Past Moratoria on Tax Guidance and Regulations(?)

By: Sam Brunson

On my previous post talking about the the IRS’s announcement that it was putting a moratorium on issuing new regulations and formal guidance, a commenter asked if it was such an odd thing for a new Administration to temporarily pause guidance. After all, who wants to issue guidance before the new Administration’s people are in place and agenda is set, lest the new Administration change its priorities and positions in the coming months?

I didn’t remember any such (formal, at least) pause in 2009, but, when I got home, I decided to look back a few years. I looked at new regulations and revenue rulings in the first month of the Obama, George W. Bush, Clinton, and Reagan presidencies (I didn’t bother with George H.W. Bush, because that was a Republican to Republican switch). Also, because we don’t know how long the current limitations on regulations and other guidance will last, I also expanded my search of revenue rulings for the first three months of the new administrations.[fn1]

(Quick technical part: for regulations, I searched the Westlaw “Treasury Decisions” database. For Obama, the search was advanced: DA(aft 01-20-2009 & bef 02-22-2009) for the first month, and ended as bef 04-22-2009) for the three-month search. I shifted the search to the appropriate year for each of the presidents.)

So what did I find?

Obama

The Treasury Decisions search gave me 20 hits. The last ten had titles, but no content. Of the first ten, three were substantive regulations and seven were corrections to regulations.

My one-month revenue rulings search yielded two, both of which were the type of administrative ruling that the IRS says it will keep issuing. My three-month search found 8 rulings, at least two of which were substantive.[fn2]

Bush

The Treasury Decisions search gave me 14 hits. The last seven were blank. Of the first seven, one was a final reg, two were temporary regs, and the other four were corrections.

On the revenue ruling front: in the first month, the IRS issued four rulings, at least one of which was substantive. In the first three months, there were 13 rulings, though I didn’t click on any more substantive ones.

Clinton

The Treasury Decisions search came up with 29 hits; the final 14 were blank. Of the first 15, one was temporary, one was final, and 13 were corrections.

For the first month, there were nine revenue rulings, though they looked mostly administrative. In the first three months, though, there were 23 regulations, and at least eight were substantive.

Reagan

Between January and February 21, 1981, there were 32 hits on the Treasury Decisions search. 17-32 were blank, but, of the first 16, 12 were final regs, two were temporary, and two were corrections.

Revenue rulings? In the first month, 56. In the first three, 113. And I’ll confess that, faced with the number of early-Reagan revenue rulings, I didn’t click on a single one.

Conclusions

I don’t actually have enough relevant data to come to any conclusions here. It looks like there’s no history of entirely refusing to issue regulations and other guidance in the first month(s) of a new administration; at the same time, that early period of a new administration doesn’t issue a whole ton of new guidance. To really see the effect of a new administration on IRS guidance and Treasury regulations, it would be valuable to look at how much guidance is generally issued during those months in years that don’t have a change of administration, a project I may take on down the line sometime, but which I’m not going to do just yet.

I do think, though, that this indicates that this idea that the IRS will implement a formal policy of not issuing guidance is something new.

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[fn1] I could have done the same for regulations, but given that this is blog-level analysis, the benefits of doing so didn’t seem to outweigh the additional work involved, so I didn’t.

[fn2] I didn’t click on every ruling. If it said someting like “Interest Rates; Underpayments and Overpayments,” I assumed it was an administrative ruling. I didn’t count a ruling as substantive unless I clicked on it and made sure it was.