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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 10, 2003 Decided December 2, 2003

No. 02-5278

TAX ANALYSTS,

APPELLANT

v.

INTERNAL REVENUE SERVICE,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 00cv02914)

William A. Dobrovir argued the cause for appellant. With

him on the briefs was Cornish F. Hitchcock.

Jonathan S. Cohen, Attorney, U.S. Department of Justice,

argued the cause for appellee. With him on the brief were

Roscoe C. Howard Jr., U.S. Attorney, and Teresa T. Milton,

Attorney, U.S. Department of Justice. R. Craig Lawrence,

Assistant U.S. Attorney, entered an appearance.

 Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.
2

Before: HENDERSON, TATEL, and ROBERTS, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge: Acting pursuant to Treasury Department regulations, the Internal Revenue Service refused

to disclose certain written determinations denying or revoking tax exemptions. The district court found the IRS’s

refusal lawful. Because we conclude that the regulations

violate the unambiguous language of the Internal Revenue

Code, we reverse.

I.

Appellant Tax Analysts, a non-profit organization that publishes news and commentary on tax issues, sought disclosure

of IRS determinations denying or revoking the tax-exempt

status of various organizations. To understand the basis for

this request—Internal Revenue Code section 6110—and the

IRS’s reasons for denying it, we think it helpful to provide

some background on the statutory scheme governing disclosure of tax information.

Congress enacted the Tax Reform Act of 1976, Pub. L. No.

94–455, 90 Stat. 1520 (1976), in response to concerns about

possible government misuse of tax information. See S. REP.

NO. 94–938, pt. 1, at 317 (1976), reprinted in 1976

U.S.C.C.A.N. 2897, 3746–47 (noting that questions had been

raised with respect to ‘‘disclosure of tax information to the

White House’’ and ‘‘whether tax returns and tax information

should be used for any purposes other than tax administration’’). As amended by that Act and subsequent legislation,

the Internal Revenue Code protects the confidentiality of tax

returns and return information, such as taxpayers’ source of

income, net worth, and tax liability. At the same time, the

Code requires the IRS to disclose certain information. Two

Code provisions governing disclosure of tax-related information are relevant here: sections 6104 and 6110. See 26 U.S.C.

§§ 6104, 6110 (2000 & Supp. III 2003).

Section 6110 applies to written determinations, i.e., IRS

responses to taxpayer inquiries regarding how tax laws apply
3

to particular facts. See id. § 6110(b)(1)(A) (defining ‘‘written

determination’’ as a ‘‘ruling, determination letter, technical

advice memorandum, or Chief Counsel advice’’). Section 6110

provides: ‘‘Except as otherwise provided in this section, the

text of any written determination and any background file

document relating to such written determination shall be

open to public inspection at such place as the Secretary may

by regulations prescribe.’’ Id. § 6110(a). In order to balance

the competing values of public disclosure and taxpayer privacy, however, section 6110 requires that before making a

written determination available for public inspection, the IRS

must delete certain identifying information, i.e., ‘‘the names,

addresses, and other identifying details of the person to

whom the written determination pertainsTTTT’’ Id.

§ 6110(c)(1).

Although section 6110 governs most written determinations, it does not apply to all. Section 6110(l )(1)—one of the

two provisions at issue in this case—provides that section

6110’s disclosure rule ‘‘shall not apply to TTT any matter to

which section 6104 TTT applies.’’ Id. § 6110(l )(1). Section

6104 makes available for public inspection tax information

relating to specified entities. One of section 6104’s subsections, 6104(a)(1)(A)—the other provision at issue in this

case—requires the IRS to disclose documents relating to taxexempt organizations, including applications for exempt status, supporting materials, and IRS determinations granting

those exemptions. Id. § 6104(a)(1)(A). Specifically, subsection 6104(a)(1)(A) states:

If an organization TTT is exempt from taxation TTT

for any taxable year TTT, the application filed by the

organization with respect to which the Secretary [of

the Treasury] made his determination that such

organization was entitled to exemption TTT or notice

of status filed by the organization TTT, together with

any papers submitted in support of such application

or notice, and any letter or other document issued

by the Internal Revenue Service with respect to
4

such application or notice shall be open to public

inspectionTTTT

Id. Unlike section 6110, section 6104 contains no provision

for redacting identifying information; therefore, the IRS

must fully disclose determinations granting tax-exempt status.

Two Treasury regulations add another layer to this statutory scheme. Unlike the Code’s general mandate requiring

disclosure of written determinations in redacted form, see id.

§ 6110(a), and its more specific requirement that the IRS

disclose determinations granting tax-exempt status in unredacted form, see id. § 6104(a)(1)(A), the regulations provide

that the IRS will not disclose determinations denying or

revoking tax-exempt status in any form. The first regulation,

Treas. Reg. § 301.6110–1(a), provides that section 6104 applies not only to determinations granting tax-exempt status,

but also to denials and revocations:

Matters within the ambit of section 6104 include:

Any application filed with the Internal Revenue

Service with respect to the qualification or exempt

status of an organization TTT [and] any document

issued by the Internal Revenue Service in which the

qualification or exempt status of an organization TTT

is granted, denied or revokedTTTT

Id. § 301.6110–1(a) (1977). The second regulation, Treas.

Reg. § 301.6104(a)–1(i), provides that the IRS will not disclose such denials and revocations at all:

Some determination letters and other documents

relating to tax exempt organizations that are not

open to public inspection under section 6104(a)(1)(A)

and this section are nevertheless within the ambit of

section 6104 for purposes of section 6110. These

determination letters and other documents are

therefore not available for public inspection under

either section 6104 or section 6110. They include

but are not limited to—

(1) Unfavorable rulings or determination letters TTT

issued in response to applications for tax exemption,

(2) Rulings or determination letters revoking or

modifying a favorable determination letter TTT,
5

(3) Technical advice memoranda TTT relating to a

disapproved application for tax exemption or the

revocation or modification of a favorable determination letterTTTT

Id. § 301.6104(a)–1(i) (1982).

On the basis of these two regulations, the IRS denied Tax

Analysts’s request. After exhausting its administrative remedies, Tax Analysts filed suit in the U.S. District Court for the

District of Columbia, arguing that the regulations conflict

with IRC section 6110’s plain language. The IRS responded

that section 6110 is ambiguous and that the Treasury regulations reflect a reasonable interpretation of it. The district

court granted summary judgment to the IRS, sustaining the

agency’s refusal to disclose the requested information. See

Tax Analysts v. IRS, 215 F. Supp. 2d 192, 194 (D.D.C. 2002).

Tax Analysts now appeals. Our review is de novo. Nat’l

Mining Ass’n v. Fowler, 324 F.3d 752, 756 (D.C. Cir. 2003).

II.

Because Tax Analysts claims that the Treasury regulations

violate the Internal Revenue Code, we proceed in accordance

with Chevron U.S.A. Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984). We first ask, as always,

‘‘whether Congress has directly spoken to the precise question at issue.’’ Id. at 842. If it has, both we and the IRS

‘‘must give effect to the unambiguously expressed intent of

Congress.’’ Id. at 842–43. We evaluate the statute’s clarity

without deference to the agency’s interpretation. See SBC

Communications Inc. v. FCC, 138 F.3d 410, 418–19 (D.C. Cir.

1998). Only if we find the statute either silent or ambiguous

with respect to the question at issue do we proceed to

Chevron’s second step, asking whether the agency’s interpretation is ‘‘based on a permissible construction of the statute.’’

Chevron, 467 U.S. at 842–43.

At the outset, we note that the IRS does not argue that

documents denying or revoking tax-exempt status are not

‘‘written determinations’’ within the meaning of section 6110.
6

Instead, it argues that such determinations fall within the

exception to section 6110’s disclosure provisions. According

to the IRS, section 6110(l )(1)’s phrase ‘‘matter to which

section 6104 TTT applies’’ is ambiguous and can be understood

to include any document pertaining to an organization’s qualification for tax-exempt status. In other words, section

6110(l )(1) can be read to mean that section 6104 ‘‘applies’’ not

only to determinations granting tax-exempt status, as provided for in that section, but also to determinations denying or

revoking tax-exempt status. Thus, the IRS argues, its inclusion of denials and revocations ‘‘within the ambit’’ of section

6104 represents a reasonable interpretation of section 6110—

an interpretation to which we owe Chevron deference.

Tax Analysts has a very different view of the statute.

Seeing nothing ambiguous in section 6110, Tax Analysts

argues that the phrase ‘‘matter to which section 6104 TTT

applies’’ can cover nothing more than what section 6104

expressly covers, i.e., documents relating to exempt organizations. According to Tax Analysts, therefore, determinations

denying or revoking tax-exempt status fall under section 6110

and must be disclosed in redacted form.

To resolve this debate, we use the ‘‘traditional tools of

statutory interpretation—text, structure, purpose, and legislative history.’’ Pharm. Research & Mfrs. of Am. v. Thompson, 251 F.3d 219, 224 (D.C. Cir. 2001). Beginning with text,

we discern no ambiguity. Section 6110 is straightforward: it

requires the redacted disclosure of written determinations

but exempts ‘‘any matter to which section 6104 TTT applies.’’

26 U.S.C. § 6110(l )(1). Subsection 6104(a)(1)(A), in turn,

covers only tax-exempt organizations. It begins by expressly

limiting its scope to exempt organizations—‘‘[i]f an organization TTT is exempt from taxation’’—and then requires full

disclosure of determinations granting tax-exempt status. Id.

§ 6104(a)(1)(A). Subsection 6104(a)(1)(A) says nothing about

documents relating to non-exempt organizations. See id.

Undaunted, the IRS insists that Congress intended section

6104 to govern determinations denying or revoking tax-
7

exempt status. According to the IRS, because subsection

6104(a)(1)(A) requires disclosure of determinations granting

tax exemptions and says nothing with respect to denials and

revocations, one can conclude through ‘‘negative implication’’

that Congress did not intend disclosure of denials or revocations. We disagree.

Subsection 6104(a)(1)(B), the provision immediately following subsection 6104(a)(1)(A), demonstrates that Congress

knew exactly how to refer to denials and revocations when it

so intended. That subsection addresses disclosure of applications and written determinations regarding tax exemptions

for certain pension, retirement, profit-sharing, or stock bonus

plans. See id. § 6104(a)(1)(B). It requires that the IRS

make available for public inspection ‘‘any application’’ filed for

tax-exempt status, id. § 6104(a)(1)(B)(ii), ‘‘any papers’’ submitted in support of that application, id. § 6104(a)(1)(B)(iii),

and ‘‘any document’’ issued by the IRS addressing the exemption, id. § 6104(a)(1)(B)(iv). Unlike subsection 6104(a)(1)(A),

which by its terms covers only determinations regarding

‘‘exempt organizations,’’ subsection 6104(a)(1)(B) requires the

IRS to disclose all tax exemption determinations—whether

they grant, deny, or revoke the exemption. We thus see no

way to view Congress’s express focus on tax-exempt organizations in subsection 6104(a)(1)(A) as evidence of congressional

intent to include documents relating to non-exempt organizations as well. Any other conclusion would be anomalous, for

it would mean that Congress wanted the term ‘‘matter’’ to

extend to documents not mentioned in subsection

6104(a)(1)(A) but expressly included in subsection

6104(a)(1)(B), the immediately following provision. See Fed.

Election Comm’n v. Nat’l Rifle Ass’n of Am., 254 F.3d 173,

194 (D.C. Cir. 2001) (‘‘[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.’’ (alteration in original) (quoting Russello

v. United States, 464 U.S. 16, 23 (1983)) (internal quotation

marks omitted)).
8

Given the clarity of the statute’s language and structure,

we have no need to resort to legislative history. See AT&T

Corp. v. FCC, 317 F.3d 227, 235 (D.C. Cir. 2003) (noting that

the court does not ‘‘resort to legislative history to cloud a

statutory text that is clear’’ (quoting Ratzlaf v. United States,

510 U.S. 135, 147–48 (1994))). This is particularly true since

the only legislative history the IRS cites post-dates passage

of the Tax Reform Act. See Consumer Prod. Safety Comm’n

v. GTE Sylvania, Inc., 447 U.S. 102, 118 n.13 (1980) (‘‘[E]ven

when it would otherwise be useful, subsequent legislative

history will rarely override a reasonable interpretation of a

statute that can be gleaned from its language and legislative

history prior to its enactment.’’); N. Broward Hosp. Dist. v.

Shalala, 172 F.3d 90, 98 (D.C. Cir. 1999) (citing cases in which

the Supreme Court has observed that subsequent legislative

history is ‘‘an unreliable guide to legislative intent’’).

As mentioned above, Congress passed the Tax Reform Act

to protect taxpayer privacy while requiring the IRS to disclose written determinations. Our holding advances that

purpose: the IRS must disclose determinations denying or

revoking tax exemptions, but do so in redacted form, thus

protecting the privacy of the organizations involved. The

Treasury regulations, in contrast, keep denials and revocations completely secret, preventing the very monitoring of the

IRS that the Tax Reform Act was designed to facilitate. See

S. REP. NO. 94–938, pt. 1, at 305–06, reprinted in 1976

U.S.C.C.A.N. 2897, 3735 (explaining that the Tax Reform Act

of 1976 would require the IRS to disclose written determinations because ‘‘the secrecy’’ surrounding those documents, in

particular IRS rulings, had ‘‘generated suspicion that the tax

laws [were] not being applied on an even-handed basis’’ and

because disclosure would ‘‘tend to increase the public’s confidence that the tax system operates fairly’’).

For the foregoing reasons, we hold that the portions of

Treasury regulations sections 301.6110–1(a) and 301.6104(a)–

1(i) that include denials and revocations ‘‘within the ambit of

section 6104’’ and prevent their disclosure violate section
9

6110’s plain language. The judgment of the district court is

reversed.

So ordered.