On U.S.C. Titles, Positive Law and NonPositive Law (4/5/21)

In today’s weekly offering of Bryan Camp’s series on Lessons from the Tax Court, Passport Revocation Act Differs From Codification (Tax Prof Blog 4/5/21), here, Bryan gets into the difference between laws and codifications.  The Fast Act of 2015 imposed a regime for encouraging taxpayers to deal with delinquent taxes by imposing potential passport revocation or denial consequences for tax debt that the Treasury certifies to the State Department as being seriously delinquent.  The regime consists of  two key separate acts:

(i) an act by the IRS (the certification to the State Department of seriously delinquent tax debt, which Bryan says is “the Act is codified in title 26”) and 

(ii) an act by the State Department after receiving the IRS certification (action to revoke or deny a passport, which Bryan says "is codified in title 22").

For those not steeped in some of the arcana of legislation, there is a key difference between U.S.C. titles that have been enacted into positive law and those that have not been enacted into positive law.  Those titles that have been enacted as positive law are the law; those  that have not been enacted into positive law are not the law but the codification is “prima facie” evidence of the law.  See U.S.C. § 204(a) (Title 26 compilations “establish prima facie the laws of the United States,” but “whenever titles of such Code shall have been enacted into positive law the text thereof shall be legal evidence of the laws therein contained.”).

Titles 26 and 22 have not been enacted as positive law.  See Office of Law Revision United States Code page identifying the Titles enacted as positive law with an asterisk, here.  In the case of Title 26, the law is the Internal Revenue Code of 1986 and is not its compilation into Title 26.  See 1 U.S.C. § 204, Notes (“The sections of Title 26, United States Code, are identical to the sections of the Internal Revenue Code.”)

What does all this mean in the real world?  Perhaps not much, but focusing on Bryan’s statement that the tax provision of the FAST Act was codified into Title 26, the statement is true but a more accurate statement is that the FAST Act enacted the provision into the IRC 1986 which is then codified into Title 26.

Readers wanting to chase down more on this might review Will Baude’s piece, Reminder: The United States Code is not the law (Volokh Conspiracy in WAPO 5/15/17), here.  Baude cites an article that “rocked my world when I was in law school:” Tobias Dorsey, Some Reflections on Not Reading the Statutes, 10 Green Bag 282 (2007), here.  (Readers of this blog can determine for themselves whether the article rocks, or Baude's susequent one, rocks their worlds; I have to say that I got onto this by reading Baude's and then Tobias's article and, while it did not rock my world, it sent a slight tremor through it.)

I discuss this issue in my book, Federal Tax Procedure (Practitioner Ed. 2020), beginning on page 28, here.

In the 2021 edition, I plan to replace the paragraph on p. 29 beginning “One question”  with the following two paragraphs (footnotes omitted and subject to revision by time of publication in August 2020):

There is a wrinkle here, though. Congress does not re-enact the IRC except on rare occasions with many years intervening (there have been only 3 IRCs since Congress began enacting IRCs in 1939).  For large Codes in a dynamic environment (such as tax), the Codes will be amended often. To cite the actual law (as opposed to the 26 U.S.C. compilation) as of a given date, one would have to cite the most recent IRC (in this case, IRC of 1986) and track and cite all statutes amending the relevant section of that IRC.  The annual compilation in 26 U.S.C. does that work for us by bringing its compiled sections up to date each year with a tracking of the statutes producing up to date text.  In most cases, persons needing to cite the IRC cite 26 U.S.C. (which, to repeat, for each year is a compilation from the most recent IRC), paying attention to the amendments to the IRC to ensure working with the text of the law as applicable to the time period or event in question.  Thus, if one cites§ 7805 in a case where 2012 is the relevant year, the citation would be 26 U.S.C. § 7805 (2012) or, in cases where the year is not significant (such as in a law review article discussing law generally, with assumption that it is a current version), one could leave off the year (e.g., 26 U.S.C. § 7805).  (I leave off the year in this text.)  A quick and dirty way to use 26 U.S.C. (and indeed all U.S.C. Titles) is to refer to the current version and make sure from the notes that the text has not been amended at any relevant time that would make the current text potentially not applicable.  Alternatively, one could cite the original IRC with explanation to show relevant amendments but that is much more tedious than the U.S.C. strategy and, in my experience rarely done for the IRC and other nonpositive law U.S.C. Titles.  Remember that, as noted above, the Code compilation in the 26 U.S.C. is prima facie evidence of the law.  That is generally good enough for the work courts and practitioners do.

A similar problem is encountered for statutes that are compiled into Non-Positive Law Titles.  The underlying statutes are the law, not the Non-Positive Law Title U.S.C. compilations.  Hence, properly, citations to that law should be to the underlying statutes amendments rather than to the Non-Positive Law Titles.  The logistical problem is that the Statutes at Large are not updated with amendments after the date of enactment.  Hence, care must be taken in working with Non-Positive Law Titles.  The practical solution as with amendments to Positive Law Titles is to work from the relevant version of the U.S.C. compilation where the compilers have done that work and there is a presumption that the compiled version of the relevant statute accurately states the law.

I would appreciate any reader advising me of any error or style in the discussion so that, by time of publication in August 2021, I can correct error or style.