Representation before the IRS · Legal Authority and References
IRS forms, instructions and publications
tax year · reviewed 2026-08-18 · I. Ohu
Publications are where most taxpayers, and a good many practitioners, actually learn the law. They are also not authority, and the IRS says so twice over — in its own examiner manual and on a page written specifically to explain what may and may not be relied on. But the topic does not end there, because the same IRS page says that reasonable reliance can still defeat a penalty. Getting both halves right is the whole skill.
The rule
What a publication is for. “IRS Publications explain the law in plain language for taxpayers and their advisors. They typically highlight changes in the law, provide examples illustrating IRS positions, and include worksheets” (IRM 4.10.7.2.7).
And what it is not. See the figures table. “Publications are nonbinding on the IRS and do not necessarily cover all positions for a given issue. While a good source of general information, publications should not be cited to sustain a position” (IRM 4.10.7.2.7).
The wider category. The IRS groups forms, instructions, publications and IRS.gov webpages together as informal guidance — see the figures table. It “allows the IRS to more quickly provide administrative, educational, and procedural information,” and, like FAQs, it “does not apply the law to taxpayer-specific facts and may not reflect various special rules or exceptions.”
Only the Bulletin has precedential value. “Informal guidance has not been published in the Bulletin and will not be relied on, used, or cited as precedents by Service personnel in the disposition of cases.” And see the figures table: if it “turns out to be an inaccurate statement of the law as applied to a particular taxpayer’s case, the law will control the taxpayer’s tax liability. Only guidance that is published in the Bulletin has precedential value.”
The other half — reliance and penalties. See the figures table. “Notwithstanding the non-precedential nature of informal guidance,” a taxpayer who shows they relied in good faith and that the reliance was reasonable based on all the facts and circumstances “will not be subject to a penalty that provides a reasonable cause standard for relief, including a negligence penalty or other accuracy-related penalty, to the extent that reliance results in an underpayment of tax” (Reg. § 1.6664-4(b)).
One narrow route to authority. See the figures table. FAQs published in a Fact Sheet linked to an IRS news release “are considered authority for purposes of the exception to accuracy-related penalties that applies when there is substantial authority” (Reg. § 1.6662-4(d)). FAQs not published in the Bulletin are not.
Erroneous written advice. Separately from the reasonable cause route, IRC § 6404(f) requires abatement of a penalty or addition to tax attributable to erroneous written advice furnished by the IRS in response to a written request, where the taxpayer reasonably relied on it and provided adequate and accurate information.
Forms and instructions are not the same as publications. A form and its instructions are how a return is made. Their content is procedural and administrative, and they are informal guidance for reliance purposes — but the return position they produce still has to be supportable from the Code, the regulations and the Bulletin.
Current figures
| Item | Rule | Authority |
|---|---|---|
| Status of publications | IRS publications explain the law in plain language, highlight changes, give examples of IRS positions and include worksheets — but they are nonbinding on the IRS, do not necessarily cover all positions for an issue, and "should not be cited to sustain a position"TY2026 | IRM 4.10.7.2.7 |
| Informal guidance | forms, instructions, publications and IRS.gov webpages — they do not apply the law to taxpayer-specific facts, may not reflect special rules or exceptions, have not been published in the Internal Revenue Bulletin, and "will not be relied on, used, or cited as precedents by Service personnel in the disposition of cases"TY2026 | IRS reliance page |
| The law controls | if information in informal guidance or an FAQ turns out to be an inaccurate statement of the law as applied to a particular taxpayer's case, the law controls the taxpayer's tax liability — only guidance published in the Internal Revenue Bulletin has precedential valueTY2026 | IRS reliance page |
| Reliance and penalties | a taxpayer who shows reliance in good faith that was reasonable on all the facts and circumstances will not be subject to a penalty carrying a reasonable cause standard — including a negligence or other accuracy-related penalty — to the extent the reliance results in an underpaymentTY2026 | Reg. § 1.6664-4(b) |
| Fact Sheet FAQs | FAQs published in a Fact Sheet linked to an IRS news release are considered authority for the substantial authority exception to accuracy-related penalties; FAQs not published in the Bulletin are notTY2026 | Reg. § 1.6662-4(d) |
| Erroneous written advice | the request must be submitted within the period allowed for collection of the penalty or addition to tax, or the penalty must have been paid within the period allowed for claiming a credit or refund of itTY2026 | IRC § 6404(f) |
How it works in practice
Never cite a publication to sustain a position. The IRS’s own manual tells examiners that publications “should not be cited to sustain a position.” A protest built on Publication 17 has cited nothing. Find the Code section, regulation or ruling the publication is summarising, read it, and cite that.
Use the publication as an index, not as an authority. Publications are written by people who know where the law is. They are an excellent way to find the provision quickly and a poor way to prove it. The research move is publication → statute → regulation → Bulletin guidance, and the file contains the last three.
The two halves point in opposite directions, and both are true. A publication cannot support the position on the merits — the law controls, and if the publication is wrong the taxpayer still owes the tax. But reasonable good-faith reliance on it can defeat a penalty carrying a reasonable cause standard. So the client who followed a publication and was wrong may owe the tax and interest and not the accuracy-related penalty. Advise on those separately.
Document the reliance while it is contemporaneous. The protection depends on showing good faith and reasonableness “based on all the facts and circumstances.” That is far easier with a dated print or screenshot of the page or publication as it read at the time than with a recollection two years later, particularly because IRS.gov pages change without notice.
The Fact Sheet FAQ carve-out is narrow and worth knowing. An FAQ published in a Fact Sheet linked to an IRS news release counts as authority for the substantial authority exception. An FAQ sitting on a webpage does not. If a client’s position rests on an FAQ, find out which kind it is — and keep the Fact Sheet.
Section 6404(f) needs writing on both sides. Erroneous advice abatement requires the advice to have been written, given in response to a written request, reasonably relied on, and based on adequate and accurate information the taxpayer supplied. A telephone call does not qualify however clear the answer was. Where a client is asking the IRS a question that matters, get the question and the answer in writing.
Instructions carry weight where the question is procedural. Much of what the instructions to a form say is about how to file, where to send it and what to attach — and on that ground they are the operative statement of what the Service will accept. The distinction is between procedure, where instructions are effectively the rule, and substance, where they are a summary of law found elsewhere.
Publications go stale on a schedule. Each carries a revision date, and a publication revised for one tax year may not reflect legislation enacted since. Where a page relies on a publication, the revision date belongs in the citation — and where the publication predates a change, it is describing superseded law.
The protest built on a publication
A representative's protest quotes three paragraphs of an IRS publication supporting the client's treatment, and cites nothing else. The Appeals officer says the publication is not authority.
Analysis. The officer is right, and the IRS says so to its own people: IRM 4.10.7.2.7 states that publications "should not be cited to sustain a position." The work is recoverable — the publication was summarising something, and that something is likely a Code section, a regulation or a revenue ruling. Find it, read it, and re-file on the underlying authority. Keep the publication in the file for the separate penalty argument.
The client who followed the publication and lost
A client reported an item exactly as an IRS publication described. On examination the treatment is disallowed because the publication was an incomplete statement of a rule with an exception the client fell into. The examiner proposes an accuracy-related penalty.
Analysis. Two different answers. On the tax, the client loses: informal guidance that "turns out to be an inaccurate statement of the law as applied to a particular taxpayer's case" does not displace the law, which "will control the taxpayer's tax liability." On the penalty, the client should win: the IRS states that a taxpayer showing good-faith reliance that was reasonable on all the facts and circumstances "will not be subject to a penalty that provides a reasonable cause standard for relief," citing Reg. § 1.6664-4(b). Concede the tax, contest the penalty, and put the publication as it then read into the file.
The FAQ that was not a Fact Sheet
A client's position rests on an FAQ found on IRS.gov. The representative proposes to argue substantial authority on the strength of it.
Analysis. Check where it was published. The IRS states that FAQs published in a Fact Sheet linked to an IRS news release are considered authority for the substantial authority exception, and that FAQs not published in the Bulletin "will not be relied on, used, or cited as precedents by Service personnel." A webpage FAQ is not in either category. It may still support a reasonable cause argument on the penalty; it will not support substantial authority.
The telephone answer
A client telephoned the IRS, described the situation, was told the treatment was correct, noted the name of the assistor and the date, and filed accordingly. A penalty is now proposed.
Analysis. IRC § 6404(f) does not reach it. Abatement of a penalty attributable to erroneous advice requires the advice to have been written and furnished in response to a written request, with the taxpayer having supplied adequate and accurate information and having reasonably relied on the response. A telephone call meets none of the writing requirements. The client's remaining argument is reasonable cause under Reg. § 1.6664-4(b) on all the facts and circumstances, where the contemporaneous note of the call, the date and the assistor's identification number are the evidence.
Publications should not be cited to sustain a position. The IRS tells its own examiners so.
If informal guidance is wrong, the law controls the liability. Only guidance published in the Internal Revenue Bulletin has precedential value.
Reliance still defeats a penalty. Good-faith, reasonable reliance on informal guidance answers any penalty carrying a reasonable cause standard.
IRC § 6404(f) needs writing on both sides — written advice in response to a written request. A telephone answer does not qualify.
How this has changed
The IRS published a page specifically to settle this. The reliance overview exists because taxpayers were relying on FAQs and webpages that the Service did not treat as binding. Its stated purpose is “to confirm/explain that FAQs generally cannot be relied upon and describe authority that can be relied upon.” The page relied on here was last reviewed 5 December 2025.
The Fact Sheet FAQ route is the newer part. Treating FAQs published in a Fact Sheet linked to a news release as authority for the substantial authority exception was announced as a change in IRS practice, and it is the one place where an FAQ crosses into the Reg. § 1.6662-4(d) analysis. Older material treating all FAQs alike is out of date in both directions.
The penalty protection was made explicit at the same time. The Service’s statement that reasonable good-faith reliance on an FAQ — “even one that is subsequently updated or modified” — is relevant to penalties addressed the practical unfairness of guidance changing under taxpayers. The same treatment is extended in terms to forms, instructions, publications and IRS.gov webpages.
IRM 4.10.7.2.7 is old and unchanged. It carries a revision date of 1 January 2006. Its statement that publications are nonbinding and should not be cited to sustain a position has not needed revising, and it remains the clearest instruction the Service gives its own examiners on the point. Subject to the standing caution that the Manual is under revision and posted content may lag.
Exam focus
Know that publications, forms, instructions and IRS.gov webpages are informal guidance, are not authority, and “should not be cited to sustain a position.”
Know that only guidance published in the Internal Revenue Bulletin has precedential value, and that where informal guidance misstates the law, the law controls the liability.
Know the other half: reasonable, good-faith reliance on informal guidance defeats any penalty carrying a reasonable cause standard, including accuracy-related penalties (Reg. § 1.6664-4(b)).
Know the narrow exception: FAQs published in a Fact Sheet linked to an IRS news release are authority for the substantial authority exception.
Know that IRC § 6404(f) abatement requires written advice in response to a written request, reasonable reliance, and adequate and accurate information from the taxpayer.
Know the research order: publication to find it, Code and regulations and Bulletin to prove it.
Check yourself
1. May an IRS publication be cited to sustain a position on examination? (A) Yes — it is IRS guidance (B) Yes, if current for the tax year (C) No — the IRS instructs its own examiners that publications should not be cited to sustain a position (D) Yes, but only in Appeals Answer: C. IRM 4.10.7.2.7. Publications are nonbinding and do not necessarily cover all positions for an issue.
2. A taxpayer follows an IRS publication that turns out to misstate the law. What is the effect on the tax? (A) The publication controls (B) The law controls the taxpayer’s liability (C) The tax is abated automatically (D) The IRS is estopped from collecting Answer: B. Only guidance published in the Internal Revenue Bulletin has precedential value.
3. Same taxpayer, and an accuracy-related penalty is proposed. What is the argument? (A) None — the position was wrong (B) Reasonable good-faith reliance on the publication, which answers a penalty carrying a reasonable cause standard (C) That the publication is authority (D) That the IRS must abate under § 6404(f) Answer: B. Reg. § 1.6664-4(b), and the IRS states this expressly for forms, instructions, publications and webpages.
4. Which FAQs count as authority for the substantial authority exception? (A) All FAQs on IRS.gov (B) None (C) FAQs published in a Fact Sheet linked to an IRS news release (D) FAQs more than one year old Answer: C. FAQs not published in the Bulletin will not be cited as precedent by Service personnel.
5. What does IRC § 6404(f) require before a penalty attributable to erroneous IRS advice is abated? (A) Any IRS advice the taxpayer relied on (B) Written advice given in response to a written request, reasonably relied on, with adequate and accurate information supplied (C) Advice from a revenue agent (D) A private letter ruling Answer: B. A telephone answer does not qualify, however clear it was.
Change log
- Initial publication from the IRS reliance page (last reviewed 5 December 2025), IRM 4.10.7, Reg. § 1.6664-4 and IRC § 6404.