An Action on Decision (AOD) is a formal memorandum prepared by the IRS Office of Chief Counsel that announces the future litigation position the IRS will take with regard to the court decision addressed by the AOD.

The following list initially presents these documents in reverse chronological order, from the present back to calendar year 1997.

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Number Decision Issue Release Date
1997-12 Jackson v. Comm, 108 T.C. 130 (1997) ( T.C. # 23558-94). Reflects the Service's agreement that a former insurance agent is not required to pay tax under the Self-Employment Contributions Act (SECA) on specified contractual termination payments he received from an insurance company upon the termination of his contract with the insurance company. 03/03/2000
2019-01 Jacobs v. Commissioner, 148 T.C. No. 24 (2017) Whether the IRS will follow the Tax Court’s decision in Jacobs v. Commissioner that Taxpayer’s expenses for provision of pregame meals at away city hotels to professional hockey players and team personnel were de minimis fringe benefits under § 132(e)(2) and were therefore exempt from the 50% deduction limit for meal and entertainment expenses under § 274(n)(1) . 02/21/2019
1999-11 James J. and Sandra A. Gales v. Comm, T.C. Memo. 1999-27 Reflects the Service's acquiescence in the Court's conclusion that the advance commissions were loans rather than income in the year received., specifically finding that on occasion repayment was demanded of taxpayer and that he personally repaid some of the advance commissions. The court relied upon Dennis v. Commissioner, T.C. Memo. 1997-275, where advance commissions were found to be loans because the taxpayer was personally liable for repayment at the time 03/03/2000
2000-08 John D. Shea v. Commissioner, 112 T.C. 183 (1999) The Tax Court held that the burden of proof should be placed on the Commissioner with respect to the section 66(b) issue. Rather than relying on established case law for its determination as to whether the section 66(b) issue was new matter, the court incorporated section 7522 into its analysis. Section 7522 requires the Commissioner to issue a notice of deficiency which contains a description of the basis for the Commissioner's tax 11/03/2000
2004-04 Kaffenberger v. U.S., 314 F.3d 944 (8th Cir. 2003. Whether the Form 4868, Application for Automatic Extension of Time to File U.S. Individual Income Tax Return, constitutes an informal claim for refund, and whether the 2-year period of limitations, set forth in I.R.C. Sec. 6532(a)(1), for bringing a refund suit can be extended once the 2-year period has expired. RELEASE DATE: 08/30/2004. 08/31/2004
2000-07 Kathy A. King v. Commissoner, 115 T.C. No. 8 (Aug 10, 2000). Reflects the Service's acquiescence in the Court's conclusion that held that the nonpetitionering spouse was entitled to notice and an opportunity to intervene. The Tax Court reasoned that the rationale for the notice and intervention rules of section 6015(e)(4), i.e., fairness to the nonelecting spouse to be heard in order to ensure that innocent spouse relief is granted on the merits after taking into account all relevant 09/25/2000
2011-02 Keller v. Comm., 556 F.3d 1056 (9th Cir. 2009), rev'g TCM 2006-131 Whether the gross valuation misstatement penalty under I.R.C. Sec. 6662(h) applies when a deduction or credit is disallowed in full, regardless of the reason for the disallowance. 10/11/2011
1999-02 Larotonda v. Commissioner, AOD CC-1998-010. An action on decision stating that the Service will not acquiescence to the Court's conclusion in Larotonda. Recent legislation warrants the withdrawing of this AOD. The statutory provision effectively at issue in Larotonda was modified by the Restructuring and Reform Act of 1998, Pub. L. No. 105-206, 112 Stat. 685 (1998), enacted on July 22, 1998. Section 3436 of the Act amends section 72(t) to provided that the early distribution tax shall not apply to a distribution made on account of a levy 03/03/2000
2021-02 Machacek v. Commissioner, 906 F.3d 429 (6th Cir. 2018), rev’g T.C. Memo. 2016-55 Whether the economic benefits of a compensatory split-dollar life insurance arrangement may be treated as a distribution with respect to stock under I.R.C. § 301. 05/24/2021
1997-08 May Department Stores Co. v. United States, 36 Fed. Cl. 680. May Department Stores Co. v. United States, 36 Fed. Cl. 680 (Ct. Fed. Cls. 1996). AOD reflects the Service's agreement that, if a taxpayer elects to have overpayments of tax reported on a timely filed income tax return credited to the next year's tax liability without specifying the estimated tax installment against which the overpayment is to be credited, the Service, in computing interest on any subsequently determined tax deficiencies for the tax year in which the overpayments were reported, will not treat the reported overpayments of tax as having been credited against installments of 03/03/2000
2021-04 Mayo Clinic v. United States, 997 F.3d 789 (8th Cir. 2021), rev’g, 412 F.Supp.3d 1038 (D. Minn. 2019) Whether the primary function of an educational organization described in section 170(b)(1)(A)(ii) of the Internal Revenue Code must be the presentation of formal instruction. 11/22/2021
1998-05 McCormick v. Peterson, CV93-2157 (E.D>N.Y. 1993). Reflects the Service's agreement with the district court's ruling that adding the words "under protest" to the signature of a tax return without otherwise modifying the words of the jurat does not cast doubt on the validity of the jurat and, accordingly, does not invalidate the document as a return. 03/03/2000
2000-01 McLeod v. United States, 276 F.Supp. 213 (S.D. Ala. 1967). Reflects the Service's acquiescence in the court's conclusion holding that the Department of Pensions and Security “constructively placed” the children in the taxpayer's home for adoption by presenting its favorable report to the court. Therefore, the requirements of section 152(b)(2) and Treas. Reg. § 1.152-(2)(c) were satisfied and taxpayer was entitled to the exemptions. In the Action on Decision in McLeod distributed on January 11, 1968, 1968 AOD LEXIS 75, the 03/03/2000
2012-08 Media Space, Inc. v. Commissioner, 135 T. C. 424 (2010), vacated, 477 Fed. Appx. 857 (2nd Cir. 2012) Whether the taxpayer’s forbearance payments to its preferred shareholders were (1) ordinary and necessary business expenses that were not required to be capitalized under section 263(a), (2) not nondeductible distributions to the shareholders under section 301, and (3) not pursuant to a reacquisition or an exchange of stock to which section 162(k) or section 361(c)(1) applied. 08/05/2013
2001-05 Mesa Oil, Inc. v. United States. Reflects the Service's nonacquiescence whether a verbatim recording of a collection due process (CDP) hearing is required under §§ 6320 and 6330 to create a judicially reviewable administrative record. The district court held the administrative record to be inadequate for judicial review under section 6330(d)(1)(B), because “no record of the hearing was made, and no analysis of the evidence or arguments was presented in the 08/23/2001
2003-03 Michael and Nancy B. McNamara v. Commissioner The Action on Decision reflects the Service's nonacquiescence as to whether farm rental income is includible in self-employment income if the lessor materially participates in farm production, but the lease agreement itself does not require the lessor to materially participate. 10/21/2003
2005-03 Montgomery v. Comm., 122 T.C. 1 (2004). This Action on Decision reflects the Service's acquiescence as to the Tax Court's rejection of the Service's interpretation of "underlying tax liability" and concluding that the term "underlying tax liability" encompasses the amounts the Service assessed for a particular tax period, including amounts assessed as deficiencies, amounts "self-assessed" under I.R.C. Section 6201(a) or a combination of such amounts.

RELEASE DATE: December 15, 2006 		12/15/2006
2007-02 Moore v. Comm., T.C. Memo. 2006-171, T.C. Dock. #11634-05L. Whether prohibited ex parte communications during a collection due process hearing before the Office of Appeals may be remedied by sharing the content of the communications with the taxpayer and allowing the taxpayer an opportunity to respond. RELEASE DATE: February 27, 2007 02/27/2007
2015-02 Morehouse v. Commissioner, 769 F.3d 616 (8th Cir. 2014) rev'g 140 T.C. 350 (2013) Nonacquiescence relating to the court’s holding that conservation reserve program payments
constituted rentals from real estate for purposes of section 1402(a)(1) and are't subject to selfemployment tax. 		09/23/2015
1999-03 Murillo v. Commissioner, T.C. Memo. 1998-13. This Action on Decision reflects the Service's acquiescence in the Court's conclusion, in this case, that the Individual Retirement Account (IRA) forfeiture was similar to the Service's levy on a Keogh account in Larotonda v. Commissioner, 89 T.C. 287 (1987) (involving the predecessor to section 72(t)), and was outside the class of early distributions that Congress intended to discourage in enacting section 72(t). 03/03/2000
1999-14 Mutual Assurance, Inc. v. United States, 56 F.3d 1353. Reflects the Service's nonacquiescence in the court's conclusion that held that a timely filed claim for refund that was allowed in full may be amended after the expiration of the statute of limitations for filing a claim for refund. The court relied on Bemis Brothers Bag Co. v. United States, 289 U.S. 28 (1933) which dealt with whether the original claim and the amended claim perfected after the limitations period had sufficient similarity for the amendment to 03/03/2000
2001-08 N.Dakota State Univ v. USA, 84 F. Supp. 1043 (D.N.D. 1999), The Eighth Circuit held that a payment made to a tenured faculty member under the taxpayer's early retirement program was made in exchange for the relinquishment of the tenured faculty member’s contractual and constitutionally-protected tenure rights rather than as remuneration for services to taxpayer. The court cited Rev. Rul. 58-301, 1958-1 C.B. 23, as support for its decision and rejected the government's argument that 01/01/2002
2007-01 North Dakota State Univ. v. U.S., 255 F.3d 599 (8th Cir. 2001). This AOD addresses whether early retirement payments that the taxpayer made to tenured faculty members are wages subject to Federal Insurance Contributions Act ("FICA") taxes. RELEASE DATE: January 18, 2006 01/18/2007
2011-03 O’Donnabhain v. Commissioner, 134 T.C. 34 (2010) Whether hormone therapy and sex reassignment surgery constitute medical care within the meaning of sections 213(d)(1)(A) and (9)(B). 11/02/2011
1999-04 Oshkosh Truck Corporation v. United States 123 F.3d 1477. Reflects the Service's acquiescence that a presumed markup percentage must be used in computing the vehicular excise tax on automotive articles sold to the United States directly by manufacturers when there are no retail sales outlets for such automotive articles. 03/03/2000
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