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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 10, 2003 Decided December 2, 2003
No. 02-5278
TAX ANALYSTS,
APPELLANT
v.
INTERNAL REVENUE SERVICE,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 00cv02914)
William A. Dobrovir argued the cause for appellant. With
him on the briefs was Cornish F. Hitchcock.
Jonathan S. Cohen, Attorney, U.S. Department of Justice,
argued the cause for appellee. With him on the brief were
Roscoe C. Howard Jr., U.S. Attorney, and Teresa T. Milton,
Attorney, U.S. Department of Justice. R. Craig Lawrence,
Assistant U.S. Attorney, entered an appearance.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Before: HENDERSON, TATEL, and ROBERTS, Circuit Judges.
Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge: Acting pursuant to Treasury De-
partment regulations, the Internal Revenue Service refused
to disclose certain written determinations denying or revok-
ing tax exemptions. The district court found the IRS’s
refusal lawful. Because we conclude that the regulations
violate the unambiguous language of the Internal Revenue
Code, we reverse.
I.
Appellant Tax Analysts, a non-profit organization that pub-
lishes news and commentary on tax issues, sought disclosure
of IRS determinations denying or revoking the tax-exempt
status of various organizations. To understand the basis for
this request—Internal Revenue Code section 6110—and the
IRS’s reasons for denying it, we think it helpful to provide
some background on the statutory scheme governing disclo-
sure of tax information.
Congress enacted the Tax Reform Act of 1976, Pub. L. No.
94–455, 90 Stat. 1520 (1976), in response to concerns about
possible government misuse of tax information. See S. REP.
NO. 94–938, pt. 1, at 317 (1976), reprinted in 1976
U.S.C.C.A.N. 2897, 3746–47 (noting that questions had been
raised with respect to ‘‘disclosure of tax information to the
White House’’ and ‘‘whether tax returns and tax information
should be used for any purposes other than tax administra-
tion’’). As amended by that Act and subsequent legislation,
the Internal Revenue Code protects the confidentiality of tax
returns and return information, such as taxpayers’ source of
income, net worth, and tax liability. At the same time, the
Code requires the IRS to disclose certain information. Two
Code provisions governing disclosure of tax-related informa-
tion are relevant here: sections 6104 and 6110. See 26 U.S.C.
§§ 6104, 6110 (2000 & Supp. III 2003).
Section 6110 applies to written determinations, i.e., IRS
responses to taxpayer inquiries regarding how tax laws apply
3
to particular facts. See id. § 6110(b)(1)(A) (defining ‘‘written
determination’’ as a ‘‘ruling, determination letter, technical
advice memorandum, or Chief Counsel advice’’). Section 6110
provides: ‘‘Except as otherwise provided in this section, 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.’’ Id. § 6110(a). In order to balance
the competing values of public disclosure and taxpayer priva-
cy, however, section 6110 requires that before making a
written determination available for public inspection, the IRS
must delete certain identifying information, i.e., ‘‘the names,
addresses, and other identifying details of the person to
whom the written determination pertainsTTTT’’ Id.
§ 6110(c)(1).
Although section 6110 governs most written determina-
tions, it does not apply to all. Section 6110(l )(1)—one of the
two provisions at issue in this case—provides that section
6110’s disclosure rule ‘‘shall not apply to TTT any matter to
which section 6104 TTT applies.’’ Id. § 6110(l )(1). Section
6104 makes available for public inspection tax information
relating to specified entities. One of section 6104’s subsec-
tions, 6104(a)(1)(A)—the other provision at issue in this
case—requires the IRS to disclose documents relating to tax-
exempt organizations, including applications for exempt sta-
tus, supporting materials, and IRS determinations granting
those exemptions. Id. § 6104(a)(1)(A). Specifically, subsec-
tion 6104(a)(1)(A) states:
If an organization TTT is exempt from taxation TTT
for any taxable year TTT, the application filed by the
organization with respect to which the Secretary [of
the Treasury] made his determination that such
organization was entitled to exemption TTT or notice
of status filed by the organization TTT, together with
any papers submitted in support of such application
or notice, and any letter or other document issued
by the Internal Revenue Service with respect to
4
such application or notice shall be open to public
inspectionTTTT
Id. Unlike section 6110, section 6104 contains no provision
for redacting identifying information; therefore, the IRS
must fully disclose determinations granting tax-exempt sta-
tus.
Two Treasury regulations add another layer to this statuto-
ry scheme. Unlike the Code’s general mandate requiring
disclosure of written determinations in redacted form, see id.
§ 6110(a), and its more specific requirement that the IRS
disclose determinations granting tax-exempt status in unre-
dacted form, see id. § 6104(a)(1)(A), the regulations provide
that the IRS will not disclose determinations denying or
revoking tax-exempt status in any form. The first regulation,
Treas. Reg. § 301.6110–1(a), provides that section 6104 ap-
plies not only to determinations granting tax-exempt status,
but also to denials and revocations:
Matters within the ambit of section 6104 include:
Any application filed with the Internal Revenue
Service with respect to the qualification or exempt
status of an organization TTT [and] any document
issued by the Internal Revenue Service in which the
qualification or exempt status of an organization TTT
is granted, denied or revokedTTTT
Id. § 301.6110–1(a) (1977). The second regulation, Treas.
Reg. § 301.6104(a)–1(i), provides that the IRS will not dis-
close such denials and revocations at all:
Some determination letters and other documents
relating to tax exempt organizations that are not
open to public inspection under section 6104(a)(1)(A)
and this section are nevertheless within the ambit of
section 6104 for purposes of section 6110. These
determination letters and other documents are
therefore not available for public inspection under
either section 6104 or section 6110. They include
but are not limited to—
(1) Unfavorable rulings or determination letters TTT
issued in response to applications for tax exemption,
(2) Rulings or determination letters revoking or
modifying a favorable determination letter TTT,
5
(3) Technical advice memoranda TTT relating to a
disapproved application for tax exemption or the
revocation or modification of a favorable determina-
tion letterTTTT
Id. § 301.6104(a)–1(i) (1982).
On the basis of these two regulations, the IRS denied Tax
Analysts’s request. After exhausting its administrative reme-
dies, Tax Analysts filed suit in the U.S. District Court for the
District of Columbia, arguing that the regulations conflict
with IRC section 6110’s plain language. The IRS responded
that section 6110 is ambiguous and that the Treasury regula-
tions reflect a reasonable interpretation of it. The district
court granted summary judgment to the IRS, sustaining the
agency’s refusal to disclose the requested information. See
Tax Analysts v. IRS, 215 F. Supp. 2d 192, 194 (D.D.C. 2002).
Tax Analysts now appeals. Our review is de novo. Nat’l
Mining Ass’n v. Fowler, 324 F.3d 752, 756 (D.C. Cir. 2003).
II.
Because Tax Analysts claims that the Treasury regulations
violate the Internal Revenue Code, we proceed in accordance
with Chevron U.S.A. Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984). We first ask, as always,
‘‘whether Congress has directly spoken to the precise ques-
tion at issue.’’ Id. at 842. If it has, both we and the IRS
‘‘must give effect to the unambiguously expressed intent of
Congress.’’ Id. at 842–43. We evaluate the statute’s clarity
without deference to the agency’s interpretation. See SBC
Communications Inc. v. FCC, 138 F.3d 410, 418–19 (D.C. Cir.
1998). Only if we find the statute either silent or ambiguous
with respect to the question at issue do we proceed to
Chevron’s second step, asking whether the agency’s interpre-
tation is ‘‘based on a permissible construction of the statute.’’
Chevron, 467 U.S. at 842–43.
At the outset, we note that the IRS does not argue that
documents denying or revoking tax-exempt status are not
‘‘written determinations’’ within the meaning of section 6110.
6
Instead, it argues that such determinations fall within the
exception to section 6110’s disclosure provisions. According
to the IRS, section 6110(l )(1)’s phrase ‘‘matter to which
section 6104 TTT applies’’ is ambiguous and can be understood
to include any document pertaining to an organization’s quali-
fication for tax-exempt status. In other words, section
6110(l )(1) can be read to mean that section 6104 ‘‘applies’’ not
only to determinations granting tax-exempt status, as provid-
ed for in that section, but also to determinations denying or
revoking tax-exempt status. Thus, the IRS argues, its inclu-
sion of denials and revocations ‘‘within the ambit’’ of section
6104 represents a reasonable interpretation of section 6110—
an interpretation to which we owe Chevron deference.
Tax Analysts has a very different view of the statute.
Seeing nothing ambiguous in section 6110, Tax Analysts
argues that the phrase ‘‘matter to which section 6104 TTT
applies’’ can cover nothing more than what section 6104
expressly covers, i.e., documents relating to exempt organiza-
tions. According to Tax Analysts, therefore, determinations
denying or revoking tax-exempt status fall under section 6110
and must be disclosed in redacted form.
To resolve this debate, we use the ‘‘traditional tools of
statutory interpretation—text, structure, purpose, and legisla-
tive history.’’ Pharm. Research & Mfrs. of Am. v. Thomp-
son, 251 F.3d 219, 224 (D.C. Cir. 2001). Beginning with text,
we discern no ambiguity. Section 6110 is straightforward: it
requires the redacted disclosure of written determinations
but exempts ‘‘any matter to which section 6104 TTT applies.’’
26 U.S.C. § 6110(l )(1). Subsection 6104(a)(1)(A), in turn,
covers only tax-exempt organizations. It begins by expressly
limiting its scope to exempt organizations—‘‘[i]f an organiza-
tion TTT is exempt from taxation’’—and then requires full
disclosure of determinations granting tax-exempt status. Id.
§ 6104(a)(1)(A). Subsection 6104(a)(1)(A) says nothing about
documents relating to non-exempt organizations. See id.
Undaunted, the IRS insists that Congress intended section
6104 to govern determinations denying or revoking tax-
7
exempt status. According to the IRS, because subsection
6104(a)(1)(A) requires disclosure of determinations granting
tax exemptions and says nothing with respect to denials and
revocations, one can conclude through ‘‘negative implication’’
that Congress did not intend disclosure of denials or revoca-
tions. We disagree.
Subsection 6104(a)(1)(B), the provision immediately follow-
ing subsection 6104(a)(1)(A), demonstrates that Congress
knew exactly how to refer to denials and revocations when it
so intended. That subsection addresses disclosure of applica-
tions and written determinations regarding tax exemptions
for certain pension, retirement, profit-sharing, or stock bonus
plans. See id. § 6104(a)(1)(B). It requires that the IRS
make available for public inspection ‘‘any application’’ filed for
tax-exempt status, id. § 6104(a)(1)(B)(ii), ‘‘any papers’’ sub-
mitted in support of that application, id. § 6104(a)(1)(B)(iii),
and ‘‘any document’’ issued by the IRS addressing the exemp-
tion, id. § 6104(a)(1)(B)(iv). Unlike subsection 6104(a)(1)(A),
which by its terms covers only determinations regarding
‘‘exempt organizations,’’ subsection 6104(a)(1)(B) requires the
IRS to disclose all tax exemption determinations—whether
they grant, deny, or revoke the exemption. We thus see no
way to view Congress’s express focus on tax-exempt organiza-
tions in subsection 6104(a)(1)(A) as evidence of congressional
intent to include documents relating to non-exempt organiza-
tions as well. Any other conclusion would be anomalous, for
it would mean that Congress wanted the term ‘‘matter’’ to
extend to documents not mentioned in subsection
6104(a)(1)(A) but expressly included in subsection
6104(a)(1)(B), the immediately following provision. See Fed.
Election Comm’n v. Nat’l Rifle Ass’n of Am., 254 F.3d 173,
194 (D.C. Cir. 2001) (‘‘[W]here Congress includes particular
language in one section of a statute but omits it in another
section of the same Act, it is generally presumed that Con-
gress acts intentionally and purposely in the disparate inclu-
sion or exclusion.’’ (alteration in original) (quoting Russello
v. United States, 464 U.S. 16, 23 (1983)) (internal quotation
marks omitted)).
8
Given the clarity of the statute’s language and structure,
we have no need to resort to legislative history. See AT&T
Corp. v. FCC, 317 F.3d 227, 235 (D.C. Cir. 2003) (noting that
the court does not ‘‘resort to legislative history to cloud a
statutory text that is clear’’ (quoting Ratzlaf v. United States,
510 U.S. 135, 147–48 (1994))). This is particularly true since
the only legislative history the IRS cites post-dates passage
of the Tax Reform Act. See Consumer Prod. Safety Comm’n
v. GTE Sylvania, Inc., 447 U.S. 102, 118 n.13 (1980) (‘‘[E]ven
when it would otherwise be useful, subsequent legislative
history will rarely override a reasonable interpretation of a
statute that can be gleaned from its language and legislative
history prior to its enactment.’’); N. Broward Hosp. Dist. v.
Shalala, 172 F.3d 90, 98 (D.C. Cir. 1999) (citing cases in which
the Supreme Court has observed that subsequent legislative
history is ‘‘an unreliable guide to legislative intent’’).
As mentioned above, Congress passed the Tax Reform Act
to protect taxpayer privacy while requiring the IRS to dis-
close written determinations. Our holding advances that
purpose: the IRS must disclose determinations denying or
revoking tax exemptions, but do so in redacted form, thus
protecting the privacy of the organizations involved. The
Treasury regulations, in contrast, keep denials and revoca-
tions completely secret, preventing the very monitoring of the
IRS that the Tax Reform Act was designed to facilitate. See
S. REP. NO. 94–938, pt. 1, at 305–06, reprinted in 1976
U.S.C.C.A.N. 2897, 3735 (explaining that the Tax Reform Act
of 1976 would require the IRS to disclose written determina-
tions because ‘‘the secrecy’’ surrounding those documents, in
particular IRS rulings, had ‘‘generated suspicion that the tax
laws [were] not being applied on an even-handed basis’’ and
because disclosure would ‘‘tend to increase the public’s confi-
dence that the tax system operates fairly’’).
For the foregoing reasons, we hold that the portions of
Treasury regulations sections 301.6110–1(a) and 301.6104(a)–
1(i) that include denials and revocations ‘‘within the ambit of
section 6104’’ and prevent their disclosure violate section
9
6110’s plain language. The judgment of the district court is
reversed.
So ordered.