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):

Distinguishing the Internal Revenue Code from Title 26 (11/27/17)

In my working draft for the 2018 edition of my Federal Tax Procedure book (scheduled for publication in August 2018), I have recently revised my discussion on Codified and Uncodified Laws in relation to the Internal Revenue Code of 1986 (IRC) and Title 26 (which is not the enacted revenue law).  For some, that may be confusing, as it was for me until recently.  So, I offer my understanding of what all that means by presenting a summary discussion below of the revised discussion and the full text of the revised discussion here.  (I also will include this revised discussion in my next current supplement to the Federal Tax Procedure Book. 2017 Editions)  Here is the summary discussion with supporting links at the end of the blog:

All statutes are enacted by Congress as Statutes at Large.  Statutes at Large are said to be "positive law."  The Statutes at Large are direct and conclusive evidence of the law.

Congress has authorized the House Office of Law Revision to compile common subjects in the various Statutes at Large into Titles which are not "positive law" -- i.e., the Titles have not been enacted -- they are simply compilations of underlying Statutes at Large and, by statute, are only prima facie evidence of the law -- the underlying Statutes at Large.  See 1 USC § 104(a), here.

Sometimes Congress will enact a Title as a Statute at Large.  Most importantly for tax procedure purposes, the IRC has been enacted as a Statute at Large and is positive law.  The IRC is thus the law.  This enactment occurred in 1939 and again in 1954.  The 1954 enactment was named the Internal Revenue Code of 1954.  In 1986, Congress renamed that enactment as the Internal Revenue Code of 1986, at the same time that substantial amendments to various provisions of that Code were enacted.  But -- and this is critical -- Congress did not enact the IRC as Title 26 of the U.S. Code.  The House Office of Law Revision has compiled -- actually mirror imaged -- the IRC into Title 26.

Therefore, the correct conclusive citation to any provision of the IRC is to the IRC (which is the law) and not to Title 26 (which is only prima facie evidence of the IRC).  Still, most courts and commentators usually cite to Title 26.

And, some statutes that affect the application of the revenue laws are not in the IRC, and therefore not in Title 26 (the IRC mirror image).  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, here [scroll to bottom of the notes].

Helpful links for this subject may be found in the following (which are referenced in the footnotes to the excerpt from the current revision of the Tax Procedure Book referenced above.:

• Library of Congress web page on Statutes at Large, here.
• House Office of Law Revision Counsel Guide, here, 
• House Office of Law Revision Counsel Positive Law Codification, here.
• House Office of Law Revision Counsel list of codified (positive law) and uncodified (not positive law) Titles of the U.S. Code, here. [Note that the positive law titles are identified by an asterisk]  For a list of the codified titles only, see the note to 1 U.S.C. § 104(a), here.
• Yin, George K., Codification of the Tax Law and the Emergence of the Staff of the Joint Committee on Taxation, pp. 19 (August 1, 2017). Virginia Law and Economics Research Paper No. 2017-20; Virginia Public Law and Legal Theory Research Paper No. 2017-39. Available at SSRN: https://ssrn.com/abstract=3008878
• 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.