Term of the Commissioner of Internal Revenue 

Under 26 U.S.C. § 7803, the five-year term of the Commissioner of Internal Revenue runs from the 

date of appointment and is not calculated from the expiration of his predecessor’s term. 

December 4, 2007 

MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT 

The term of the Commissioner of Internal Revenue is set by 26 U.S.C. § 7803 

(2000), which provides in relevant part that the Commissioner “shall be appointed 

by the President, by and with the advice and consent of the Senate, to a 5-yearterm.” Id. § 7803(a)(1)(A). You have asked whether the term of the person 

appointed to serve a full term as Commissioner (rather than to fill a vacancy 

occurring before the expiration of a predecessor’s term) runs from the date of 

appointment or from the expiration of the predecessor’s term. We conclude that 

section 7803(a)(1)(A) provides that the term runs from the date of appointment.*

“As Attorney General Brewster explained more than a century ago, ‘[t]here are 

two kinds of official terms.’” United States v. Wilson, 290 F.3d 347, 353 (D.C. 

Cir. 2002) (quoting Commissioners of the District of Columbia, 17 Op. Att’y Gen. 

476, 476 (1882) (“D.C. Commissioners”)). The first type refers to a period of 

personal service. In that case, “the term is appurtenant to the person,” id. (quoting 

17 Op. Att’y Gen. at 476), and the term runs from the official’s date of appointment. Accordingly, a person appointed to serve a fixed term of years would be 

able to serve the full term before it expired. The second type refers to a “fixed slot 

of time to which individual appointees are assigned.” Id. (emphasis in original).

Such a term “runs with the calendar,” id., in fixed increments from the expiration 

of the predecessor’s term. Such a term of office would expire a given number of 

years after the expiration of the predecessor’s term, regardless of when the person

was appointed to the position.

Section 7803(a) establishes the office of the Commissioner of Internal Revenue 

and sets its term. It provides, in relevant part:

(1) Appointment. 

(A) In general. There shall be in the Department of the Treasury a 

Commissioner of Internal Revenue who shall be appointed by the 

President, by and with the advice and consent of the Senate, to a 

*

 Editor’s Note: After this opinion was issued, Congress amended 26 U.S.C. § 7803(a)(1) to alter 

the Commissioner’s term by providing that “[t]he term of the Commissioner of Internal Revenue shall 

be a 5-year term, beginning with a term to commence on November 13, 1997. Each subsequent term 

shall begin on the day after the date on which the previous term expires.” Pub. L. No. 110-176, § 1(a), 

121 Stat. 2532 (2008).

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5-year term. Such appointment shall be made from individuals 

who, among other qualifications, have a demonstrated ability in 

management.

(B) Vacancy. Any individual appointed to fill a vacancy in the position of Commissioner occurring before the expiration of the 

term for which such individual’s predecessor was appointed shall 

be appointed only for the remainder of that term.

(C) Removal. The Commissioner may be removed at the will of 

the President.

(D) Reappointment. The Commissioner may be appointed to more 

than one 5-year term.

Section 7803(a) explicitly provides that any individual appointed to fill a vacancy occurring before the expiration of the predecessor’s term “shall be appointed only for the remainder of that term,” id. § 7803(a)(1)(B), making clear that the 

term of a person appointed to fill a predecessor’s unexpired term “runs with the 

calendar.” Wilson, 290 F.3d at 353. The statute is silent, however, about the 

starting point of the term of a person appointed after the predecessor’s term 

expired (i.e., the term of a person who is not appointed to fill an unexpired term).

The presumption is that “when a statute provides for an appointee to serve a 

term of years, the specified time of service begins with the appointment.” Term of 

a Member of the Mississippi River Commission, 23 Op. O.L.C. 123, 123 (1999) 

(“Mississippi River Commission”); 63C Am. Jur. 2d Public Officers and Employees § 143 (1997). To depart from that rule requires “some apt expression of 

[legislative] intent.” D.C. Commissioners, 17 Op. Att’y Gen. at 477. Here, the 

legislative history strongly reinforces the presumption that the term runs from the 

date of appointment. The conference report on the legislation specifically states 

that “[t]he Commissioner is appointed to a 5-year term, beginning with the date of 

appointment.” H.R. Conf. Rep. No. 105-599, at 207 (emphasis added), reprinted in 

1998 U.S.C.C.A.N. 288, 302.1

That understanding is further confirmed by practice under section 7803. The 

only IRS Commissioner appointed since the 1998 enactment of the relevant 

provisions was nominated, confirmed, and appointed for a full five-year term. 

Mark Everson was nominated on January 22, 2003, for “a term of five years, vice 

1 Significantly, this language appears in a section of the House conference report explaining the 

general operation of section 7803. In a separate passage, the report also discusses the conferees’ 

understanding of the bill’s application to the incumbent, then-Commissioner Charles O. Rossotti. See 

H.R. Conf. Rep. No. 105-599, at 207, reprinted in 1998 U.S.C.C.A.N. at 302 (“The provision relating 

to the 5-year term of office applies to the Commissioner in office on the date of enactment. This 5-year 

term runs from the date of appointment.”).

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Charles Rossotti,” who was appointed Commissioner on November 13, 1997, and 

left office after a five-year term on November 12, 2002. 149 Cong. Rec. 1621 (Jan. 

22, 2003). Mr. Everson’s nomination was reported out by the Senate Committee 

on Finance with the recommendation that he be confirmed “for a term of five 

years.” 149 Cong. Rec. 8235 (Apr. 2, 2003). The Senate confirmed Mr. Everson as 

Commissioner on May 1, 2003, “for a term of five years,” 149 Cong. Rec. 10,391 

(May 1, 2003), and he was appointed on May 5, 2003, for a five-year term. That 

history indicates that the Senate Committee on Finance, the Senate, and the 

President all understood section 7803 to provide that Commissioner Everson 

would commence serving a full five-year term upon his appointment on May 5, 

2003. Had section 7803 been understood to create a term that ran from the 

expiration of his predecessor’s term, Mr. Everson instead would have been 

confirmed and appointed to serve a term of approximately four and a half years, 

expiring November 12, 2007.2

This reading of section 7803 is strongly supported by practice under similar 

statutes. The language and structure of 12 U.S.C. § 1462a (2006), governing the 

appointment of the Director of the Office of Thrift Supervision, is nearly identical 

to that of section 7803. Like section 7803, it provides that “[t]he Director shall be 

appointed for a term of 5 years,” and, like section 7803, it provides that a person 

appointed to fill “[a] vacancy in the position of Director which occurs before the 

expiration of the term . . . shall be appointed only for the remainder of such term.” 

Id. § 1462a(c)(2), (3)(A). The first Director appointed under that provision after its 

enactment in 1989, Timothy Ryan, was confirmed “for a term of 5 years.” 136 

2 A confirmation for a term commencing on appointment typically states that it is “for a term of x 

years,” while one for a term running from the date a predecessor’s term expired typically specifies the 

date on which the term shall be deemed to have commenced or its date of expiration. Compare, e.g., 

137 Cong. Rec. 33,978 (Nov. 22, 1991) (confirmation of Reggie Barnett Walton and Emmet Gael 

Sullivan as judges, each for “the term of 15 years”); id. (confirmation of Ernest Wilson Williams to be 

U.S. Attorney “for the term of 4 years”), with id. (confirmation of Lawrence B. Lindsey to be a member 

of the Board of Governors of the Federal Reserve System “for the unexpired term of 14 years from 

February 1, 1986”); id. (confirmation of H. Edward Quick, Jr. to be Commissioner of the Postal Rate 

Commission “for the term expiring November 22, 1996”); id. (confirmation of Trevor Alexander 

McClurg Potter and Scott E. Thomas to the Federal Election Commission, each “for a term expiring 

April 30, 1997”); id. (confirmation of Karen Borlaug Phillips to be member of the Interstate Commerce 

Commission “for a term expiring December 31, 1996”). This practice was observed around the time 

Mr. Everson was confirmed as Commissioner. On the day of Mr. Everson’s confirmation, Lawrence 

Mohr, Jr., and Sharon Falkenheimer were confirmed for staggered terms on the Board of Regents for 

the Uniformed Services University of the Health Sciences, see 10 U.S.C. § 2113(b) (2000), for terms 

expiring June 20, 2003 and June 20, 2007, respectively, see 149 Cong. Rec. 10,379 (May 1, 2003), and 

the Senate Judiciary Committee recommended confirmation of Adam Noel Torres to be U.S. Marshal 

(whose term runs from the date of appointment, see Farley v. United States, 139 F. Supp. 757, 757 (Ct. 

Cl. 1956)), “for the term of four years.” 149 Cong. Rec. 10,345 (May 1, 2003). See also, e.g., 149 

Cong. Rec. 12,944 (May 22, 2003) (confirmation of Mark Moki Hanohano to serve as U.S. Marshal 

“for a term of four years,” and confirmation of Michael E. Horowitz and Ricardo H. Hinojosa to 

staggered terms on the United States Sentencing Commission, see 28 U.S.C. § 992(a) (2000), each “for 

a term expiring October 31, 2007”).

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Cong. Rec. 6816 (Apr. 4, 1990). The second, Ellen Seidman, was nominated on 

February 6, 1997, well after the expiration of her predecessor’s term. Nonetheless, 

she was confirmed on October 23, 1997, “for a term of five years.” 143 Cong. 

Rec. 22,800 (Oct. 23, 1997); see also 143 Cong. Rec. 1685 (Feb. 6, 1997) 

(reporting nomination of “Ellen Seidman, of the District of Columbia, to be 

Director of the Office of Thrift Supervision for a term of 5 years, vice Timothy 

Ryan, resigned”); 143 Cong. Rec. 21,728 (Oct. 8, 1997) (reported from Senate 

Banking, Housing, and Urban Affairs Committee with recommendation for 

confirmation “for a term of five years”). When Ms. Seidman resigned before the 

end of her term, her successor, James Gilleran, was appointed “for the remainder 

of the term expiring October 23, 2002,” 147 Cong. Rec. 23,145 (Nov. 28, 2001), 

confirming that Ms. Seidman’s term ran from the date of her appointment and not 

from the date her predecessor’s term expired. See also 147 Cong. Rec. 23,146 

(Nov. 28, 2001); 147 Cong. Rec. 22,996 (Nov. 27, 2001) (Seidman nomination 

reported out of Committee); 147 Cong. Rec. 16,338 (Sept. 4, 2001) (nomination). 

The nomination and confirmation of John M. Reich to be Director underscore the 

understanding of the Senate and the President. On May 25, 2005, President Bush 

originally nominated Mr. Reich “for a term expiring October 23, 2007, vice James 

Gilleran, term expired,” 151 Cong. Rec. 11,191 (May 25, 2005), which would 

have reflected the understanding that Mr. Reich’s term would run from the 

expiration of his predecessor’s term. On June 6, 2005, the President withdrew that 

nomination and replaced it with a nomination for a full five-year term as Director. 

151 Cong. Rec. 11,673, 11,674 (June 6, 2005). On July 28, 2005, Mr. Reich’s 

nomination was reported out of Committee with a recommendation that he be 

confirmed “for a term of five years,” 151 Cong. Rec. 18,975 (July 28, 2005). The 

following day, the Senate unanimously confirmed Mr. Reich “to be Director of the 

Office of Thrift Supervision for a term of five years.” 151 Cong. Rec. 19,328, 

19,338 (July 29, 2005). 

Similar provisions for the Administrator of the Saint Lawrence Seaway Development Corporation, 33 U.S.C. § 982(a) (2000),3 and for the Special Counsel, 

5 U.S.C. § 1211(b) (2000),4 have been subject to the same consistent practice: 

persons filling a vacancy occurring before the expiration of their predecessor’s 

term serve out that term, but others serve a full term beginning on the date of their 

appointment. See Morton Rosenberg & Henry B. Hogue, Cong. Research Serv., 

3 Section 982 provides, “[t]he management of the corporation shall be vested in an Administrator 

who shall be appointed by the President, by and with the advice and consent of the Senate, for a term of 

seven years. Any Administrator appointed to fill a vacancy in that position prior to the expiration of the 

term for which his predecessor was appointed shall be appointed for the remainder of such term.” 4

 Section 1211(b) provides, in relevant part, “[t]he Special Counsel shall be appointed by the 

President, by and with the advice and consent of the Senate, for a term of 5 years. . . . A special 

Counsel appointed to fill a vacancy occurring before the end of a term of office of the Special 

Counsel’s predecessor serves for the remainder of the term.”

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Term of Office of the Commissioner of Internal Revenue at CRS-5 (Sept. 12, 

2007).

5

This consistent practice under a variety of similarly worded statutes strongly 

supports the understanding that Congress intended section 7803 to create a fiveyear term that runs from the date of appointment. Congress is presumed to be 

aware of consistent administrative practice when it legislates. See, e.g., Lorillard v. 

Pons, 434 U.S. 575, 580–81 (1978). By employing language that was subject to an 

established interpretation, Congress is presumed to have intended that interpretation to be given to the language of section 7803. See Comm’r v. Keystone Consol. 

Indus., Inc., 508 U.S. 152, 159 (1993). As the D.C. Circuit wrote in the context of 

determining the term of appointments, “Congress is presumed to preserve, not 

abrogate, the background understandings against which it legislates. ‘[L]ongstanding practices’ of the Executive Branch can ‘place[] a “gloss” on Congress’s 

action in enacting’ a particular provision. Here the consistent treatment of 

appointments by the Executive Branch provides such a ‘gloss.’” Wilson, 290 F.3d 

at 356 (quoting Ass’n of Civilian Technicians v. FLRA, 269 F.3d 1119, 1122 (D.C. 

Cir. 2001) (citations omitted)). Indeed, in the present case, the support from 

practice is even stronger, because that practice encompasses action not only of the 

Executive Branch, but also of the Senate, in its role of giving advice and consent 

to nominations.

It might be argued that Congress’s provision in section 7803(a)(1)(B) for filling 

a vacancy before the term expires suggests that every appointment as Commissioner must run with the calendar from the expiration of the predecessor’s term, 

and that otherwise, the provision for filling a vacancy to an unexpired term would 

serve no purpose. We disagree. Although the specific purpose of section 

7803(a)(1)(B) is not apparent from the legislative history, the provision would 

serve a valuable function even if Commissioners appointed after the expiration of 

5 See, e.g., 152 Cong. Rec. 21,648 (Sept. 29, 2006) (Collister Johnson, Jr., confirmed as Administrator 

of the Saint Lawrence Seaway Development Corporation “for a term of seven years” after expiration of 

predecessor’s term); 145 Cong. Rec. 15,349 (July 1, 1999) (Albert S. Jacquez confirmed as Administrator 

“for a term of seven years” after expiration of predecessor’s term); 141 Cong. Rec. 38,466 (Dec. 22, 1995) 

(Gail Clements McDonald confirmed for the remainder of “the term expiring March 20, 1998,” after 

Stanford E. Parris resigned four years into his seven-year term); 137 Cong. Rec. 6949 (Mar. 20, 1991) 

(Stanford E. Parris confirmed as Administrator for a term of 7 years after expiration of predecessor’s 

term); 149 Cong. Rec. 32,306 (Dec. 9, 2003) (Scott J. Bloch confirmed to be Special Counsel “for the term 

of five years” after expiration of predecessor’s term); 144 Cong. Rec. 5946 (Apr. 2, 1998) (Elaine D. 

Kaplan confirmed to be Special Counsel “for the term of five years” after expiration of predecessor’s 

term); 137 Cong. Rec. 33,978 (Nov. 22, 1991) (Kathleen Day Koch confirmed to be Special Counsel “for 

the term of 5 years” after expiration of predecessor’s term); 132 Cong. Rec. 21,412 (Aug. 13, 1986) (Mary 

F. Wieseman confirmed to be Special Counsel “for a term of 5 years” after expiration of predecessor’s 

term); 128 Cong. Rec. 25,930 (Sept. 29, 1982) (K. William O’Connor confirmed to be Special Counsel 

“for the remainder of the term expiring June 3, 1986,” after Alex Kozinski resigned one year into five-year 

term); 127 Cong. Rec. 11,147 (June 2, 1981) (Alex Kozinski confirmed to be Special Counsel “for a term 

of 5 years”).

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a predecessor’s term served a full five years from the date of appointment. The 

provision serves to prevent an outgoing President from extending the duration of 

his appointments by installing a new Commissioner immediately before leaving 

office.

United States v. Wilson does not support a contrary reading of section 7803. 

There, the D.C. Circuit held that the term of a member of the United States 

Commission on Civil Rights began and ended on fixed dates based on the 

staggered terms of initial commissioners, rather than running from the date of 

appointment of the individual member. 290 F.3d at 355. But the court’s conclusion 

in that case relied critically on the fact that Congress clearly intended for the 

members of the Commission, who were subject to statutory removal restrictions, 

see id. at 350, to serve staggered terms. That is a recognized exception to the 

general rule that a term in office runs from the date of appointment, because the 

terms of multi-member commissions with staggered terms are presumed to run 

from the expiration of the predecessor’s term to preserve staggering. See Mississippi River Commission, 23 Op. O.L.C. at 123. Moreover, the court emphasized 

that the “relevant practices of the Executive Branch which presumably informed 

Congress’s” understanding, as well as the “policy ramifications” of maintaining 

staggered terms, both supported the conclusion that the terms ran from the 

expiration of the predecessors’ terms. 290 F.3d at 354. Here, by contrast, there is 

no indication that the term of the Commissioner of Internal Revenue (who 

statutorily is subject to “remov[al] at the will of the President,” see 26 U.S.C. 

§ 7803(a)(1)(C)), is to be staggered.6 And whereas the court in Wilson emphasized 

that it was “the common practice of the Executive Branch in making appointments 

to staggered boards and commissions” for terms to run “from the expiration of 

their predecessors’ term,” 290 F.3d at 354–55, here—outside the context of a 

multi-member board with staggered terms—the consistent practice of both the 

6 Nor do we believe that the term of the Commissioner, because of his service on the Internal 

Revenue Service Oversight Board (“Board”), see 26 U.S.C. § 7802(b)(1)(C), is staggered to fit into the 

appointment regime for that body such that his term as Commissioner would run with the calendar. Six 

members of the Board are appointed by the President with the Senate’s advice and consent to serve 

terms that the statute explicitly requires to be staggered. See id. § 7802(b)(2)(B). Both the Secretary of 

the Treasury (or the Deputy Secretary, if designated by the Secretary) and the Commissioner are 

members but, unlike the other members, they have no terms on the Board, staggered or otherwise. See 

id. § 7802(b)(1)(B), (b)(2)(B). Moreover, the provision requiring staggering is explicitly limited to the 

six other members. See id. § 7802(b)(2)(B). See generally Russello v. United States, 464 U.S. 16, 23 

(1983) (“[W]here Congress includes particular language in one section of a statute but omits it in 

another section of the same Act, it is generally presumed that Congress acts intentionally and purposely 

in the disparate inclusion or exclusion.”) (internal quotation marks omitted). Significantly, when 

members of the Board are confirmed, they are confirmed for terms expiring on specific dates. See, e.g., 

151 Cong. Rec. S2874 (daily ed. Mar. 16, 2005) (confirmation of Raymond Thomas Wagner, Jr., to 

Board “for a term expiring September 14, 2009”); 150 Cong. Rec. S8791 (daily ed. July 22, 2004) 

(confirmation of Charles L. Kolbe to Board “for the remainder of the term expiring September 14, 

2004”); see also 150 Cong. Rec. S8473 (daily ed. July 20, 2004) (Senate Committee on Finance 

recommending confirmation of Paul Jones to Board “for a term expiring September 14, 2008”). 

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Executive Branch and Congress under similar statutes is that the term of officials 

whose predecessor’s term expired runs from the date of appointment.

Nor does Wilson reject that idea that Congress could intend for a Commissioner 

to serve a full term if he was appointed after the expiration of his predecessor’s 

term, but serve only a partial term if he was appointed to fill the unexpired term of 

his predecessor. Under the circumstances of that case, the court rejected the idea 

that the single phrase “the term of office of each member of the Commission” had 

“two different meanings for two distinct classes of commissioner.” Id. at 356. 

Under the interpretation rejected by the court, “when an appointee’s predecessor 

had served out her full term, but there was a delay in the nomination of the new 

appointee, that new appointee could permissibly serve less than a full six years,” 

but “when the appointee is replacing a predecessor who had failed to serve out a 

full term, . . . the new appointee should serve a new, full six years from the date of 

her appointment.” Id. at 355. The court commented that “[w]e have difficulty 

believing that Congress sub silentio created two different tracks.” Id. But our 

reading would not result in a “two-track” system; every “term,” as that word is 

used in the statute, would be a five-year term running from the appointment of 

Commissioners succeeding a predecessor’s expired term. That is true whether the 

person is appointed to serve a full term or appointed to fill a vacancy in an 

unexpired term. 7 In any event, Wilson only addressed whether such a distinction 

should be drawn where Congress had not explicitly spoken to the issue. But here, 

Congress did not act sub silentio. The legislative history explicitly states that the 

Commissioner “is appointed to a 5-year term, beginning with the date of appointment.” H.R. Conf. Rep. No. 105-599, at 207 (emphasis added), reprinted in 1998 

U.S.C.C.A.N. at 302. Particularly in light of consistent practice under several 

similarly worded statutes, nothing in Wilson suggests that the Commissioner’s 

term must run from the date a predecessor’s term expired.

We are aware that a memorandum prepared by staffers of the Congressional 

Research Service has concluded that, “[w]hile the matter is not free from doubt, it 

is likely that a reviewing court would hold that Congress intended to establish a 

continuous tenure design for the Office of Commissioner” under which each 

Commissioner’s tenure would be based on five-year increments from the end of 

Commissioner Rossotti’s term as Commissioner. Term of Office of the Commissioner of Internal Revenue at CRS-15. We do not find that analysis persuasive. 

First, it disregards relevant legislative history. The memorandum does not discuss 

or even acknowledge the portion of the House Conference Report explicitly stating 

that the term of the IRS Commissioner runs from appointment. See id. at CRS-10 

7 Thus, for example, a nominee to fill the remainder of Commissioner Everson’s five-year term 

would be able to serve until May 4, 2008, five years from the date of Commissioner Everson’s 

appointment. But if the same person were then reappointed to a new term, he would serve “a 5-year 

term” from the date of his reappointment. In both instances, the “term” would be a five-year term 

running from the appointment of a Commissioner succeeding a predecessor’s expired term.

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to CRS-12. That legislative history is unambiguous and cannot be reconciled with 

the view taken in the CRS memorandum. Second, the memorandum notes the 

substantial practice that accords with, and supports, the view of the statute that we 

take here, see id. at CRS-4 to CRS-5; however, instead of giving weight to that 

practice, as cases like Wilson require, see 290 F.3d at 356, the memorandum 

simply dismisses the practice as contrary to the authors’ reading of the statutory 

language in the abstract. Contrary to the memorandum, we believe that the 

practice of both the Executive Branch and the Senate, in its role of giving advice 

and consent, tends to establish the correct reading of the statute.

JOHN P. ELWOOD 

Deputy Assistant Attorney General 

Office of Legal Counsel

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