On the Internal Revenue Code (Title 26), the U.S. Codes, and Statutes

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.  
  • LII here.
Of these Guides, I find the easiest to use is the LII version.  These 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.

For the U.S. Code Sections (Title 26 and other Titles) most relevant to tax crimes, see the page titled Tax Crimes Statutes, here.

On derivations of IRC 1939 and 1955, see Joint Committee on Taxation, Derivations of Code Sections of the Internal Revenue Codes of 1939 and 1954 (JCS-1-92), January 21, 1992, here. The purpose of the publication (p. i) is:

The pamphlet is intended to consolidate into one volume the derivations of the 1939 and 1954 Internal Revenue Codes for benefit of tax law reaearchen. This pamphlet should be particularly useful to the legislative history researchers when used in conjunction with the Joint Committee on Taxation staff pamphlet, Listing of Selected Federal Tax Legislation Reprinted in the IRS Cumulative Bulletin, 1911-1990 (JCS-19-91), December 19, 1991.

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

The following is from John A. Townsend, Federal Tax Procedure  (working draft for the 2023 edition, footnotes omitted) which is changed slightly from the 2022 editions:
H. The Code and Uncodified Tax Legislation.
1. General–Codified and Uncodified Laws.

Congress enacts law.  Those laws appear in the Statutes at Large.  The Statutes at Large are “legal evidence of the law.”  The Statutes at Large are published in chronological order.

In order to make the law more accessible, many laws are presented in the U.S. Code (“U.S.C.”) which arranges laws into 54 broad “Titles” according to subject matter.   The Office of Law Revision Counsel (“OLRC”) within the House of Representatives maintains these Code Titles. 

These U.S.C. Titles are of two types–Titles that, after compilation, have been enacted by Congress (“Positive Law Titles”) and Titles that have not been enacted but are the OLRC’s editorial compilations of the underlying Statutes at Large (“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 and is legal evidence of the law.  Where the U.S. Code itself is not enacted as a Positive Law Title but is instead the compilation by the OLRC 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; the Statutes at Large are the evidence of 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 (“IRC”) was first enacted as positive law in 1939 and then again in 1954  and 1986. Unlike the other Positive Law USC Titles (e.g., Title 18), the IRC was not enacted as a Positive Law USC Title with a Title number (e.g., 26) but was rather enacted as the IRC.  Title 26 (26 U.S.C.) is not a Positive Law Title (hence not Positive Law); the IRC is Positive Law.  The IRC is the only Positive Law Code that was not enacted as a Positive Law Title in the U.S.C.

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 IRC’s since Congress began enacting IRC’s 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 frequently (soon after enactment of the amendment to the IRC) 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 mirror image of 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 book except where dating is critical.)  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.  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 and 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.

As should be apparent, however, Non-Positive Law U.S.C. Titles may not tell the whole story that might be discerned from a direct reading of the Statutes at Large (including original enactment and all amendments).  For example, related sections of the Statutes at Large may be split up in the codification process or even there might be a change in language.

Moreover, there is law–enacted statutes–that is never codified (i.e., for tax legislation, not codified into the IRC 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 ensure 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 providers 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. 93.)

One issue that I think arises principally for Non-Positive Law Titles (which are compilations of the underlying Statutes at Large) relates to enacted findings and purposes which are statements enacted into the actual law.  The enacted findings and purposes serve the same function as statements and purposes appearing in legislative history.  A stated concern for the use of legislative history in statutory interpretation is that it is not enacted.  Enacted findings and purposes are enacted, and thus serve a legitimate role in statutory interpretation under any interpretive strategy.  When a Statute at Large is compiled into the Non-Positive Law Titles, the enacted findings and purposes will usually not be incorporated into the Code sections and will appear, if at all, only in notes to the compiled Code sections. It is thus critically important to refer to the Statutes at Large (where the findings and purposes will appear prominently) or to the notes in the Non-Positive Law Titles.  I don’t think this is an issue for the IRC because the statute is the Code and the findings and purposes appear in the legislative history (usually drafted with the involvement of the staff of the Joint Committee on Taxation (“JCT”)).  In all events, it is probably good practice to always read the notes of sections in the Code.

The principal statutes cited in this book are all positive law.  As noted the IRC itself was enacted as a separate Code. Where I cite a Code section without further description, I will be referring to the IRC. When I cite other Code provisions, I will identify the Title.  The other commonly cited statutes are positive law Titles: 

5 U.S.C., Government Organizations and Employees (including sections commonly called the Administrative Procedure Act for the source prior to codifying as positive law Title).

11 U.S.C., Bankruptcy

18 U.S.C., Crimes and Criminal Procedure

31 U.S.C., Money and Finance (including the money and financial reporting requirements such as FBARs).

For further reading, I recommend the following:

  • Detailed Guide to the United States Code Content and Featureshere.
  • Office of Law Revision Counsel, Positive Law Codification, here.
  • House Office of the Legislative Counsel, HOLC Guide to Legislative Draftinghere.
  • Sam Wice, When to Refer to the U.S. Code Versus the Underlying Statute, 36 Yale J. on Reg.: Notice & Comment (7/25/18), here.
  • 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.