dissenting. I respectfully dissent. I agree with the holding in Baker v. United States, 748 F.2d 1465 (11th Cir. 1984). In my view, the retroactive revocation of a published ruling, even if it technically does not constitute an abuse of discretion, is perceived by the taxpayers as so unfair, that it at least represents extremely poor judgment.
The Commissioner has set forth the objectives and standards of published revenue rulings in Rev. Proc. 78-24, 1978-2 C.B. 503:
SEC. 3. DEFINITIONS.
01. A "revenue ruling” is an official interpretation of the Internal Revenue laws, related statutes, tax treaties, and regulations, by the Internal Revenue Service that has been published in the Internal Revenue Bulletin. Revenue rulings are issued only by the National Office and are published for the information and guidance of taxpayers, Service officials, and others concerned. [Emphasis added.]
* * * * * * *
SEC. 5. OBJECTIVES.
The purpose of publication of revenue rulings and revenue procedures in the Internal Revenue Bulletin is to promote uniform application of the tax laws by Internal Revenue Service employees and to assist taxpayers in attaining maximum voluntary compliance by informing Service personnel and the public of National Office interpretations of the internal revenue laws, related statutes, tax treaties, and regulations, and statements of Service procedures affecting the rights and duties of taxpayers. [Emphasis added.]
[[Image here]]
SEC. 7. FORM AND EFFECT OF PUBLICATION.
01. Revenue Rulings. .* * *
(5) Taxpayers generally may rely upon revenue rulings published in the Bulletin in determining the tax treatment of their own transactions and need not request specific rulings applying the principles of a published revenue ruling to the facts of their particular cases. * * *
The excerpts are included to state the policies of the Commissioner regarding published rulings. They are not cited to show whether the unwary taxpayer who relies upon a published revenue ruling is on notice as to the possibility that a ruling may be revoked retroactively.
If the Commissioner wants to encourage taxpayers to voluntarily comply with the tax law, which indeed all of us who are concerned with the administration of the tax laws should want, he should accord greater weight to that factor than the relatively insignificant loss of revenue occasioned by prospective revocation. The perception of the taxpayers who have appeared before me in these cases is that they have received unfair treatment by the Commissioner, and I find it difficult to argue with their logic. These taxpayers attempted to file correct income tax returns in abiding by a ruling published by the Commissioner, only to find several years later that the Commissioner changed his mind. Such action by the Commissioner requires that the taxpayers either concede or litigate the point and pay not only the tax but accrued interest as well. I agree with the taxpayers that this is unfair treatment, and I fail to see how it promotes the avowed objective of voluntary compliance as enunciated by the Commissioner in sec. 5 quoted above.
Cohen, J., agrees with this dissent.