United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 19, 2007 Decided July 24, 2007
No. 06-5136
TAX ANALYSTS,
APPELLEE
v.
INTERNAL REVENUE SERVICE,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 05cv00934)
Francesca U. Tamami, Attorney, United States Department
of Justice, argued the cause for the appellant. Jeffrey A. Taylor,
United States Attorney, and Jonathan S. Cohen, Attorney, were
on brief. Michael J. Martineau, Attorney, entered an
appearance.
Cornish F. Hitchcock argued the cause for the appellee.
William A. Dobrovir was on brief.
Before: HENDERSON, ROGERS and KAVANAUGH, Circuit
Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: Tax Analysts
brought this action to compel the Internal Revenue Service
2
(IRS) to disclose, inter alia, e-mails containing legal advice that
lawyers in the IRS Office of the Chief Counsel (OCC) sent to
IRS field personnel. The district court granted summary
judgment to Tax Analysts on the ground that the documents
sought constitute “Chief Counsel advice” (CCA) which the IRS
is required to disclose under 26 U.S.C. § 6110. Tax Analysts v.
IRS, C.A. No. 05-0934, slip op. at 1 (D.D.C. Feb. 27, 2006).
The IRS contends the statute’s plain language makes clear that
such advice is not CCA or, alternatively, if the language is
ambiguous, that the IRS has reasonably construed it to exclude
the e-mails from CCA. We conclude that the plain statutory
language mandates that the IRS disclose the e-mails.
I.
Section 6110 of Title 26 of the United States Code provides
generally with regard to IRS documents that “the text of any
written determination and any background file document
relating to such written determination shall be open to public
inspection at such place as the Secretary may by regulations
prescribe.” 26 U.S.C. § 6110(a). Until 1998 the statute defined
“written determination” as “a ruling, determination letter, or
technical advice memorandum.” 26 U.S.C. § 6110(b)(1) (1998).
In Tax Analysts v. IRS, 117 F.3d 607 (D.C. Cir. 1997), we held
that this definition required the IRS to disclose as written
determinations “Field Service Advice” memoranda (FSAs),
which were prepared by lawyers in the IRS’s Office of Chief
Counsel (OCC) in response to requests for “legal guidance,
usually with reference to the situation of a specific taxpayer,”
“from field personnel of either the [OCC] or the IRS, such as
field attorneys, revenue agents, and appeals officers,” Tax
Analysts, 117 F.3d at 609.
In 1998, the Congress codified the court’s holding in Tax
Analysts by amending section 6110 in two important respects.
First, it amended the definition of “written determination” to
expressly include “Chief Counsel advice.” Internal Revenue
3
Service Restructuring and Reform Act, Pub. L. No. 105-206,
§ 3509(a) (1998). Second, it added subsection 6110(i) entitled
“Special rules for disclosure of Chief Counsel advice,” which
defines “Chief Counsel advice” as
written advice or instruction, under whatever name or
designation, prepared by any national office component
of the Office of Chief Counsel which—
(i) is issued to field or service center employees of the
Service or regional or district employees of the Office
of Chief Counsel; and
(ii) conveys—
(I) any legal interpretation of a revenue
provision;
(II) any Internal Revenue Service or Office of
Chief Counsel position or policy concerning a
revenue provision; or
(III) any legal interpretation of State law, foreign
law, or other Federal law relating to the
assessment or collection of any liability under a
revenue provision.
Id. § 3509(b)(i)(1)(A) (codified at 26 U.S.C. § 6110(i)(1)(A)).
In September 1998, OCC issued a “Questions and Answers”
document addressing issues raised by the new CCA disclosure
provisions in section 6110. Regarding e-mail advice from OCC
lawyers, the document stated that, although “e-mail is a
writing,” if an e-mail “consumed less than two hours of research
and preparation, such that [a lawyer] need not open a case file,
then, the e-mail is to be treated like informal telephone advice
(which is memorialized in writing, also),” noting that “[t]he
legislative history to section 3509 clarifies that informal advice
4
is not considered to be CCA.” JA 59; see also Chief Counsel
Directives Manual (CCDM) Exh. 33.1.2-1 (JA 102).
On June 7, 2004, Tax Analysts sent a letter to OCC
requesting disclosure under section 6110 of, inter alia, “all
written legal advice documents, whether or not styled CCA,
prepared by National Office components of OCC for the field,
and which have been withheld from public disclosure on the
ground that such written advice ‘can be rendered in less than
two hours,’ or that such documents ‘can be prepared in less than
two hours.’ ” Decl. of Assoc. Chief Counsel Deborah A. Butler
¶ 22 (JA 32).1 The letter also included a request under the
Freedom of Information Act (FOIA), 5 U.S.C. § 552, for records
regarding the two-hour disclosure rule.
On July 12, 2004, the IRS responded to the section 6110
request with a letter stating that the request “ ‘raises several
issues that we are investigating’ and that ‘[a]t this time we are
not in a position to advise as to a timetable for response.’ ”
Compl. ¶ 16(a) (alteration in original). In a follow-up e-mail
dated February 4, 2005, the IRS advised Tax Analysts it would
not respond to the request until after it completed processing
another request from Tax Analysts, which it did not expect to
occur until September 30, 2005. In response to the FOIA
request, the IRS sent a series of letters requesting additional time
to respond. In a letter dated April 21, 2005, the IRS stated it
would “ ‘try to respond to the FOIA portion of the [amended]
request by May 23, 2005.’ ” Id. ¶ 17 (alteration in original).
On May 10, 2005, Tax Analysts, having received no
documents from the IRS, filed this action in the district court.
1
The letter also sought disclosure of “all CCA withheld from
disclosure on the ground that the document transmitted was a pre-
existing legal memorandum.” Compl. ¶ 15. On appeal Tax Analysts
treats these documents as “within the category of ‘less-than-two-hour’
advice.” Appellee’s Br. at 7 n.4.
5
On February 27, 2006, the district court granted summary
judgment in Tax Analysts’ favor on the section 6110 request,
concluding that “written advice rendered to regional employees
by attorneys in the IRS Office of Chief Counsel’s national office
in less than two hours is ‘Chief Counsel advice’ falling within
the public inspection requirements of § 6110.” Tax Analysts,
C.A. No. 05-0934, slip op. at 1.2
The IRS filed a notice of appeal on April 27, 2006.
II.
The court reviews the district court’s grant of summary
judgment de novo. Holly Sugar Corp. v. Johanns, 437 F.3d
1210, 1212-13 (D.C. Cir. 2006); Milk Train, Inc. v. Veneman,
310 F.3d 747, 753 (D.C. Cir. 2002). “The burden of proof with
respect to the issue of disclosure of any information shall be on
the Secretary and any other person seeking to restrain
disclosure.” 26 U.S.C. § 6110(f)(4)(A). Applying these
standards, we conclude that the IRS has not met its burden and
that Tax Analysts is, as the district court held, entitled under
section 6110 to disclosure of the e-mails the IRS withheld from
disclosure under its two-hour rule.
The district court correctly concluded that the plain language
of section 6110 requires disclosure of the e-mails. Section
6110(a) unequivocally requires that the IRS make available for
public inspection “the text of any written determination and any
background file document relating to such written
determination.” Id. § 6110(a) (emphasis added). As amended
2
The district court granted summary judgment in favor of the IRS
on the FOIA request, concluding that “the Office of Chief Counsel
properly withheld a number of requested documents under the
deliberative process privilege of 5 U.S.C. § 552(b)(5).” Tax Analysts,
C.A. No. 05-0934, slip op. at 1. Tax Analysts does not appeal the
FOIA ruling.
6
in 1998, section 6110 defines “written determination” to include
“Chief Counsel advice,” id. § 6110(b)(1)(A), and defines “Chief
Counsel advice,” in turn, to include “written advice or
instruction . . . prepared by any national office component of the
Office of Chief Counsel which . . . is issued to field or service
center employees of the Service or regional or district
employees of the Office of Chief Counsel” and “conveys . . . any
legal interpretation of a revenue provision,” id. § 6110(i)(1)(A).
The documents Tax Analysts seeks readily fit this description.
They are written interpretations of revenue provisions prepared
by lawyers in OCC and sent to field personnel. Nonetheless, the
IRS has raised two interpretational arguments to support
withholding the documents—each hinging on the formality of
the advice provided.
Before the district court, the IRS argued primarily that
“issued,” as used in section 6110(i)(1)(A)(i), is ambiguous and
should be interpreted to require that the advice be formally
issued by OCC as its official position and therefore cannot apply
to the “informal” written advice Tax Analysts seeks. On appeal,
the IRS largely passes over the “issued” argument urged below
and relies instead on its interpretation of the statutory term
“component.” According to the IRS, the informal advice of
individual lawyers employed by a national office component
“without supervisory review,” Appellant’s Br. at 22, cannot be
considered to be advice of a “component” of OCC because a
“ ‘component’ is an institutional entity, such as a Division, or
perhaps a Branch within a Division,” id. at 21. Thus, the IRS
maintains, the informal, unreviewed advice of an individual
lawyer is not “prepared by any national office component,” 26
U.S.C. § 6110(i)(1)(A), and therefore not subject to the
disclosure requirement in section 6110. We find neither of the
IRS’s arguments persuasive.
As a preliminary matter, Tax Analysts contends that the
“component” argument, which the IRS acknowledges “was not
7
emphasized below,” Appellant’s Br. at 20 n.5, has been waived
because it was not adequately presented to the district court. See
United States ex rel. Hampton v. Columbia/HCA Healthcare
Corp., 318 F.3d 214, 219 (D.C. Cir. 2003) (“Arguments not
presented to the district court will not be heard on appeal absent
exceptional circumstances, and there are none in this case.”
(citing District of Columbia v. Air Fla., Inc., 750 F.2d 1077,
1084-85 (D.C. Cir. 1984))). Nonetheless, we assume, without
deciding, that the argument has not been waived and we address,
and reject, both arguments on the merits. See Moore v.
CapitalCare, Inc., 461 F.3d 1, 9 n.9 (D.C. Cir. 2006) (court not
required to decide waiver issue because, assuming argument was
preserved, appellant lost on merits).
The common meaning of “issue,” as a transitive verb, is
“[t]o give exit to; to send forth, or allow to pass out; to let out;
to emit; to discharge.” VIII Oxford English Dictionary 137 (2d
ed.1989) (OED); and we see no reason this meaning should not
apply here. See Pioneer Inv. Servs. Co. v. Brunswick Assocs.
Ltd. P’ship, 507 U.S. 380, 388 (1993) (“Courts properly assume,
absent sufficient indication to the contrary, that Congress
intends the words in its enactments to carry ‘their ordinary,
contemporary, common meaning.’ ” (quoting Perrin v. United
States, 444 U.S. 37, 42 (1979))). While it is true that in context,
the word can mean “[t]o give or send out authoritatively or
officially; to send forth or deal out in a formal or public
manner,” VIII OED at 137, nothing in the statute indicates that
this meaning was intended here or that any formal approval or
imprimatur is required. In fact, section 6110 itself makes clear
that CCA encompasses not only a formal “Internal Revenue
Service or Office of Chief Counsel position or policy concerning
a revenue provision” but “any legal interpretation of a revenue
provision.” 26 U.S.C. § 6110(i)(1)(A)(ii)(I)-(II) (emphasis
added). Thus, as is ordinarily the case, “issued” in section 6110
means simply “sent forth.”
8
Similarly, under common parlance—and common agency
principles—the phrase “prepared by any national office
component of the Office of Chief Counsel” includes advice
prepared by an individual OCC lawyer whether the lawyer
himself be considered a “component” of OCC, see III OED at
620 (defining “component” as “constituent element or part”), or
simply a member of an institutional component—such as the
Office of the Associate Chief Counsel—who prepares the
opinion on behalf of the institutional component, see generally
CCDM § 33.1.2 (JA 96 et seq.) (“Chief Counsel’s Legal Advice
Program”). The Chief Counsel Directives Manual itself
recognizes this plain meaning by treating unreviewed advice
prepared by a single OCC lawyer as advice prepared by a
“national component” of OCC, distinguishing between CCA
(disclosure of which is required) and non-CCA (disclosure of
which is not required) based on the amount of time spent in
preparation and not on the existence vel non of supervisory
review. See, e.g., id. exh. 33.1.2-1 (JA 102) (designating “legal
advice that can be rendered in less than two hours by a National
Office component” as “informal” “legal advice” that “need not
be released to the public”) (emphasis added); id.
§ 33.1.3.1.1(2)(c) (JA 105) (“[E]mail responses to questions
from the Field, if the response involves less than two hours of
research and preparation . . . is considered informal advice and
is not CCA. Conversely, if the time expended in researching
and preparing an email response consumes two or more hours,
then the email is not informal advice and may be CCA if it
meets the definition [of CCA].”). We note again that section
6110 expressly classifies as CCA not only a writing that conveys
an official “position or policy concerning a revenue provision”
but also one that contains “any legal interpretation of a revenue
provision.” 26 U.S.C. § 6110(i)(1)(A)(ii)(I)-(II).
In sum, the language of section 6110 expressly and broadly
requires disclosure as Chief Counsel advice, without further
qualification, of “written advice or instruction, under whatever
9
name or designation, prepared by any national office component
of the Office of Chief Counsel . . . issued to field or service
center employees of the Service or regional or district
employees of the Office of Chief Counsel [which] conveys . . .
any legal interpretation of a revenue provision.” Id.
§ 6110(i)(1)(A) (emphases added). It requires no particular
form or formality. Nor does it distinguish between advice a
lawyer renders in less than two hours and advice that takes
longer than two hours to prepare. Thus, given the broad
definition of “Chief Counsel advice” in section 6110(i)(1)(A),
we believe that the temporal distinction the IRS draws in its
two-hour disclosure rule is contrary to the unequivocal statutory
directive that a “written determination,” defined to include
“Chief Counsel advice” without exception, “shall be open to
public inspection,” 26 U.S.C. § 6110(a). The IRS cannot,
therefore, consistent with the plain language of 26 U.S.C.
§ 6110, rely on the two-hour rule to avoid disclosing legal
advice rendered in under two hours.3
For the foregoing reasons, we conclude that the documents
Tax Analysts seeks plainly fall within the statutory definition of
“Chief Counsel advice,” which 26 U.S.C. § 6110 requires be
available for inspection. Accordingly, we affirm the district
court’s grant of summary judgment in favor of Tax Analysts.
So ordered.
3
Because the meaning of section 6110 is plain on its face, we
decline the IRS’s invitation to plumb the legislative history to
ascertain congressional intent. As the district court observed, “courts
‘ “do not resort to legislative history to cloud a statutory text that is
clear.” ’ ” Tax Analysts, C.A. No. 05-0934, slip op. at 12 (quoting
AT&T Corp v. FCC, 317 F.3d 227, 235 (D.C. Cir. 2003) (quoting
Ratzlaf v. United States, 510 U.S. 135, 147-48 (1994))).