Andrew Mitchel LLC

International Tax Blog - New and Interesting International Tax Issues

A Circumvention of the Spirit of the Law?


Code § 7805(e)(2) provides: “Any temporary regulation shall expire within 3 years after the date of issuance of such regulation.”  This rule was enacted in 1988. 

I can’t locate any materials as to why this rule was put in place.  I have always assumed that Congress must have felt that the Treasury Department had abused its authority to issue “temporary” regulations and then left them in place indefinitely, thereby effectively making the regulations permanent.

On March 20, 2007 the I.R.S. and the Treasury Department published temporary regulations § 1.368-1T(e)(2) dealing with the continuity of interest test applicable to Code § 368(a) reorganizations.  Under Code § 7805(e)(2), the temporary regulations were set to expire today.

Yesterday the I.R.S. published Notice 2010-25.  The Notice provides that:

The Service and the Treasury intend to issue final regulations, but do not expect to issue such regulations prior to the expiration of the temporary regulations.  The purpose of this notice is to provide taxpayers with interim guidance applicable to the period between the expiration of the temporary regulations and the issuance of new regulations.

The temporary regulations were generally taxpayer friendly.  Thus, it is commendable that the I.R.S. and the Treasury Department are extending the more liberal continuity of interest rules.

However, I wonder how long the Notice will be in place before final regulations are issued.  I am aware of some notices that have been outstanding for more than 20 years without regulations being issued (e.g., Notice 88-22).  To me, it seems like the I.R.S. and the Treasury Department may be circumventing the spirit of the law in Code § 7805(e)(2) by issuing notices that in many ways simply extend the temporary regulations.

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