concurring: I write to express my disagreement with that part of the majority opinion which holds that this Court has no jurisdiction to consider the fringe benefit moratorium.
It is inherent in the exercise of our jurisdiction “to redetermine the correct amount of the deficiency”1 or to determine an overpayment of tax,2 that we take into account any Federal statute which bears on any issue before us. The fringe benefit moratorium is such a Federal statute.
The majority concludes that this statute relates only to the administrative procedures of an executive agency, and that because it does not expressly confer jurisdiction upon this Court to enforce the moratorium, we lack enforcement jurisdiction. I agree that we lack specific enforcement jurisdiction. But it does not follow that the statute has no bearing on the outcome of this case.
The majority refuses to consider the possible substantive effect of this statute. In my opinion, the moratorium, as a congressional direction to respondent to freeze its ruling position on fringe benefits, may make relevant in a proceeding before this Court respondent’s ruling position during the year in issue. In addition, the effect, if any, of the moratorium on applicable law should be considered. Finally, violation of the moratorium, as claimed by petitioners, might be sufficient to classify respondent’s action in issuing the statutory notice as arbitrary.
As Judge Swift points out in his dissent, respondent’s administrative position can be, under appropriate circumstances, relevant to our determination of a petitioner’s tax liability. While respondent’s administrative position is generally considered to be simply his litigating position (Crow v. Commissioner, 85 T.C. 376, 389 (1985)), in rare circumstances the position has risen to the level of a statute. See, e.g., Commissioner v. Stedges, 386 U.S. 287 (1967). This occurs when there is evidence of “a consistent and longstanding administrative position with prior congressional or judicial approval.” Crow v. Commissioner, supra. The evidence of respondent’s prior administrative position consists of private letter rulings and technical advice memoranda, none of which were required to be or were published prior to the addition of section 6110 to the Code in 1976. Moreover, by that statute, such documents do not have precedential status (sec. 6110(j)(3)) and should not be taken into account as part of the applicable law. The doctrine of Commissioner v. Stedges, supra, is not applicable here.
An additional issue for our consideration is whether the moratorium in effect binds this Court to respondent’s ruling position in 1977. It is clear from the statute that Congress did not intend to incorporate respondent’s ruling position on fringe benefits into the Internal Revenue Code for the moratorium period.3 Therefore, this legislation simply cannot be construed as incorporating into the Internal Revenue Code respondent’s ruling position on fringe benefits.
Although petitioners’ contentions lack desirable clarity, they appear to argue that issuance of this statutory notice was contrary to the spirit of the statute since its purpose is perhaps frustrated by respondent’s audit activity. Thus, respondent’s action in issuing the statutory notice possibly could be characterized as arbitrary. Helvering v. Taylor, 293 U.S. 507 (1935). See also Riland v. Commissioner, 79 T.C. 185, 201 (1982). The relief flowing from that characterization would only be a shifting to respondent of the burden of going forward with the evidence. In this case, the record is complete and a shifting of the burden of going forward would have had no bearing on the outcome.
For the foregoing reasons, I agree with the result reached by the majority. But we should not allow an imprecision in petitioners’ statement of their position to blind us to fact that the fringe benefit moratorium is a Federal statute pertinent to the issues in this case. Petitioners are entitled to have its effect fully explored by the Court.
Chabot, Nims, Hamblen, Jacobs, and Gerber, JJ., agree with this concurring opinion.Sec. 6214(a).
Sec. 6612(b).
Congress could have enacted into law respondent’s Oct. 1, 1977, position on various fringe benefits for the moratorium period but there is no evidence of a congressional intent to do so. The legislation itself is plain and unambiguous. Fringe benefit regulations are not to be issued. The legislative history perhaps would extend the freeze to revenue rulings and revenue procedures. If the “etc.” after the words “revenue procedures” is given its broadest scope, perhaps issuance of private letter rulings on fringe benefits would be prohibited.