On the Internal Revenue Code (Title 26) and Statutes (8/21/17; 7/21/18)

Recommendations for Internal Revenue Code of 1986 (Title 26) Sources

I recommend to students three Title 26 sources (actually each of these sources have all the Titles, but I link here only Title 26):
  • Office of Law Revision Title 26 here  where specific code sections can be searched and, via an outline structure, Title 26 can be viewed (this presumably is the most official; the House of Representative's Office of Law Revision Counsel offers a helpful detailed guide to the United States Code and Content here)
  • The Government Printing Office ("GPO") Title 26, here.  
  • Cornell University's LII Title 26, here.
These three Title 26 sources also offer other Titles of the U.S.C.  A helpful guide to the U.S.C. system is offered by the Office of Law Revision here.

On U.S. Codes (Including the Internal Revenue Code of 1986) and Uncodified Tax Legislation

The following is from From John A. Townsend, Federal Tax Procedure, working draft for 2019 edition as of July 31, 2018 (footnotes omitted)):
Congress enacts law.  Those laws appear in the Statutes at Large.  Those laws are commonly, but not always, presented in the U.S. Code (“U.S.C.”) which arranges laws into 54 broad “Titles” according to subject matter.  These Titles are of two types–Titles that have been enacted by Congress (“Positive Law Titles”) and Titles that have not been enacted but are editorial compilations of the underlying Statutes at Large by the House Office of Law Revision (“Non-positive Law Titles”).  For example, Title 18, Crimes and Criminal Procedure, has been enacted as a positive law, hence Title 18 is a Positive Law Title; Title 18 is the Statute at Large for all of Title 18.  Where the U.S. Code itself is not enacted as a Positive Law Title but is instead simply a compilation by the House Office of Law Revision from Statutes at Large, the U.S. Code is only prima facie evidence of the law (i.e., the underlying Statutes at Large) but is not the law.  Where the U.S. Code is enacted as positive law (such as Title 18) and subsequently amended, the amended U.S. Code is the law because the Code is the Statute at Large rather than a compilation of the Statutes at Large.

The Internal Revenue Code was first enacted as positive law in 1939 and then again in 1954. Unlike the other Positive Law Titles (e.g., Title 18), the Internal Revenue Code was not enacted as Positive Law Title, but was rather enacted as the Internal Revenue Code.  The Internal Revenue Code, the Positive Law, is compiled into Title 26, so that Title 26 is not a Positive Law Title (hence not Positive Law) but the Internal Revenue Code is Positive Law.  The Internal Revenue Code is the only Positive Law Code that was not enacted as a Positive Law Title in the U.S.C.

Although not an issue for federal tax law, the question is what to do with the statutes that are compiled into Non-Positive Law Titles.  The underlying statutes are the law, not the Non-Positive Law Title compilations.  Hence, properly, citations to that law should be to the underlying statutes 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, but, as noted, this is not a problem in the tax law in working with the Internal Revenue Code of 1986 (or Title 26 for that matter which is a mirror of the Internal Revenue Code of 1986 and thus does include the amendments).

Moreover, there is law–enacted statutes–that is never codified (i.e., for tax legislation, not codified into the Internal Revenue Code of 1986) and appears only in the Statutes at Large; in such cases, that law either does not appear in the official statutory text of the U.S.C.  but, at least sometimes, may appear in a note to a section in the official U.S.C. Title; care should be taken to insure that third party publishers’ versions of the Title include those notes which can be helpful.  A good example of such “uncodified” tax law is § 530 of the Revenue Act of 1978, which is legislation giving taxpayers certain relief in the ongoing problem of characterizing service provides as employees or independent contractors; that uncodified provision is referred to in a note to 26 U.S.C. § 3401. (I discuss § 530 relief in its context later in the text beginning on p. 98)
I thought readers might want an example of the uncodified legislation The relief in Section 530 of the Revenue Act of 1978, which is not included in the text of Title 26, can be accessed as follows:  The Office of Law Revision includes the entire provision of Section 530 as a note to 26 U.S.C. § 3401, here.  The note is in the GPO version here and in the LII version here (be sure and click the tab "Notes" at the top).  The notes contain other information about the statute, so in important matters it may be the better part of wisdom to check the statute and the notes.

For further reading, I recommend the following:

  • Detailed Guide to the United States Code Content and Features, here.
  • House Office of the Legislative Counsel, HOLC Guide to Legislative Drafting, here.
  • Sam Wice, When to Refer to the U.S. Code Versus the Underlying Statute, 36 Yale J. on Reg.: Notice & Comment (7/25/18), http://yalejreg.com/nc/when-to-refer-to-the-u-s-code-versus-the-underlying-statute/ 
  • Will Baude, Reminder: The United States Code is not the law (The Volokh Conspiracy 5/15/17), here.
  • Tobias A. Dorsey, Some Reflections on Not Reading the Statutes, 10 Green Bag 282 (2007), here.