When Does the Statute of Limitations Start on the Erroneous Refund Suit? (4/29/21; 6/30/24)

I recently read and posted a comment to the following blog discussion:  Keith Fogg, Late Filed Erroneous Refund Suit (Procedurally Taxing Blog 4/22/21), here.  I wanted to explore further the issue of the starting date for the statute of limitations for erroneous refund suits.  Readers will recall that § 7405 permits an erroneous suit for refund which is "erroneously made.”  Section 6532(b) says that the statute of limitations to initiate the erroneous refund suit is “2 years after the making of such refund, except that such suit may be brought at any time within 5 years from the making of the refund if it appears that any part of the refund was induced by fraud or misrepresentation of a material fact.”  (The Regulation, § 301.6532-2, merely repeats the statute.)  Both the 2- and 5-year statutes of limitations require a starting date.

The Procedurally Taxing Blog linked above discusses a case, United States v. Page, No. 3:20-cv-08072 (D. Ariz. April 16, 2021),  here, involving the following facts:

• 5/5/17 – IRS mails taxpayer an erroneous refund check for $491,104. 
• ??/??/?? – Taxpayer receives the erroneous refund check
• 4/5/18 – Taxpayer cashes the erroneous refund check.
• ??/??/?? – IRS writes to request return of the erroneous refund
• 12/19/19 – Taxpayer responds by returning $210,000.
• 331/20 – IRS sues for erroneous refund.

The Government moved for default judgment.  Taking seriously its obligation to test the validity of the Government’s claims even on default judgment, the Court held (Slip Op. 3):

Under Ninth Circuit law, “[t]he refund is considered to have been made on the date the taxpayer received the refund check.” United States v. Carter, 906 F.2d 1375, 1377 (9th Cir. 1990); see also O’Gilvie v. United States, 519 U.S. 79, 91 (1996) (“[T]he law ordinarily provides that an action to recover mistaken payments of money accrues upon the receipt of payment.” (internal quotation marks and citation omitted)).

Under the facts outlined above, that meant that the statute of limitations foreclosed the erroneous refund suit absent fraud (which the Government did not allege).

There are two problems with the holding.  First, I think it makes no sense (as I noted in my then off-the-cuff comment to the Procedurally Taxing Blog entry because I don’t think the Government could have brought an erroneous refund suit until (i) at the earliest the refund check was cashed and perhaps (ii) until the refund check cleared.  I address that below.  Second, on a more procedural issue, I think the language of the Ninth Circuit precedent was dicta and not persuasive dicta, so the Page Court was not bound by it.  I address that issue below.

Accrual of the Erroneous Refund suit

Is the JCT Blue Book More Persuasive than a Law Review Article? (4/27/21)

Tax procedure fans will know the key role played by the Joint Committee on Taxation, here and Wikipedia here.  It is a nonpartisan committee with deep staff to serve the important role of advising Congress, principally through its tax writing committees (House Ways and Means and Senate Finance) on tax legislation.  It is fair to say that the JCT is deeply involved in the nooks and crannies of major tax legislation.  After major tax legislation, the JCT will often prepare a report, referred to as the Blue Book, summarizing the tax legislation, often adding some nuance not addressed directly in the text of the legislation.  In the past, the Blue Book was frequently used by the IRS, the public and the courts as a guide for interpretation of the legislation.  Although the Blue Book is not legislative history because published after the legislation, it is about as close as it gets to legislative history.  Nevertheless, Justice Scalia claimed the Blue Book was no more relevant and persuasive than a law review article.  United States v. Woods, 571 U.S. 31,47-48 (2013).  The Tax Court adopted the key language from this quote.  Rafizadeh v. Commissioner, 150 T.C. 1, 6. n4 (2018) (“the Blue Book is not legislative history but, ‘like a law review article, may be relevant to the extent it is persuasive, ’"quoting United States v. Woods, 571 U.S. 31, 47 2013)).  Deference fans will note that, as Justice Scalia explained it, that sounds like Skidmore deference.  Skidmore v. Swift & Co., 323 U.S. 134 (1944).  Skidmore may be no deference at all.  See Really, Skidmore "Deference?" (Federal Tax Procedure Blog 5/31/20; 6/3/20), here.

Yesterday, I was rooting around in the Attorney General’s Manual on the Administrative Procedure Act (1947), web format here and pdf format here.  The APA was enacted in 1946.  On further research, I found that the Supreme Court had often “deferred” to the Manual.  E.g., Kisor v. Wilkie, 588 U.S. ___, 139 S.Ct. 2400, 2420 (2019) (plurality opinion, “some deference because of the role played by the Department of Justice in drafting the legislation.”; citing Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U. S. 519, 546 (1978)); Steadman v. SEC, 450 U.S. 91, 102 n. 22 (1981) (also citing Vermont Yankee); and see also Robin J. Arzt, Recommendations for a New Independent Adjudication Agency to Make the Final Administrative Adjudications of Social Security Act Benefits Claims, 23 J. Nat'l Ass'n  Admin. L. Judges 267, 330-31 (2003) (citing Vermont Yankee and Steadman and stating that the Manual is part of the legislative history of the APA;” the statement of its status as legislative history is perhaps hyperbole in today’s refined notions of legislative history, but it does come close).

So here are my questions:

Chevron In Oral Argument in Sanchez v. Mayorkas (4/23/21)

On April 19, oral argument was held in Sanchez v. Mayorkas (Sup Ct No. 20-315), see transcript here.  The case was not a tax procedure case; nor was it even a tax case.  But the discussion was interesting and indicates some some confusion about Chevron.  I just make several comments about the discussion.  

First, the Government attorney (Tr. 32, 38, 40, 41, 54) that the Government's reading of the statute at Step Two was the “better reading” so that Chevron deference is  inapplicable.  For that reason, the Government attorney asks that the Court say the Government reading is better and “say no more.”  That is true.  If the Court finds that the Government’s interpretation is the better interpretation, Chevron does not apply.  Chevron applies in an outcome determinative sense only if the Court thinks another interpretation is “better” but the Government’s interpretation of the statute is reasonable.  Some of the Justices’ questions indicate confusion about that correct proposition.

Second, Justice Breyer said (Tr. 37): “aren't we in the world where there is  ambiguity in the statute and we have to get into the Chevron issue”?  The answer is no for the reason noted above.  If the agency interpretation is the better interpretation of the ambiguous statutory text, Chevron deference is not needed and does not apply.  Some of the Justices' discussion indicates confusion on that point.

Third, this confusion led to Brand X issue confusion.  Justice Alito asked (Tr. 40) “Well, but, if we say -- if we say the government's -- the government has the better interpretation, won't that foreclose you from later changing your position?”  Under Brand X, the Government can change an interpretation to an interpretation that is reasonable, thus attracting Chevron deference even if not the better interpretation.  The Government answer nails it, saying that under Brand X: “the agency could theoretically decide that, although it's taken a position, it has had this position since 1991, it -- it studied the question further and concluded that the statute was ambiguous and that it should resolve that ambiguity by taking a different interpretation.”  I think in context he meant a different reasonable interpretation since an unreasonable interpretation flunks Chevron Step Two.

More Thoughts on APA and Legislative and Interpretive Regulations Inspired by Recent Cases (4/8/21; 4/11/21)

As readers of this blog know, I have recently been considering and even obsessing over the distinction between legislative and interpretive regulations for purposes of the APA and Chevron deference.  Just in the past few days, I have focused on four opinions that I think highlight the confusions in this area.  The first three are decisions by three different Circuits on the issue of the validity of a recently adopted regulation including bump stocks within the statutory definition of “machineguns,” thus prohibiting their possession with potential criminal penalty consequences.  Those decisions are:

• Guedes v. BATFE, 920 F.3d 1 (D.C. Cir. 2019), cert. denied, 140 S. Ct. 789 (2020), D.C. Cir. here and GS here; 
• Aposhian v. Barr, 958 F.3d 969 (10th Cir. 2020), 10th Cir. here and GS here; and
• Gun Owners of Am., Inc. v. Garland, 992 F.3d 446  (6th Cir. 3/25/21), 6th Cir. here; GS here.  [Note that the lengthy decision was published on the same day as oral argument.]

The regulation was sustained in Guedes and Aposhian as a Chevron-entitled interpretation of the ambiguous statutory text; the regulation was invalidated in Gun Owners as (i) violating separation of powers and the rule of lenity and (ii) in any event not passing Chevron analysis as a reasonable interpretation of ambiguous statutory text.

The Fourth Opinion, a truly monster opinion, was an en banc opinion in Brackeen v. Haaland, 994 F.3d 24 (5th Cir. 4/6/21), 5th Cir. here; GS here.  The opinions are, in the aggregate, 325 pages long and the portions of the opinions that represent the en banc opinion are scattered in two separate opinions – that of Judge Dennis and that of Judge Duncan.  Here is the Court’s description:

Dennis, J., delivered the opinion of the en banc court with respect to Parts II(B), II(C), and II(D)(2) of his opinion (except as otherwise noted in the Per Curiam opinion, supra). 

Duncan, J., delivered the opinion of the en banc court with respect to Parts III(B)(1)(a)(i)–(ii), III(B)(1)(a)(iv), III(B)(2)(a)–(c), III(D)(1), and III(D)(3) of his opinion (except as otherwise noted in the Per Curiam opinion, supra).

The exercise of working through that stuff to figure out what the en banc holdings were would be daunting indeed.  So, the Fifth Circuit helpfully offers the first opinion, a per curiam opinion, to provide a guide to the en banc opinions embodied in the opinions with the named authors.  Fortunately, for purposes of this blog entry, I and readers interested in the legislative – interpretive distinction do not have to dig through all of that morass.  In relevant part, Judge Dennis’ opinion has the en banc opinion at outline paragraph II.D.2., titled The Scope of the BIA’s Authority, on pages 138-147, beginning here.

I offer this high level summary with limited citations (I am revising my article on the subject for posting to SSRN later).  I begin with what I think should be the starting point for discussing the issue—the original meaning of the APA distinction between legislative and interpretive regulations and how that original meaning played out in deference.  I will then address the cases which evidence the distortions and distractions that have obscured the original meaning.

Original Meaning of the APA

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):

My Distillation of the Legislative - Interpretive Regulation Distinction (4/3/21)

In further considering the legislative-interpretive distinction, it occurred to me that one way to distill the essence of the distinction is as follows (when I cite Chevron, I refer to the Chevron framework):

For a valid legislative regulation, two things are required:  (i) Congress must have enacted express and specific authority to the agency to make the law (with an appropriate intelligible principle limiting the delegation); and (ii) the agency must have promulgated the legislative regulation pursuant to that authority.  Accordingly, if the agency says it is invoking its express and specific authority in the statute to make law, court review of the regulation tests only whether the regulation is within the scope of the delegated authority.  If so, the regulation is the law, just as if it were a statute.

For a valid interpretive regulation, Congress must have conferred upon the agency express or implied authority to interpret ambiguities within statutory text.  If the agency is invoking its express or implied interpretive authority, then, under Chevron, court review tests only whether the interpretation in the regulation is reasonable within the scope of the ambiguity in the statutory text. 

These tests turn upon  what the agency has done – (i) exercise its legislative regulation authority (for which it must cite an express delegation of legislative authority, such as § 1502 for consolidated returns); or (ii) exercise its express or implied authority to interpret statutory text.  If Congress has delegated the agency legislative authority, the agency would want to specifically invoke its legislative authority because, by invoking legislative authority, the regulation is the law and has the force of law just as if it were a statute.  If the agency has no such legislative authority or doesn’t invoke legislative authority in promulgating the regulation and the regulation only interprets ambiguous statutory text, the regulation is an interpretive regulation which, under Chevron, controls (note the conjunctive) (i) if the interpretation is reasonable within the scope of ambiguity in the text of the statute and (ii) the court defers to the agency interpretation even though the court believes there is a better reasonable interpretation.  (It the court interprets the same as the agency, there is no deference to the agency interpretation, there is no deference; if the court is in a state of equipoise as to the better interpretation and defaults to the agency reasonable interpretation, that too is not deference because the court is not substituting the agency interpretation for its own better interpretation.)

Circuit Conflict in Important Cases that Allow the Supreme Court to Take Cert and Pronounce on the Difference between Legislative and Interpretive Regulations (3/30/21; 12/6/21)

I have thrashed around on this blog about the APA distinction between legislative and interpretive rules, focusing principally on regulations.  Briefly, the key points I have asserted in the blogs and elsewhere are:

• The APA distinction between legislative and interpretive regulations continues to be viable despite claims from some scholarly quarters that they are not.

• The distinction between the two categories is:  Legislative rules (must be by regulation) are like statutes; they are the law; they do not interpret the law.  Interpretive rules (can be by regulation) are not the law but are interpretations of the law (here the statute).

• A legislative regulation like the consolidated return regulations authorized by specific delegation under § 1502 is the law just as if it were a statute.  A legislative regulation does not interpret the statute.

• An interpretive regulation does interpret the statute.  Interpretations of statute can be tested for the reasonableness of the interpretation.  That is what Chevron does in the context  of agency interpretations in interpretive regulations.

• An agency may adopt interpretive rules, at its choice in the form of notice and comment regulations, pursuant to the authority in “general authority” statutes (such as § 7805 of the IRC) or implied authority in the agency’s formative legislation.  

• For example, § 482 which shares a provenance with § 1502 under the Revenue Act of 1928 when the prior version of the two statutes were split, with the 1928 predecessor of § 1502 conferring express delegated authority to Treasury to make the law in statute-like legislative regulations and the 1928 predecessor of § 482 not having that authority.  Can you imagine the howls from scholars, the practitioner community and the courts if the IRS asserted the authority to make legislative rules like the consolidated return rules under § 482 via its general authority in § 7805?

• Adopting interpretive rules in notice and comment format does not make the interpretive rule legislative for purposes of the APA distinction.

• Legislative rules (must be by regulation) are not entitled to Chevron deference because legislative rules are the law and are not interpretations of the law.  Chevron only tests reasonableness of interpretation against the text of a statute.  Chevron cannot test the reasonableness of either a statute or a legislative regulation (said to be statute-like).  Chevron can and does test interpretations in interpretive regulations to determine if the interpretations are reasonable within the scope of the statutory ambiguity.

Some, perhaps many, of these claims are not mainstream.  For example, some claim that Chevron applies only to legislative regulations.  This claim could be partially truth if their further claim that the legislative regulations category has taken over the interpretive regulation category, so that all notice and comment regulations are legislative even if all they do is to reasonably interpret ambiguous statutory text.  It is my claim that the interpretive regulation category continues viable (has not been taken over by the legislative regulation category) and that Chevron deference applies to interpretive regulations and does not apply to legislative regulations.

Nondelegation Debunked and Relationship to APA and Deference (3/19/21)

I write today again on administrative law issues that have occupied some scholarly interest starting with my teaching of Federal Tax Procedure starting in the 1990s.  The impetus for this blog entry is a fresh article on the nondelegation doctrine – fresh meaning recently published and a fresh accounting of the history related to the so-called nondelegation doctrine.  The article is Julian Davis Mortenson & Nicholas Bagley, Delegation at the Founding, 121 Colum. L. Rev. 277 (2021), here.  See also a Slate interview of the authors, Mark Joseph Stern, Neil Gorsuch Supports an Originalist Theory That Would Destroy Modern Governance (Slate 3/19/21), here.  I recommend both reads.

The full bore nondelegation doctrine on which the article is that Congress cannot delegate legislative powers to the Executive Branch.  The doctrine has no current sway in the decided cases.  Rather, as interpreted for some time now, Congress may delegate legislative powers when “an intelligible principle” which “clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.” United States v. Henry, 888 F.3d 589, 596 (2d Cir. 2018);   The Supreme Court echoed this holding in the plurality opinion in Gundy v. United States, 583 U.S. ___, ___, 139 S.Ct. 2116, 2123 & 2129 (2019)

The authors claim that the so-called nondelegation doctrine has no basis in the history relevant to the original understanding of the Constitution.  As they point out, its use in the 1930s was to rein in the New Deal and that failed miserably as the nondelegation doctrine faded into a well-deserved obscurity.  But as the Law Review article and the Slate article note, it has roared back, fueled first by the ideology of the most ideological Supreme Court Justice, Justice Thomas.

From the Law Review article (p.285, footnote omitted):

In American Trucking, Justice Thomas wrote separately to say that “[o]n a future day . . . I would be willing to address the question whether our delegation jurisprudence has strayed too far from our Founders’ understanding of separation of powers.”  Scholars immediately took up his call to build an originalist case for the nondelegation doctrine.

 The Law Review article then covers the supposed scholarly thrashing at Justice Thomas’ invitation.  As explained in the Slate Article, scholars then “write long law review articles and books that give the theory a patina of historical credentials.” 

Professors Mortenson and Thomas argue that the patina of credibility for nondelegation is illusory.

More on Delegations of Authority, Notices of Deficiency and Consents to Extend (3/18/21)

Yesterday, I posted on a case, Harriss v. Commissioner, T.C. Memo. 2021-31, that led me into a discussion of delegated authority to make deficiency determinations from the Secretary of the Treasury down to employees (by function) in the IRS and related issues, including consents to extend the statute of limitations.  Burden of Persuasion As to Proper Delegated Authority for Statutorily Required IRS Action (Here Notice of Deficiency) (Federal Tax Procedure Blog 3/17/21), here.  A colleague engaged me on a couple of issues from the blog.  I thought I would present the issues here and my cut on the issues.  I have reformulated the issues to better present them here:

Issue 1:  The courts treat the Forms 872 (Consent to Extend the Time to Assess Tax) and its various iterations, such as Form 872-A (Special Consent to Extend the Time to Assess Tax) used for the statute extension authorized by than § 6501(c)(4)(A), here, as unilateral waivers rather than as contracts.

JAT Response to Issue 1:  I again direct readers to the article:  John A. Townsend & Lawrence R. Jones, Jr., Interpreting Consents to Extend the Statute of Limitations, 78 Tax Notes 459 (1998), here.  But the shorter answer is in the statute itself, § 6501(c)(4)(A) (bold-face supplied by JAT):

Where, before the expiration of the time prescribed for the assessment of any tax imposed by this title, except the estate tax provided in chapter 11, both the Secretary and the taxpayer have consented in writing to its assessment after such time, the tax may be assessed at any time prior to the expiration of the period agreed upon. The period so agreed upon may be extended by subsequent agreements in writing made before the expiration of the period previously agreed upon.

 The emphasized language requires:

1.        Both the IRS and the taxpayer must sign a consent to reflect the agreement.

2.        Both must sign be before the expiration of the period of limitation (even the aborted writing was after the period of limitation in Stearns, so that the facts of would give the victory to the IRS under the statute as written now)..

3.        The consent is an agreement (see “so agreed” in the statute) which certainly connotes something bilateral rather than just a unilateral waiver.  In the law of waiver, waiver is a unilateral not requiring any agreement by the other party.  (Of course, if the other party asserts waiver as a defense, the party may be said to be agreeing with the waiver but agreement is not thought of as an agreement in the way § 6501(c)(4)(A) written.)  In other words, a waiver is truly unilateral and  in the law of waiver there is no requirement that the other party sign or otherwise agree to a waiver for the waiver  to be effective.  All that is required is that the party waiving do the act necessary to constitute a waiver.

Issue 2: How can a Form 872 be a contract when the benefits flow only one-way – i.e., the IRS gets the benefit but the taxpayer gets nothing of benefit? 

Burden of Persuasion As to Proper Delegated Authority for Statutorily Required IRS Action (Here Notice of Deficiency) (3/17/21; 3/19/21)

In Harriss v. Commissioner, T.C. Memo. 2021-31, TN here and GS here, the Tax Court addressed IRS employee authority and the burden on the taxpayer  to prove that the IRS employee taking the critical action, suggesting that the presumption of regularity applies to the authority to issue notices of deficiency.  Professor Bryan Camp has a good blog on this case and the presumption.   Bryan Camp, Lesson From The Tax Court: The Presumption Of Regularity For NODs (Tax Prof Blog 3/15/21), here.  (Professor Camp and I engage on some of the issues in the comments to his blog.)

I was particularly concerned about imposing upon the taxpayer the burden of proof on the taxpayer.  The Court called the burden the burden of proof without distinguishing between burden of persuasion and burden of production, but it is clear that the court is referring to the burden of persuasion.  The Court then thrashes around and ultimately concludes, in effect, that, while the IRS did not show that its own employee issuing the NOD had the properly delegated authority, the taxpayer did not show that she did not and therefore, as with burdens of persuasion in a state where the fact is not proved, the taxpayer loses.  (See more below as to whether the Tax Court was in equipoise as authority or could find that the employee had the delegated authority.)

It just doesn’t sound right to me that the IRS should not be required to prove its employee’s authority to take statutorily required action.

At p. 10 n. 6, the Tax Court distinguished Muncy v. Commissioner, 637 F. App'x 276 (8th Cir. 2016) which reversed a case where the Tax Court record did not indicate the IRS employee’s authority to issue an NOD and remanded for the Tax Court “to determine whether Miller had authority to issue the NOD that is the subject of this  case, and for further proceedings consistent with that determination.”  The implication, not expressly stated, was that the IRS should lose if the record does not show the authority.  Yet, in Harris, the Court seemed to hold that the taxpayer loses if the record does not show that the employee lacked the authority, distinguishing Muncy on the Golsen dodge.

As a matter of what I think is sound procedural practice in allocating burdens in litigation, it seems to me that the burden should be on the IRS.  The IRS is uniquely situated to show its employees’ authorities to undertake action.  The IRS has that evidence; the taxpayer does not have that evidence without substantial effort and perhaps obligatory discovery against the IRS.  (Practice Note: by way of discovery, I suggest request for admission and related interrogatory to force the IRS to show its hand; alternatively, I suggest that the taxpayer requested a stipulation that the IRS has no evidence to show proper authority.)

Here are some key components of the Court’s exegesis:

1. The general overview of delegations (pp. 8-9):

Section 6212(a) provides: “If the Secretary determines that there is a deficiency in respect of any tax imposed by subtitles A or B or chapter 41, 42, 43, or 44 he is authorized to send notice of such deficiency to the taxpayer by certified [*8] mail or registered mail.” Section 7701(a)(11)(B) defines “Secretary” to mean “the Secretary of the Treasury or his delegate.” In this context “delegate” means “any officer, employee, or agency of the Treasury Department duly authorized by the Secretary of the Treasury directly, or indirectly by one or more redelegations of authority, to perform the function mentioned or described in the context”. Sec. 7701(a)(12)(A)(i).

By regulations the Secretary has extended the authority to determine deficiencies and to issue notices of deficiency to the Commissioner of Internal Revenue and to district directors, directors of service centers, and regional directors of appeals. See secs. 301.6212-1(a), 301.7701-9, Proced. & Admin. Regs. These regulations authorize the Commissioner to redelegate the performance of such functions to other officers or employees under his supervision and control; the Commissioner may also authorize further delegation of such authority by his delegates. See sec. 301.7701-9(c), Proced. & Admin. Regs. As permitted by these regulations, the authority to sign and issue notices of deficiency has been redelegated under Delegation Order 4-8, Internal Revenue Manual (IRM) pt. 1.2.43.9(1), (2), and (3) (Sept. 4, 2012). The list of positions authorized under Delegation Order 4-8 includes “Department Managers, Campus [*9] Compliance Services (Small Business/Self-Employed)” and “Director, Return, Integrity and Compliance Services (Wage & Investment).”Id.

The Court cites IRM 1.2.43.9(1), (2), and (3) (Sept. 4, 2012) which provides redelegations or recognizes redelegations made elsewhere.