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ARTICLE · 16 JULY 2024

Another Circuit Invalidates An IRS Listing Notice

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On June 4, 2024, the Eleventh Circuit joined the Sixth Circuit in holding that IRS listing notices are invalid for violating the Administrative Procedure Act's (APA) notice-and-comment rulemaking procedures.

United StatesTax
Caitlin R. Tharp
Caitlin R. Tharp

On June 4, 2024, the Eleventh Circuit joined the Sixth Circuit in holding that IRS listing notices are invalid for violating the Administrative Procedure Act's (APA) notice-and-comment rulemaking procedures.1 The decision follows Mann Construction, which held that Notice 2007-83 is unlawful for lack of notice and comment.2

Background

"Listed transactions" are transactions that the IRS has deemed to be abusive tax avoidance transactions. Since 2000, the IRS has identified more than 30 listed transactions and "transactions of interest" in a notice or other subregulatory guidance.3 The IRS issued Notice 2017-10, at issue in Green Rock, to designate certain conservation easement transactions as presumptively tax-avoidant listed transactions.

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