜randum is not binding precedent on this Court"). Nonetheless, such memoranda may be relevant in a refund suit as indicating the IRS interpretation of its own regulations and procedures. However, in that regard, such memoranda are entitled to no more weight or deference than any other informal agency interpretation, including a position taken on brief. See, e.g., American Express Co., 262 F.3d at 1382-83 (illustrating application of this rule).

B. Redux

The following pathmarking principles can be distilled from the foregoing discussion:

Revenue rulings are not binding precedent, but are entitled to some weight, as reflecting an interpretation of the law by the agency entrusted with its interpretation. Such rulings, however, do not require this court to apply a mistaken view of the law to a particular taxpayer. In particular, Supreme Court precedent makes clear that if a reve╜nue ruling is found to be unreasonable or contrary to law, it is binding neither on the Commissioner nor this court, based on the rationale that the Congress, and only the Congress, has the power to make law.

Private letter rulings and technical advice memoranda, in accordance with sec╜tion 6110(k)(3) of the Code, may not be used or cited in any precedential way and thus, a forliori , may not be used to support, in any fashion, an argument that one interpretation of the Code is more authoritative than anoth╜er. Rather, such rulings and memoranda may be relied upon not for their substance, but only. as indication: (i) of the IRS' admin╜istrative practice (i.e., that it has issued rul╜ings regarding a particular subject); or (ii) that, under the IBM decision, the Commis╜sioner has abused his discretion under sec╜tion 7805(b) of the Code in issuing different rulings to two directly competing taxpayers. More extensive use or citation of such rulings not only flatly ignores the plain language of section 6110(k)(3), but also threatens the careful compromise struck by the Congress in enacting that section-one that recognizes the functional relationship between allowing the IRS to use a streamlined review process to issue such rulings and memoranda on a relatively expedited basis in exchange for assurances that those documents will have no precedential impact except as to the taxpay╜ers to which they are issued.

Finally, General Counsel Memoranda do not establish precedent, but may be used as a research tool. When reasonable, they may be afforded the same deference as any informal interpretation by the IRS of a stat╜ute or regulation, but, in that regard, hold no special significance.

Armed with these principles, the court now turns to the particulars of the pending dis╜covery motions

C. Plaintiff's Requests for Admission

As noted above, plaintiff has propounded 230 separate requests for admission in two sets. These requests can be categorized loosely into five groups: (i) requests that seek to confirm the genuineness of various IRS administrative documents, including rev╜enue rulings, private letter rulings, technical advice memoranda, General Counsel Memo╜randa and segments from the Internal Reve╜nue Manual; (ii) requests that seek to con╜firm that particular statements were made in those IRS administrative documents; (iii) re╜quests that seek to confirm various legal propositions assertedly relevant to the in╜stant case; (iv) requests that seek to confirm the accuracy of quoted provisions of law and legislative history; and (iv) requests that seek to confirm aspects of the IRS' under╜standing of the meaning of Revenue Ruling 76-28, including the IRS's understanding of various private letter rulings and technical advice memoranda.

Regarding such requests for admis╜sion, RCFC 36(a) provides:

A party may serve upon any other party a written request for the admission, for pur╜poses of the pending action only, of the truth of any matters within the scope of Rule 26(b) set forth in the request that relate to statements or opinions of fact or of the application of law to facts including the genuineness of any documents de╜scribed in the request.

This rule, like its similarly-numbered coun╜terpart in the Federal Rules of Civil Pro╜cedure, thus anticipates three classes of requests for admissions: (i) requests that relate to statements or opinions of fact; (ii) requests that relate to statements or opinions of the application of law to facts; and (iii) as a subset of the second catego╜ry, requests that relate to the genuineness of any documents. See 7 Moore's Federal Practice ╖ 36.10[8] (Matthew Bender 3d ed.2001). See also English v. Cowell, 117 F.R.D. 132, 135 (C.D.Ill.1986); Williams v. Krieger, 61 F.R.D. 142, 144 (S.D.N.Y.1973). Each request for admissions must be di╜rect, simple and "limited to singular relevant facts." SEC v. Micro-Moisture Con╜trols, 21 F.R.D. 164, 166 (S.D.N.Y.1957).

According to the Committee Notes on the Federal Rules, Rule 36 serves two vital pur╜poses, "both of which are designed to reduce trial time." Fed.R.Civ.P. 36 Advisory Com╜mittee Notes (1970 Am.). Those purposes are "first to facilitate proof with respect to issues that cannot be eliminated from the case, and secondly, to narrow the issues by eliminating those that can be." Id. The Committee Notes further emphasize that Rule 36(a) "does not authorize requests for admissions of law unrelated to the facts of the case." Id. In short, hypothetical legal questions are not within the purview of RCFC 36(a). See S.A. Healy Co./Lodigiani USA Ltd. v. United States, 37 Fed.Cl. 204, 205 (1997); Ransom, 8 C1.Ct. at 647-48; Audiotext Communica╜tions Network, Inc. v. U.S. Telecom, Inc. 1995 WL 625744, * 6 (D.Kan.1995) ("opinions on abstract propositions of law are . . . objec╜tionable"); Williams, 61 F.R.D. at 144 ("pure requests for admissions of law" are prohibit╜ed); 7 Moore's Federal Practice, supra ╖ 36.10[8].

Plaintiff has moved to determine the suffi╜ciency of the defendant's objections and re╜sponses to certain of its first set of requests for admission. Defendant opposes this mo╜tion and has moved to strike plaintiff's entire second set of requests. In considering these motions, the court will group together func╜tionally related requests.

a. ═ Requests That Seek To Confirm the Genuineness of Documents

Plaintiff challenges the sufficiency of de╜fendant's objections to requests for admis╜sion numbered 32, 34, 45, 47, 57, 65, and 75, all of which concern the genuineness of inter╜nal IRS documents. Additionally, there are six requests from the second set (numbers 115, 162, 198, and 202) which concern the genuineness of certain IRS documents and other potential sources of law.

(1) ═ Requests 32, 34, 45, 47, 57, 65 and ═ 75

These requests from plaintiff's first set concern the genuineness of IRS docu╜ments related to the creation of TAMS. The documents at issue here include a "State╜ment of Facts and Position" submitted with a request for technical advice, excerpts from the IRS's technical case histories of two TAMS, a form entitled "Request for Techni╜cal Advice from Assistant Commissioner," a report prepared in conjunction with TAM 8303002, a National Office TAM, and a "Re╜quest for Technical Advice Concerning De╜ductions for Contributions to Union Pension Plan." As noted above, TAMS have no prece╜dential value and only the most limited of utility in the context of a refund suit. Given this limitation, in the court's view, materials from the IRS files underlying such memoran╜da have no potential relevance whatsoever in this litigation-either in leading to other dis╜coverable information or in their own right.

(2) Requests 115, 162, 198 and 202

These requests from plaintiff's sec╜ond set address the genuineness of two PLRs, one GCM and an excerpt from the Internal Revenue Manual. 12 The copies that plaintiff would like authenticated are redact╜ed versions taken from Westlaw and a Com╜merce Clearing House publication. Because these documents are not the originals issued by the IRS and because they have potential relevance to the case, albeit limited, plain╜tiff's admission requests seeking to confirm the genuineness of these documents are ap╜propriate and, therefore, defendant's motion for a protective order is denied as to these requests.


12. The purpose of the IRS Manual is to govern the internal affairs of the Internal Revenue Service. See United States v. Horne, 714 F.2d 206, 207 (1st Cir.1983). The provisions of the manual do not have the force of taw and are not manda╜tory or binding for the IRS. See id. See also Anderson v. United States, 44 F.3d 795, 799 (9th Cir.1995). Despite these weaknesses, the manual has been used, on a limited basis, to provide guidance in interpreting terms in regulations. See United States v. Boyle, 469 U.S. 241, 243 n. 1, 105 S.Ct. 687, 83 L.Ed.2d 622 (1985) (citing IRM section 4350(24) for what constitutes reasonable cause for filing a late tax return). Thus, it is possible for sections of the IRS manual to bear a limited relevance to actions such as the one at hand.


b. ═ Requests That Seek To Confirm The ═ Content Of Documents

Many of plaintiff's requests in both its first and second sets ask defendant to confirm the text of certain documents. The contested requests in this category include numbers 21, 48, 49, 50, 51, 52, 53, 54, 55, 56, 66, 67, 76, 100, 105, 116, 117, 127, 135, 155, 163, 165, 172, 176, 179, 182, 185, 194, 200, 203, 205, 209, 214, 215, 218, and 220. For the reasons given below, the court finds none of these requests appropriate.

(1) Requests 21, 100, 105, 127, 135, 155, 172, 176, 179, 182, 185 and 194

These requests, scattered among plaintiff's two sets of admissions requests, seek to confirm selected text from documents that defendant has already admitted are gen╜uine in responding to plaintiff's first set of requests for admission. In the court's view, once the genuineness of entire documents has been established, there is no additional benefit to be derived from confirming specific portions thereof. Requests of this nature are manifestly "unreasonably cumulative" and "duplicative" under RCFC 26(b)(1). See Van Wagenen v. Consolidated Rail Corp., 170 F.R.D. 86, 87 (N.D.N.Y.1997) (denying motion to compel answers to requests for admission seeking to confirm genuineness of quotes from documents whose authenticity had already been admitted). See also Cara╜so v. Coleman Co., 1995 WL 347003 (E.D.Pa. 1995) (striking request for admission as to whether or not a particular witness testified to certain information at a deposition as du╜plicative of the deposition itself). But see S.A. Healy Co., 37 Fed.Cl. at 205 (permitting admission requests that establish that a "con╜tract says what it says").

(2) Requests 214, 215, 218 and 220

Certain of plaintiff's second set of requests for admission seek to confirm the genuineness of excerpts from a public law and a portion of a Conference Committee Report. These are publicly-available legal documents about which defendant has no special knowledge and of which this court can take judicial notice. As such, these requests are inappropriate as "obtainable from some other source that is more convenient, less burdensome, or less expensive." RCFC 26(b)(1). See also English, 117 F.R.D. at 135 ("the request asks Defendants to admit to what the Court obviously has judicial notice of. It is absurd to require Defendants to admit to the existence of a whole body of federal law.").

(3) ═ Requests 35, 48, 49, 50, 51, 52, 53, 54, 55, 56, 66, 67 and 76

In these requests, plaintiff seeks to con╜firm quotes from the same internal docu╜ments relating to various TAMS that are the subject of requests 32, 34, 45, 47, 57, 65 and 75. Having already concluded that the en╜tire documents referenced in these requests are irrelevant, it follows , a fortiori, that the quoted portions thereof referenced in these requests are also irrelevant. - Accordingly, requests seeking to verify the genuineness of those quotes are inappropriate.

(4) ═ Requests 116, 117, 163, 165, 200, 203, 205 and 209

These requests seek to confirm the genu╜ineness of selected text from two private letter rulings, a GCM and a portion of the Internal Revenue Manual. However, the referenced documents are the same as those whose genuineness is the subject of requests 115, 162, 198 and 202, to which, the court has concluded, defendant must reply. Accord╜ingly, if, under the latter requests, defendant admits the genuineness of the entire docu╜ments, it need not address the genuineness of the excerpts therefrom. If, on the other hand, defendant denies the genuineness of any of these documents, it shall respond to the corresponding requests for admission seeking to confirm portions of the text of those documents.

c. ═ Requests That Seek to Confirm Le╜gal Propositions

The bulk of plaintiff's two sets of requests for admission are encompassed in this category (numbers 19, 23, 31, 33, 38, 43, 64, 70, 74, 81, 91-95, 98, 99, 101, 102, 104, 110, 114, 118-121, 124-26, 128, 129, 1364, 156╜61, 164, 166-68, 171, 175, 177, 178, 180, 181, 183, 184, 186-92, 195-97, 199, 201, 204, 206╜08, 210-13, 216, 217, 219, 221-28). These requests follow several patterns. Fifty-five of them seek to have defendant admit to statements constituting interpretations of Revenue Rulings, PLRs, TAMs, and other IRS documents. 13 Five seek conclusions based upon internal IRS documents that the court has already found to be irrelevant. Eighteen ask for admissions regarding the status of the law and twenty require that the defendant interpret statutes or other legal documents. Three combine otherwise appro╜priate factual inquiries with legal conclu╜sions. 14


13. In addition to requiring a legal conclusion, many of these requests are objectionable on oth╜er grounds. For example, Requests 19, 38, 43, 64 and 74 also implicate information protected under section 6103(a).

14. For example, Request 225 asks "Admit that the Service has not issued a Revenue Ruling, Revenue Procedure or Notice that provides for disallowance of deductions under section 413(b)(7) on the basis of any deduction limitation determined on an employer-by-employer basis." The first half of this request seeks to confirm specific IRS actions, but the second half of the question requires the defendant to make legal interpretations and agree to broad legal conclusions.


In response to defendant's objections, plaintiff baldly asserts that its requests merely require application of the law to the facts of this case and, as such, are appropri╜ate under RCFC 36(a). But, while admissions seeking such an application of the law are expressly permitted by that rule, plaintiff has made no effort-either in its admission requests or in its memoranda in support thereof-to connect the legal propositions contained in its admissions requests with the specific facts and circumstances of this case. Indeed, some of the requests clearly have nothing to do with the facts of this case. For example, Request 180 asks defendant to ad╜mit to a legal conclusion involving "single-employer defined benefit plans," even though this case involves a multi-employer plan. As discussed above, such a request, which essen╜tially seeks a pure or hypothetical admission of law, is not authorized by RCFC 36(a). 15 The same can be said of all the requests in this category, each of which involves a legal conclusion not expressly tethered to the facts of this case.


15. See also Williams, 61 F.R.D. at 144 ("pure requests for admissions of law are improper un╜der Rule 36") and cases cited, infra, at part B. Indeed, even if defendant were to admit to such requests, they would not be binding on this court. See LaForte v. Homer, 833 F.2d 977, 982 (Fed.Cir.1987) (rejecting an admission as not de╜terminative of the meaning of a statute because statutory interpretation is a legal issue to be determined by the court not agreement of the parties), cert. denied, 486 U.S. 1006, 108 S.Ct. 1730, 100 L.Ed.2d 194 (1988).


d. ═ Requests That Seek Background Information about IRS Documents

In twelve of its requests from its first set, plaintiff requests information concerning the taxpayers who are the subjects of certain TAMS and PLRs (Numbers 18, 19, 29, 30, 41, 42, 43, 62, 63, 64, 73, & 74). An additional four requests seek information about the pro╜cedure for compiling the background files for certain TAMS, as well as the identities of the agents who wrote documents in them (Num╜bers 36, 44, 46, 58, & 77). For the reasons that follow, none of these requests for admis╜sion are appropriate.

(1) ═ Requests 18, 29, 30, 41, 42, 62, 63, 73 and 74

The information sought. in these requests would identify the industries, the unions and the nature of the pension plans involved in certain TAMS or PLRs. This information ap╜parently does not appear in the copies of the documents plaintiff retrieved from Westlaw and Commerce Clearing House. This is not coincidental, as section 6110(c) of the Code requires the Secretary to delete such infor╜mation before IRS written determinations are made available to the public. Informa╜tion redacted from PLRs and TAMS before public release is also protected from disclo╜sure by section 6103(a) of the Code, like section 6110, enacted as part of the Tax Reform Act of 1976, which provides for the confidentiality of tax returns and return in╜formation and prohibits the disclosure there╜of, except as authorized. See Church of Scientology of California v. Internal Rev. Serv., 484 U.S. 9, 11-12, 108 S.Ct. 271, 98 L.Ed.2d 228 (1987); Heimark v. United States, 14 Cl.Ct. 643, 644-45 (1988). Under section 6103(b)(2)(B) of the Code, "return information" is specifically defined to include "any part of any written determination or any background file document relating to such written determination . . . which is not open to public inspection under section 6110..."

Plaintiff, however, argues that the IRS may reveal the requested information under an exception to the anti-disclosure rule of section 6103(a). The battleground for this contention is section 6103(h)(4)(B) of the Code, which provides that "[a] return or re╜turn information may be disclosed in a Fed╜eral . . . judicial . . . proceeding pertaining to tax administration" but only "if the treat╜ment of an item reflected on such return is directly related to the resolution of an issue in the proceeding." Assuming arguendo, plaintiff's request involves "the treatment of an item reflected on [a] return," it remains that the information sought is not "directly related" to the resolution of an issue before this court. Courts construing the phrase "directly related" have generally found that term vague and have resorted to the legisla╜tive history of section 6103 to determine what Congress intended. See, e.g., Shell Petrole╜um, Inc. v. United States, 47 Fed.Cl. 812, 817 (2000); Heimark 14 C1.Ct. at 648-49; see also Church of Scientology, 484 U.S. at 16╜17, 108 S.Ct. 271 (relying on legislative history in construing section 6103). This court agrees that the phrase "directly related" is ambiguous and thus turns to the legislative history for illumination.

To describe the meaning of the phrase "directly related," the legislative history con╜trasts the requirements of section 6103(h)(4)(B) with those of section 6103(h)(2)(B). The latter provision autho╜rizes the Justice Department to receive a tax return and return information where "treat╜ment of an item reflected on such return is or may be related to the resolution of an issue in [a] proceeding or investigation." Discussing the relationship between these two exceptions, the Conference Committee Report provides:

The return or return information of a third party will be disclosed to the Justice De╜partment in the event that the treatment of an item reflected on his return is or may be relevant to the resolution of an issue of the taxpayer's liability under the Code. The return or return information of a third party will also be disclosed to the Justice Department when the third party's return or return information relates or may relate to a transaction between the third party and the taxpayer whose tax liability is or may be at issue and the return information pertaining to that transaction may affect the resolution of an issue of the taxpayer's liability .... A third party return may also be disclosed in a court proceeding, subject to the same item and transactional tests described above, except that the items and transactions must have a direct relation╜ship to the resolution of an issue of the taxpayer's liability.

House Conf. Rep. No. 94-1515, p. 477-78, U.S.Code Cong. & Admin.News 1976, pp. 4118, 4182. See also Jt. Comm. on Tax'n, Summary of the Tax Reform Act of 1976, 1976-3 Cum. Bull. 411, 479 (summarizing this legislative history). The Senate Report, pre╜pared by the Senate Finance Committee, in which this legislation originated, gives sever╜al examples of situations that would meet the statute's requirements. The item test would be met, according to this report, where the treatment of items on the return of a pass╜through entity (e.g., a subchapter S corporation or a partnership) is relevant to the reso╜lution of the taxpayer's liability because of some relationship (e.g., shareholder, partner) of the taxpayer with the entity. S.Rep. No. 94-938, p. 325. And as an example of a situation that would meet the transactional test, the report offers a situation involving the purchase of a business, where the treat╜ment by the buyer of an item (e.g., the amortization of an intangible asset) is incon╜sistent with the treatment afforded the same item by the seller (e:g., capital gain treat╜ment). Id .

Thus, the legislative history es╜tablishes that Congress intended that two separate requirements would be met before tax returns or return information may be disclosed by the IRS under section 6103(h)(4)(B). First, in order to qualify as "related" information, either an item reflected on a return must be related to the resolution of an issue in the proceeding (the "item test") or there must exist a transac╜tional relationship between a party and the taxpayer (the "transaction test"). And then to be "directly" related, there must be a "direct relationship" between the information and the resolution of an issue in the proceed╜ings. See House Conf. Rep. No. 94-1515 (1976), p. 477-78; S.Rep. No. 94-938 (1976), p. 325-26. ═ See Heimarh 14 C1.Ct. at 649-50. 16 Critically, for our purposes, these com╜mittee reports, both by way of explanation and example, attest that neither the "item test" nor the "transaction test" are met when the only link between the taxpayer seeking the information and the third party is that, owing to unrelated tax events, both taxpay╜ers claimed the same tax treatment for a similar item of income, deduction or credit. 17 Thus, neither the transaction test nor the item test are met simply because both tax╜payers' returns involve, for example, the amortization of the same type of intangible asset or the exclusion of a particular catego╜ry of income. And the reason for this result is plainly that, except, perhaps, in a case involving the application of the IBM doctrine, the treatment of an item on the third-party's return, whether as originally claimed or al╜lowed by the IRS, has no legal relevance to the proper tax treatment of that same item on the return of the taxpayer requesting disclosure.


16. See also Michael I. Saltzman, IRS Practice and Procedure 4.06[5][b] (tax return information "may be disclosed in a tax proceeding, sub╜ject to the same item and transaction tests appli╜cable in disclosures to the Justice Department, except that the items and transactions must have a 'direct relationship' to the resolution of an issue in the proceeding").

17. Illustrating this point, the Senate Committee Report identifies two situations that would meet neither the item test nor the transactional test. The first is where an issue existed as to whether compensation paid to an executive was reason╜able (under section 162 of the Code). In such circumstances, the report indicated that a taxpayer could not obtain returns or return informa╜tion of other companies reflecting the compensa╜tion paid to their executives. S. Rep No. 94-938, at 325. The second involved a section 482 case (involving the reallocation of profits and losses among related companies), in which a taxpayer might defend against a tax deficiency by asserting that the price paid a subsidiary for a product was the same price paid between unrelated com╜panies. In such circumstances, the report indi╜cates that the return or return information of a company unrelated to the taxpayer would not be disclosable under either the item or transactional tests. Id. at p. 325-26. See Shell, 47 Fed.Cl. at 819.


That rationale holds true and is dis╜positive here-the information plaintiff seeks is neither "related" nor, especially, "directly related" to the resolution of the issue faced by the court. In arguing to the contrary, plaintiff would have this court broadly con╜strue section 6103(h)(4)(B) to authorize the IRS to release a taxpayer's information whenever a ruling requested by that taxpayer involved the same issue raised in the litigation. Such a construction, however, would be tantamount to rewriting the stat╜ute, deleting, at very least, the word "direct╜ly," and, perhaps the word "related," as well. Under plaintiff's construction, release of third-party taxpayer information would be the norm, not the exception, as the circum╜stances warranting such releases-alleged commonality of tax treatment-would exist in many cases and virtually every case in╜volving an industry-wide issue. To release return information in such circumstances would fly in the face not only of the specific legislative purpose underlying section 6103(h)(4)(B), but also the broader legislative history of section 6103(a), which repeatedly emphasizes the vital importance to tax ad╜ministration of maintaining the privacy of tax returns and return information. 18 See Church of Scientology, 484 U.S. at 17, 108 S.Ct. 271 (rejecting an interpretation of an exception to section 6103 that "would work such an alteration to the basic thrust of " that section). Moreover, this result would evis╜cerate important protections contained in section 6110 of the Code, designed to allow taxpayers seeking letter rulings and TAMS to protect tax information submitted by them in seeking such a determination. 19 As such, plaintiff's broad construction of the exception contained in section 6103(h)(4)(B), if adopted, would work a sea change that would swamp not only the general rule requiring nondisclo╜sure of tax return information, but the pro╜tections against such disclosure contained in section 6110, as well. Compare Tax Ana╜lysts v. Internal Rev. Serv., 117 F.3d 607, 616 (D.C.Cir.1997) (section 6103 and 6110 are in pari materia and should be construed consis╜tently).


18. While some decisions have suggested that sec╜tion 6103 was enacted primarily to prevent the improper uses of tax return information for polit╜ical purposes, the legislative history of the Tax Reform Act of 1976 reflects a much broader purpose for this provision. The accompanying committee reports thus list numerous procedures under which the IRS had released taxpayer information to the Justice Department and other Federal and State agencies for nontax purposes, noting that such uses had "raised the question of whether the public's reaction to this possible abuse of privacy would seriously impair the ef╜fectiveness of our country's very successful vol╜untary assessment system which is the mainstay of the Federal tax system." S.Rep. No. 94-938, p.317, U.S.Code Cong. & Admin.News 1976, pp. 3439, 3747. See also Confidential Informant 92-95-932X v. United States, 45 Fed.Cl. 556, 558 (2000). To protect the integrity of the tax system and to promote accuracy in tax reporting, the Congress thus enacted the "general rule" that "returns and return information are to be confidential and not subject to disclosure," except as provided in one of the statute's exceptions. Id . at 318. See also Ingham v. United States, 167 F.3d 1240, 1245 (9th Cir.1999) ("statute is de╜signed to protect the flow of information between taxpayers and the Internal Revenue Service by controlling the disclosure of tax information by government employees").

19. Thus, section 6110(g) of the Code requires the IRS to make publicly available a redacted version of a written determination and redacted versions of certain of the background materials relating to the determination. Under section 6110(g)(1)(A), not less than seventy-five days be╜fore disclosing these materials, the IRS must notify the person who received the written deter╜mination that it intends to make these disclo╜sures. That individual, if he or she believes that the IRS is releasing more information than is permitted by section 6110(g), is then authorized to file suit in the United States Tax Court chal╜lenging the release. See ╖ 6110(f)(3)(A).


Plaintiff, however, contends that in Shell Petroleum, Inc. v. United States, 46 Fed.Cl. 719 (2000), motion for reconsideration de╜nied, 47 Fed.Cl. 812 (2000), this court broad╜ly construed the "directly related" require╜ment in section 6103(h)(4)(B) in a fashion that would permit the discovery requested. In Shell this court ruled that a taxpayer seeking a tax credit for oil produced from tar sands could potentially receive information from other oil-producing taxpayers' certifi╜cates of credit under section 6103(h)(4)(B). Under the IRS's interpretation of the tax provision at issue in that case, the tax credit was available only for extraction techniques that were not widely employed. Judge Da╜mich ordered an in camera review of other taxpayers' certificates in an effort to ascer╜tain whether those certificates provided evi╜dence regarding whether Shell's extraction method was widely used. Shell, 46 Fed.Cl. at 724-25. In a motion for reconsideration (joined by one of the companies whose certif╜icate was to be provided for in camera re╜view), the government, apparently for the first time, made arguments based upon the legislative history of section 6103(h)(4)(B). Shell, 47 Fed.Cl. at 816.

In denying the motion for reconsideration, Judge Damich found that the term "directly related" was "vague," and, based upon that finding, carefully examined the legislative history. His opinion, however, only indirect╜ly discussed portions of the Senate and Con╜ference Committee reports that outlined the "item" test, and did not discuss the "transac╜tion test"-he did not explicitly adopt either the "item test" or the "transaction test." However, Judge Damich took great care to emphasize that he was not equating the con╜cept of "directly related" under section 6103(h)(4)(B) with the standard of relevancy in Rule 401 of the Federal Rules of Evi╜dence. 20 Shell, 47 Fed.Cl. at 816, 819. Nonetheless, he did hold that the definition of "relevant evidence" contained in Rules 401 and 404 of the Federal Rules of Evidence "serves as a helpful guide" in determining whether tax return information was "directly related" within the meaning of section 6103(h)(4)(B). Id, at 818-19. Based upon this analysis, Judge Damich concluded only that the certificates "might be 'directly relat╜ed,' " deferring the final decision whether to release any of this information until he had the opportunity to conduct the in camera review. Id . at 820. Following this review, the court apparently released heavily redact╜ed versions of the certificates to the plaintiff. But, Judge Damich ultimately did not rely on any of this information in recently granting the defendant's motion for summary judg╜ment and dismissing the plaintiff's complaint. See Shell Petroleum Inc. v. United States, 50 Fed.Cl. 524 (2001).


20. This rule provides that "relevant evidence" is that evidence having "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evi╜dence." F.R.Evid.401.


Contrary to plaintiff's claims, Shell pro╜vides no basis for authorizing the release of the information requested here. Unlike the instant case, the information sought in Shell potentially related to a critical factual issue therein and thus was much more related to the issue before that court than is the case with respect to the information sought here. Even were this not the case, it must be emphasized that the court, in Shell, did not hold that all evidence admissible under the Federal Rules of Evidence is "directly relat╜ed" to an issue. To be sure, the relevancy standard in the Federal Rules of Evidence provides an outer boundary on what may be disclosed under section 6103(h)(4)(B)-if in╜formation is not relevant at all, it obviously does not meet the requirements of that para╜graph. But, as Judge Damich's opinion in Shell infers, because a document meets the evidentiary relevancy standard does not mean that it also meets the disclosure re╜quirements-the two standards are not co╜terminous. Indeed, the language establish╜ing what is "relevant evidence" under the Federal Rules of Evidence is quite different and certainly much broader than the "direct╜ly related" language in section 6103(h)(4)(B)-a difference which the legisla╜tive history of the latter provision indicates should not be overlooked. That legislative history, in fact, cites several examples of relevant, admissible evidence that Congress, nonetheless, indicated should not be disclosed under section 6103(h)(4)(B). See S.Rep. No. 94-938, pp. 326, U.S.Code Cong. & Ad╜rnin.News 1976, pp. 3439, 3755 ("return of a third-party witness could not be introduced in a tax proceeding for purposes of discredit╜ing that witness"); House Conf. Rep. No. 94╜1515, p. 482, U.S.Code Cong. & Admin.News 1976, pp. 4118, 4187 ("under the conference agreement a return or return information would not be admissible for purposes of 'col╜lateral impeachment' "). See also Heimark, 14 C1.Ct. at 649. Finally, to the extent Judge Damich's opinion can be read to reject the "item" and "transactional" tests outlined in the legislative history of section 6103(h)(4)(B), this court, for the reasons de╜scribed above, respectfully concludes to the contrary.

Accordingly, without mapping the outer contours of what information is "directly re╜lated" to an issue in litigation, this court is quite convinced that plaintiffs requests fall far short of what is required to support the release of taxpayer information under section 6103(h)(4)(B). The relationship between the requested information and this case is decid╜edly indirect and tangential, and, as such, plaintiff, not surprisingly, has failed to show that the information requested is "related," let alone "directly related," to an issue before the court within the meaning of section 6103(h)(4)(B). The general rule of nondisclo╜sure in section 6103(a) thus fully applies and, based upon that provision, the court con╜cludes that the requests for admission in this grouping are all inappropriate.

(2) Requests 36, 44, 46, 58 and 77

These requests seek admissions concern╜ing the procedure for compiling background IRS files and the participants in that procedure. The court has determined that those files are irrelevant to this action. It stands to reason that if the files themselves are irrelevant the order of when certain docu╜ments were created and who authored them are also irrelevant. See McLeod v. United States, 2000 WL 1902257, *1-2, 2000 U.S. Dist. Lexis 18012, *5-6 (D.Nev.2000) (finding IRS personnel records and information re╜garding location of IRS files irrelevant).

e. ═ Duplicate Requests

Plaintiff makes twelve requests in its sec╜ond set that ask for the exact same informa╜tion as requests made in its first set (Num╜bers 122, 123, 130, 131, 132, 133, 134, 169, 170, 173, 174, & 193). Most of these requests are verbatim copies of requests to which the defendant has already admitted. These re╜quests thus are obviously cumulative and un╜necessary and, indeed, border on being sanc╜tionable under RCFC 37.

f. ═ Requests That Seek Information on IRS Regulations

Plaintiff's requests numbered 229 and 230 seek information regarding the sta╜tus of regulations authorized by statute, but not yet promulgated by the IRS. In the court's view, these are essentially fact-based inquiries regarding whether the IRS has, of a particular date, performed a particular task. As such, unlike many others of plain╜tiff's admissions requests, these requests re╜quire no abstract legal conclusions and are, therefore, appropriate.

D. ═ Plaintiff's Requests for the Production of Documents

As noted above, on May 30, 2000, plaintiff served its first request for production of documents, which contained 23 separate re╜quests. Defendant objected to these re╜quests and plaintiff responded with a motion to compel responses to 18 of the 23 requests. The court will review these requests seria╜tim, simultaneously focusing on assertions made in plaintiff's motion to compel the pro╜duction of these documents and defendant's opposition thereto.

1. ═ Request No. 1, seeking all notes, case history, memoranda, correspon╜dence, records and documents pre╜pared or obtained in connection with the preparation, issuance or consid╜eration of Rev. Rul. 76-28.

In arguing for production of these materi╜als, plaintiff' asserts that "documents relating to the issuance or consideration of Rev. Rul. 76-28 cannot help but provide insight into its purposes and the rationale underlying it." It contends that these materials-essentially the rulings prepublication package and asso╜ciated files-are analogous to legislative his╜tory and constitute an "evidentiary mosaic" that will demonstrate that its construction of the revenue ruling is consistent with the IRS' own intent in crafting and initially applying the ruling. It contends that the requested materials ultimately will demonstrate that its reliance on the revenue ruling was reason╜able and correct. But, left largely unarticu╜lated is just how and why these various contentions are relevant in a case that nei╜ther involves the reasonableness of plaintiffs conduct (as might be true in a case involving a penalty) nor a valid attempt to estop the government, but instead presents nothing more than a pure question of statutory con╜struction. 21


21. In. support of this claim, plaintiff cites Deluxe Check Printers, Inc. v. United States, 5 Cl.Ct. 498 (1984), as recognizing "the power secondary documents have to reveal the true meaning of Service written determinations." In fact, in that case, this court refused to allow the plaintiff to discover memoranda and other documents pre╜pared by the Treasury Department or the IRS which allegedly explained the meaning of the statute under review. In so holding, this court stated:

This court cannot sustain plaintiff's contention that internal administrative documents of an executive agency, purporting to explain the meaning or purpose of particular statutory lan╜guage, have any definitive bearing on the pur╜pose of Congress in promulgating such statuto╜ry language. Plaintiff refers this court to no authority supportive of this position. To the contrary, it strains credulity to contend that such postenactment documents could reason╜ably be considered to form any legitimate part of the legislative history to subject statutory provision which may be considered in deter╜mining whether the IRS has properly applied the statute.

Id . at 500. See also Groves v. United States, 533 F.2d 1376, 1380 (5th Cir.1976) (rejecting discovery regarding rationale for revenue ruling in case involving question of statutory construction), cert. denied, 429 U.S. 1000, 97 S.Ct. 529, 50 L.Ed.2d 611 (1976).


Are plaintiff's assertions relevant in this context? If the language of the statute is clear, or Congress' intent is otherwise discernible from the statute's legislative history, then that intent is the sockdolager here-nothing in Rev. Rul. 76-28, let alone the materials underlying it, can prevent this court from applying the law enacted by Con╜gress. Indeed, the foregoing discussion am╜ply demonstrates that even if the revenue ruling clearly indicated that plaintiff was en╜titled to its claimed deductions, it still would not bind this court if that conclusion was inconsistent with Congress' intent. Accord╜ingly, the reasonableness of plaintiffs reli╜ance on that ruling is truly irrelevant here. Rather, as a threshold matter, Rev. Ru1.76-28 is only relevant in this case if one or more of the Code provisions at issue are suscepti╜ble to more than one reasonable construction. In that event, this court would be called upon to choose between plaintiff's interpretation and the defendant's. This choice could be informed by the court's review of Rev. Rul. 76-28, which, under the Federal Circuit's precedent described above, is entitled to some weight. Ordinarily, however, that re╜view would be accomplished simply by re╜viewing the terms of the ruling. Under this scenario, the prepublication package for the ruling would be relevant only if the IRS pressed an interpretation thereof that seemed inconsistent with the terminology of the ruling and plaintiff could then use the background material to demonstrate that the IRS position was not long-standing and, in╜deed, was inconsistent with the agency's orig╜inal interpretation of the ruling.

Accordingly, the files requested by plaintiff will be relevant in this action only in very limited circumstances. And, even in those limited circumstances, various materials in those files undoubtedly will shed no light whatsoever on what the IRS, as an agency, felt the ruling meant or means. Thus, for example, the files could contain memoranda from individual IRS line attorneys setting forth positions that do not represent the agency's formal view of the law, including positions that were rejected by the IRS or the Treasury Department in choosing the final terminology and scope of the ruling, In this regard, plaintiffs attempt to analogize the ruling's background file to a statute's legislative history, in fact, proves informative, but only in sounding a note of caution. Seemingly, just as courts often refuse to attribute to Congress views expressed by a staffer or an individual member of Congress, particularly where such statements are made after the passage of a law, 22 so too should this court be extraordinarily hesitant to at╜tribute to the IRS or the Treasury Depart╜ment interpretations of a revenue ruling made by individual IRS employees that rep╜resent their personal views, rather than the official position of the agency. See Sidell v. Comm'r, 225 F.3d 103, 111 (1st Cir.2000) (rejecting the taxpayer's reliance on a num╜ber of internal IRS memoranda to show that a proposed regulation was not meant to cover a particular situation); Armco, Inc. v. Comm'r , 87 T.C. 865, 867, 1986 WL 22040 (1986) (affidavit of IRS employee explaining his intent in drafting a regulation irrelevant to interpreting the regulation). See also Honeywell, Inc. v. United States, 228 Ct.Cl. 591, 661 F.2d 182, 185-86 (1981) (finding subcommittee report not reflective of full committee's intentions in promulgating regu╜lation). Thus, even if, in general, the back╜ground file of a revenue ruling might, in highly limited circumstances, be relevant in resolving a question of statutory construc╜tion, it remains that the only materials in that file that would figure in this court's decisional calculus are those reflecting some high level of agency approval.


22. See, e.g., Southeastern Community College v. Davis, 442 U.S. 397, 411-12 n. 11, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979); City of Los Angeles Dept. of Water and Power v. Manhart, 435 U.S. 702, 714, 98 S.Ct. 1370, 55 L.Ed.2d 657 (1978); McCaughn v. Hershey Chocolate Co., 283 U.S. 488, 493-94, 51 S.Ct. 510, 75 L.Ed. 1183 (1931); Duplex Printing Press Co. v. Deering, 254 U.S. 443, 474, 41 S.Ct. 172, 65 L.Ed. 349 (1921)


Conceding that some of these materials may be relevant and thus potentially discov╜erable, it remains to be determined whether any of the relevant materials are privileged. Indeed, while defendant invokes a wide range of privileges, two privileges appear particularly applicable to the materials re╜quested. 23 The first again derives from the nondisclosure provisions of section 6103(a) of the Code. Based on this court's conclusion that no exception to this disclosure provision is applicable in the instant case, defendant thus is not obliged to produce any documents containing tax return information, unless that information somehow could be readily redact╜ed.


23. Among the other privileges invoked by defen╜dant is the work product privilege. However, the court fails to see how this privilege could be applicable to documents in a prepublication package that clearly were not prepared in antici╜pation of litigation. See, e.g., Peterson v. United States, 52 F.R.D. 317, 320-21 (N.D.Ill.1971). See generally, Hickman v. Taylor, 329 U.S. 495, 509-10, 67 S.Ct. 385, 91 L.Ed. 451 (1947).


The second privilege potentially applicable here is the deliberative process privilege. In NLRB v. Sears Roebuck Co., 421 U.S. 132, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975), the Supreme Court recognized that within the scope of the executive privilege exists a deliberative process privilege that protects documents "reflecting advisory opin╜ions, recommendations and deliberations comprising part of a process by which the governmental decisions and policies are for╜mulated." Id. at 150, 95 S.Ct. 1504 (quoting Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318, 324 (D.D.C.1966), aff'd sub nom. V.E.B. Carl Zeiss, Jena v. Clark, 384 F.2d 979 (D.C.Cir.1967), cert. denied, 389 U.S, 952, 88 S.Ct. 334, 19 L.Ed.2d 361 (1967)). 24 To qualify for this exception, the information sought must be predecisional, that is, addressing activities "antecedent to the adoption of an agency policy." Walsky Constr. Co. v. United States, 20 Cl.Ct. 317, 320 (1990) (quoting Jordan v. Dep't of Jus╜tice, 591 F.2d 753, 774 (D.C.Cir.1978). See also Senate of Puerto Rico v. Dept of Justice, 823 F.2d 574, 585 (D.C.Cir.1987)). And, it must truly be deliberative, reflecting "the give-and-take of the consultative process," rather than constituting a "body of secret law" used to discharge its regulatory duties and its dealings with the public. Coastal States Gas Corp. v. Dept of Energy, 617 F.2d 854, 866-67 (D.C.Cir.1980). Notably, this privilege has been held applicable to drafts of revenue rulings and accompanying back╜ground materials that predate the issuance of the ruling. See, e.g., Arthur Andersen & Co. v. Internal Rev. Serv., 679 F.2d 254, 259 (D.C.Cir.1982) (deliberative process privilege applicable to ruling file); Tax Analysts v. Internal Rev. Serv., 97 F.Supp.2d 13, 16 (D.D.C.2000) (deliberative process privilege applicable to legal memoranda constituting part of the prepublication package for a reve╜nue ruling).


24. See also Zenith Radio Corp. v. United States, 764 F.2d 1577, 1580 (Fed.Cir.1985) ("The execu╜tive privilege . . . protects agency officials' delib╜erations, advisory opinions and recommenda╜tions in order to promote frank discussion of legal or policy matters in the decision-making process"); Abramson v. United States, 39 Fed.Cl. 290, 293 (1997); CACI Field Serv., Inc. v. United States, 12 Cl.Ct. 680, 686 (1987), aff'd, 854 F.2d 464 (Fed.Cir.1988). As noted in Tax Analysts v. Internal Revenue Service, 152 F.Supp.2d 1, 20 (D.D.C.2001), three policies constitute the basis for this privilege:

(1) to encourage open, frank discussions on matters of policy between subordinates and superiors; (2) to protect against premature disclosure of proposed policies before they are finally adopted; and (3) to protect against the public confusion that might result from disclo╜sure of reasons and rationales that were not in fact ultimately the grounds for an agency's action.

See also Coastal States Gas Corp., 617 F.2d at 866.


Without reviewing copies of the ac╜tual materials requested by plaintiff, this court, however, is ill-positioned to determine not only whether any of these materials are privileged, but also whether any of them are even relevant to this proceeding. Moreover, while defendant has generally invoked privi╜leges with respect to these documents, it has not yet specifically met the requirements for claiming the deliberative process privilege, which generally must be invoked by the agency head after actual personal consider╜ation by that officer. 25 Accordingly, this court will order defendant to provide for in camera review: (i) a copy of the IRS' prepublication package for Rev. Rul. 76-28, and any similar associated files; 26 and (ii) a privilege log for those materials indicating, for each document, whether a privilege is being invoked as to a particular document and what that privilege is. In addition, to the extent defendant seeks to invoke the deliberative process privilege with respect to one or more of these documents, it shall provide a formal invocation of the privilege by the Commissioner of Internal Revenue. See Scott Paper Co. v. United States, 943 F.Supp. 501, 502 (E.D.Pa.1996) (allowing gov╜ernment, after a defective invocation of the privilege, a limited additional period of time to properly invoke privilege). Once the court has reviewed these materials, it will deter╜mine which, if any, shall be produced to plaintiff.


25. See United States v. Reynolds, 345 U.S. 1, 7-8, 73 S.Ct. 528, 97 L.Ed. 727 (1953); Walsky Constr. Co., 20 CI.Ct. at 320.

26. In responding to this request initially, defen╜dant asserted that no documents are available that are responsive. The court finds it odd, how╜ever, that the IRS has not retained the prepub╜lication file and associated files for the revenue ruling. If, however, such is truly the case, in lieu of filing the documents themselves, defendant shall file an appropriate affidavit or declaration indicating that the prepublication files and asso╜ciated files for the revenue ruling are not avail╜able.


2. ═ Request Nos. 2-15, seeking all notes, case histories, memoranda, corre╜spondence, records and documents prepared or obtained in connection with the preparation,, issuance or consideration of private letter rul╜ings, technical advice memoranda and General Counsel Memoranda specifically identified therein.

Plaintiff claims that it needs these documents because they "shed light. on the meaning of the [Rev. Rul. 76-28] by demonstrating not only the understanding given it by the Service's team of experts but also how those experts arrived at that understand╜ing:" 27 "Such 'expert testimony'," plaintiff continues, "is certain to assist in giving the Ruling its proper construction."


27. The documents requested relate to: PLR 7945115, 1979 WL 58525 (Aug. 8, 1979); PLR, 8010123, 1979 WL 57304 (Dec. 17, 1979); PLR 8042133, 1980 WL 135185 (July 25, 1980); PLR 8111082, 1980 WL 138007 (Dec. 18, 1980); PLR 8120170, 1981 WL 170982 (Feb. 24, 1981); PLR 8138076, 1981 WL 172741 (June 25, 1981); PLR 8207051, 1981 WL 175040 (Nov. 19, 1981); PLR 8822104 (March 14, 1988); TAM 8714008, 1986 WL 372897 (Dec. 17, 1986); TAM 8534002 (April 4, 1985); TAM 8227068 (April 9, 1982); TAM 8210014, 1982 WL 211219; and GCM 39677, 1987 WL 430197 (Oct. 30, 1987).


In so arguing, however, plaintiff seizes on the few decisions which have-in this court's view erroneously-cited private letter rulings and technical advice memorandum as evi╜dence of the proper construction of the reve╜nue laws. See, e.g., Estate of Reddert v. United States, 925 F.Supp. 261, 267-68 (D.N.J.1996). As discussed above, such deci╜sions ignore, as does plaintiff, both the plain language of section 6110(k)(3) of the Code prohibiting the use or citation of private let╜ter rulings, as well as the rationale underly╜ing that provision. See Shakespeare Co. v. United States, 182 Ct.Cl. 119, 389 F.2d 772, 777 (1968). 28 If, consistent with this provi╜sion and the prevailing jurisprudence, this court may not consider the substance of such rulings in construing the Code, then it pro╜ceeds, a fortiori, that internal IRS materials relating to such rulings are also irrelevant to the issues before this court. Moreover, as plaintiff has not indicated that it ever re╜quested a letter ruling with respect to the issue in question, it is in no position to assert that the requested materials potentially re╜late to an application of the doctrine in IBM, supra. See Shakespeare, 389 F.2d at 777 (IBM inapplicable where "plaintiff has not shown that it ever requested a ruling"); Mars Equipment Corp. v. United States, 1976 WL 1197, *1 (N.D.Ill.1976) (same). Ac╜cordingly, plaintiff has failed to demonstrate that the requested materials are reasonably calculated to lead to the discovery of admissi╜ble evidence. 29 Even were that not the case, this court believes that the requests are un╜duly burdensome and cumbrous, particularly given the likelihood that many of the materi╜als requested would contain tax return infor╜mation protected by section 6103(a).


28. In Shakespeare, the Court of Claims rejected discovery requests and other determinations made with respect to identified Code section and Treasury regulations. In so ruling, the court indicated:

We can find nothing in the record before us to indicate either good cause, relevancy, or that the documents sought appear reasonably cal╜culated to lead to the discovery of admissible evidence, as required by the rules .... Nor is there a showing that the documents sought are material to the issues . . . We say this in partic╜ular because (1) if any letter rulings were con╜trary to the application of the law, they obvi╜ously could not estop the government from correcting them even with respect to the same taxpayer ... and (2) even though a taxpayer receiving a private ruling issued by the Nation╜al Office of the Internal Revenue Service might be entitled to rely upon it until revoked, no court has held a private ruling binding on the government as against other taxpayers.

Shakespeare, 389 F.2d at 777 (citations omitted). See also Davis v. Comm'r , 69 T.C. 716, 720-21, 1978 WL 3424 (1978) (discovery request with respect to letter rulings not reasonably calculated to lead to discovery of admissible evidence).

29. In the court's view, this same conclusion ob╜tains with respect to plaintiff's requests concerning GCM 39677 (Oct. 30, 1987).


For the foregoing reasons, this court con╜cludes that defendant need not respond to these requests for production.

3. ═ Request Nos. 16-17, seeking all notes, case histories, memoranda, correspondence, records and docu╜ments relating to the application of Rev. Rul. 76-28 to the types of pen╜sion benefit plans specifically identi╜fied therein.

Plaintiff asserts that documents ad╜dressing the application of Rev. Rul. 76-28 to contributions to multiemployer and single employer plans "will aid the Plaintiff and the Court in determining whether Rev. Rul. 76╜28 is meant to treat multiemployer and single employer defined benefit plans differently in its application of Section 404(a)(6)."

This request, however, is extraordinarily broad-covering not only written determina╜tions, but also informal communications and all associated documents-and necessarily overlaps, and, in many ways restates in dif╜ferent terms, plaintiffs other production re╜quests; among them those which this court has concluded are inappropriate ( e.g., 2-15) . As the attachments to plaintiffs various mo╜tions and memoranda demonstrate, plaintiff, indeed, already possesses a number of these materials, including various rulings and memoranda relating to the application of Rev. Rul. 76-28, as well as portions of the background files for such rulings and memo╜randa. To the extent plaintiff seeks addi╜tional private letter rulings and technical ad╜vice memoranda, the court believes that it is able to obtain such documents through more convenient, as well as less burdensome and expensive means. To the extent plaintiff seeks less formal applications of the revenue ruling, as well as additional background ma╜terials, it has not demonstrated that those materials are relevant or likely to lead to the discovery of admissible evidence. See Shake╜speare, 389 F.2d at 777.

Accordingly, this court finds that defen╜dant need not respond to these requests for production.

4. ═ Request No. 18, seeking all notes, case histories, memoranda, corre╜spondence, records and documents relating to the application of Section 413(b)(7) of the Code to contribu╜tions claimed as deductions under section 404(a)(6) of the Code or un╜der Rev. Rul. 76-28.

Lastly, plaintiff claims that "[m]aterials re╜lating to the application of [section] 413(B)(7) [of the Code] to deductions reported under [section] 404(a)(6) also will be relevant to show what Rev. Rul. 76-28 does not do." So cast, this request does not differ markedly from the scope of plaintiff's earlier-numbered production requests. To the extent covered by plaintiffs first request, materials on this point may eventually be made available. To the extent covered by plaintiff's other re╜quests, this request is, for similar reasons, inappropriate. Thus, this request is, in one respect, cumulative, and in another, irrele╜vant. Accordingly, defendant need not re╜spond separately to this request.

III. ═ Conclusion

While, consistent with Hickman v. Taylor, supra , some degree of fishing is anticipated by the Federal discovery rules, those rules do not sanction a party to employ essentially a purse seine that indiscriminately sweeps in not only relevant catch, but hosts of irrele╜vant and protected species of information. Indeed, though this ruling is predicated on the particulars stated herein, this court might well have rejected the wide majority of plaintiff's discovery requests based upon the elemental conclusion that, in the context of case that essentially presents a question of law, such discovery is widely disproportion╜ate to plaintiffs needs. See RCFC 26(c). Nonetheless, for the reasons discussed above:

1. ═ For plaintiff's requests for admission numbered 18, 19, 21, 23, 29-36, 38, 41╜58, 62-67, 70, 73-77, 81, 91-95, 98-102, 104, 105, 110, and 114, defendant's re╜sponses and objections are determined to be sufficient and plaintiffs motion in this regard is denied.

2. ═ Defendant's motion for a protective or╜der is granted in regards to all of plaintiffs second set of requests for admission with the exception of num╜bers 115, 116, 117, 162, 163, 165, 198, 200, 202 203, 205, 209, 229 and 230.

a. ═ Defendant shall respond to the fol╜lowing requests: 115, 162, 198, 202, 229, and 230.

b. ═ A conditional protective order is granted for requests 116, 117, 163, 165, 200, 203, 205 and 209. Should defendant deny request 115, then it shall respond to requests 116 and 117. Should defendant deny request 162, then it shall respond to requests 163, 165 and 209. Should defendant deny request 198, then it shall re╜spond to request 200. Should defen╜dant deny request 202, then it shall respond to requests 203 and 205.

3. ═ By December 21, 2001, defendant shall file, under seal, for in camera review (i) a copy of the IRS' prepublication package for Rev. Rul. 76-28, and any associated files; and (ii) a privilege log for those materials indicating, for each document, whether a privilege is being invoked as to that document and what that privilege is.

4. ═ By December 21, 2001, if defendant intends to invoke the deliberative process privilege as to any of the material in the prepublication package for Rev. Rul, 76-28, it shall file a proper invoca╜tion of that privilege signed by the Commissioner of Internal Revenue.

5. ═ Plaintiffs motion to compel responses to its other document production re╜quests is hereby denied.



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