¶1dissenting: The majority hold that respondent’s position in Phillips v. Commissioner, 86 T.C. 433 (1986), was unreasonable. In that case, respondent relied on our holding in Durovic v. Commissioner, 54 T.C. 1364 (1970), affd. on this issue 487 F.2d 36 (7th Cir. 1973). I joined in this Court’s opinion in Phillips, overruling our prior holding in Durovic. However, I believe that it was not unreasonable for respondent to have relied on our holding in Durovic until that holding was overruled.
¶2Section 7430 provides for the award of litigation costs under certain circumstances. As the majority note, this exception to the American Rule has been crafted by the Congress. An examination of the language of the statute makes it plain that the Congress had several purposes in enacting this provision. It is clear that one of those purposes is compensatory. However, the Congress did not merely provide that the successful litigant is to be awarded litigation costs; the Congress also required that the successful litigant establish “that the position of the United States in the civil proceeding was unreasonable”.
¶3Although we concluded, in Phillips v. Commissioner, supra, that our opinion in Durovic v. Commissioner, supra, was in error, we had relied on Durovic for 16 years before we overruled it.
¶4The question in the instant proceeding is not whether our opinion in Durovic was reasonable. Rather, the question is whether it was unreasonable for respondent to rely on that opinion merely because that opinion conflicted with respondent’s rulings. On many occasions, we have made clear our views as to the status of respondent’s rulings, whether those rulings are relied on by petitioners or by respondent. Indeed, just 3 weeks before our opinion was filed in Phillips v. Commissioner, supra, we stated as follows in Stark v. Commissioner, 86 T.C. 243, 250-251 (1986):
Both petitioner and respondent cite revenue rulings in support of then-respective positions. Petitioner relies primarily upon Rev. Rul. 75-66, 1975-1 C.B. 85; Rev. Rul. 77-148, 1977-1 C.B. 63; and Rev. Rul. 75-373, 1975-2 C.B. 77. Respondent relies upon Rev. Rul. 76-331, 1976-2 C.B. 52. Both parties assert that revenue rulings “should be given weight” in this Court under Bob Jones University v. United States, 461 U.S. 574 (1983); Macey’s Jewelry Corp. v. United States, 387 F.2d 70 (5th Cir. 1967); and Neuhoff v. Commissioner, 75 T.C. 36 (1980), affd. 669 F.2d 291 (5th Cir. 1982).
Absent special circumstances, a revenue ruling merely represents the Commissioner’s position with respect to a specific factual situation. See Stubbs, Overbeck & Associates, Inc. v. United States, 445 F.2d 1142, 1146-1147 (5th Cir. 1971); Crow v. Commissioner, 85 T.C. 376, 389 (1985), and cases cited therein. We find nothing in the cases cited by the parties that undermines this well-established principle. Whereas this Court or any other court may adopt the conclusion and rationale of a revenue ruling, revenue rulings typically do not constitute substantive authority for a position. As we stated in Neuhoff v. Commissioner, 75 T.C. at 46:
“A revenue ruling does not constitute authority for deciding a case in this Court. We would decide this issue irrespective of the existence or nonexistence of a revenue ruling. We agree with the Court of Appeals for the Second Circuit in Bankers Trust Co. v. Commissioner, supra, and we agree with the conclusion reached in Rev. Rul. 76-68, not because we rely upon it for authority, but because we conclude it is correct. Cf. Ludwig v. Commissioner, 68 T.C. 979 (1977).”
Thus, while we shall examine the above revenue rulings, the conclusions reached in this case are our own.3
¶5To the same effect, see Haley Bros. Construction v. Commissioner, 87 T.C. 498, 516-517 (1986).
¶6We have recently held that respondent acted unreasonably because he ignored our prior opinions. Minahan v. Commissioner, 88 T.C. 492, 497-501 (1987). Now the majority propose to hold that respondent acted unreasonably because he followed a long line of Tax Court opinions, instead of following his own revenue rulings.
¶7Respectfully, I dissent.
¶8Since 1980, we relied on Durovic v. Commissioner, 54 T.C. 1364 (1970), affd. on this issue 487 F.2d 36 (7th Cir. 1973), in Thompson v. Commissioner, 78 T.C. 558, 561 (1982); Larvin v. Commissioner, T.C. Memo. 1985-385; Counts v. Commissioner, T.C. Memo. 1984-561, affd. 774 F.2d 426 (11th Cir. 1985); Smalldridge v. Commissioner, T.C. Memo. 1984-434, affd. 804 F.2d 125 (10th Cir. 1986); Morgan v. Commissioner, T.C. Memo. 1984-384, affd. 807 F.2d 81 (6th Cir. 1986); Hogge v. Commissioner, T.C. Memo. 1984-129; Thomas v. Commissioner, T.C. Memo. 1984-72; Rhoades v. Commissioner, T.C. Memo. 1983-608; Sommer v. Commissioner, T.C. Memo. 1983-196; Scholle v. Commissioner, T.C. Memo. 1982-267; Adams v. Commissioner, T.C. Memo. 1982-223, affd. in an unpublished opinion 732 F.2d 159 (7th Cir. 1984); Funk v. Commissioner, T.C. Memo. 1981-506, affd. on other issues 687 F.2d 264 (8th Cir. 1982); Lee v. Commissioner, T.C. Memo. 1981-26, affd. on other issues 723 F.2d 1424 (9th Cir. 1984); and Conovitz v. Commissioner, T.C. Memo. 1980-22. In addition, we relied on Durovic in numerous cases in the 1970’s.
¶9See Larvin, Smalldridge, Morgan, Hogge, Thomas, and Rhoades, in note 1 supra.
¶10In Silco, Inc. v. United States, 779 F.2d 282 (5th Cir. 1986), the Fifth Circuit Court of Appeals, to which this case is appealable, held that the taxpayer was entitled to rely upon a revenue ruling that provided “the only insight available to … [the] taxpayer at the time of the … transaction as to the conceptual approach the IRS would use to determine the tax consequences.” 779 F.2d at 287. See Statement of Procedural Rules, 26 C.F.R. sec. 601.601(d)(2)(v)(e). While Silco supports our holding herein, we rely upon our own analysis of the substantive issue.