The Tax Court set aside Notice 2017-10, 2017-4 I.R.B. 544, while adjudicating a series of consolidated cases involving limited liability companies (LLCs) and conservation easements, because it was improperly issued by the IRS without meeting the notice and comment requirements under the Administrative Procedure Act (APA). Notice 2017-10 identified as listed transactions for purposes of Reg. §1.6011-4(b)(2) all syndicated conservation easement transactions, including all substantially similar transaction, entered into on or after January 1, 2010. The IRS had conducted examinations of the taxpayers’ Forms 1065, U.S. Return of Partnership Income, and disallowed the claimed deductions for noncash charitable contributions. In addition, each notice of final partnership administrative adjustment asserted a gross valuation misstatement penalty, a substantial valuation misstatement penalty, a negligence penalty, a substantial understatement penalty and an additional reportable transaction penalty.

The Tax Court held that Notice 2017-10 was a legislative rule because it created new substantive reporting obligations for taxpayers and material advisors, the violation of which prompted exposure to financial penalties and sanctions. Because the notice was a legislative rule, it should have gone through the notice-and-comment rulemaking under the APA. Moreover, Congress did not expressly authorize the IRS to identify a syndicated conservation easement transaction as a listed transaction without following the APA’s notice-and-comment procedures. In these consolidated cases, Notice 2017-10 was not issued until the tax year at issue. Accordingly, the court did not apply Notice 2017-10 retrospectively and disagreed that prior notice and comment made at the time of promulgation of Reg. §1.6011-4 satisfied the IRS’s ongoing obligation to comply with the APA when issuing Notice 2017-10. The Tax Court also concluded that the Congress had made it clear that each substantive rule of general applicability, including any amendment or revision, must comply with the APA. Consequently, the taxpayers’ cross-motions for summary judgment was granted in part, and Notice 2017-10 was set aside. Finally, Code Sec. 6662A penalties were not imposed with respect to reportable transactions.

Four concurring and two dissenting opinions were filed. The dissenting opinions focused on the express reference to Code Sec. 6011 in Code Sec. 6707A when it was enacted, and that the IRS had already identified 30 listed transactions by 2004 when Code Sec. 6707A was enacted without adherence to the APA’s notice-and-comment requirements. In addition, when Code Sec. 4965 was enacted in 2006, the conference report defined a listed transaction as a tax avoidance transaction “identified by notice, regulation, or other form of published guidance as a listed transaction.”