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In brief

The IRS did not follow notice-and-comment procedures when it issued Notice 2007-83.


A theme underlying a number of court decisions since the Supreme Court’s decision in Mayo Foundationis that the Administrative Procedure Act (APA) does apply to the IRS – just like it applies to every other administrative agency. The IRS appears to be slowly coming to recognize this reality, but for many, many years, the agency acted as if the APA did not apply to its actions. The Sixth Circuit’s recent decision in Mann Construction, Inc. v. United Statesillustrates the importance of the IRS’ prior failures in this regard, in this case in the context of listed transactions.

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Richard Lipton is a senior counsel in Baker McKenzie. He advises on tax planning for corporations, partnerships and limited liability companies, and has handled numerous engagements in structuring partnership and real estate transactions. Richard served on the Internal Revenue Service Advisory Council, and is an adjunct professor at the University of Chicago Law School, where he teaches partnership taxation. Richard is past Chair of the ABA section of Taxation.


Daniel A. Rosen is a partner in the North America Tax Practice Group in New York. He is a seasoned tax lawyer with over 16 years of experience with the Internal Revenue Service. Mr. Rosen was a key participant in the drafting of published guidance and administrative directives involving judicial doctrines for the IRS Large Business and International Division (LB&I). He served as IRS counsel in many cases that resulted in published opinions and is a frequent speaker for George Washington University School of Law, the Practising Law Institute, Tax Executives Institute and the ABA. Additionally, Mr. Rosen served during law school as business editor of the Hofstra Law Review. He is an adjunct professor of law at New York Law School.


Robert S. Walton works mainly on tax matters. He is a member of the bar of the US Tax Court, a member of the US Circuit Courts of Appeals, the Court of Federal Claims, the US District Court for the Northern District of Illinois and Court of Appeals, as well as the US Supreme Court. Prior to graduating at the Harvard School of Law, Mr. Walton earned his B.S. in Accountancy from the University of Illinois.

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