IRS
Internal Revenue Manual (“IRM”)
4.10.7.2.9.8 (01-01-2006)
Importance of Court Decisions
1.
Decisions made at various levels of the
court system are considered to be interpretations of tax laws and may be used
by either examiners or taxpayers to support a position.
2.
Certain court cases lend more weight
to a position than others. A case
decided by the U.S. Supreme Court becomes the law of the land and takes
precedence over decisions of lower courts. The Internal Revenue Service must
follow Supreme Court decisions. For examiners, Supreme Court decisions have the
same weight as the Code.
3.
Decisions made by lower courts, such
as Tax Court, District Courts, or Claims Court, are
binding on the Service only for the particular taxpayer and the years
litigated. Adverse decisions of lower courts do not require the Service to
alter its position for other taxpayers.
U.S.
Supreme Court
Miranda v.
Arizona, 384 U.S. 436 (1966)
Where
rights secured by the Constitution
are involved,
there can be no rulemaking or legislation which would abrogate
them.
Oath of Office
Clause, Article VI, Clause 3
Constitution for
the United States of America
The Senators and Representatives before mentioned, and the
Members of the several State Legislatures, and all executive and
judicial Officers, both of the United States and of the several
States, shall be
bound by Oath or Affirmation, to support
this
Constitution;
but no religious Test shall ever be required as a
Qualification to any Office or public
Trust under the United States.
IRS
Restructuring and Reform Act of 1998
Termination of
Employment for Misconduct
“(b) Acts or Omissions. — The acts or omissions referred to
under subsection (a) are —
…
the violation of —
“(A)
any right under the Constitution of the
United States; or
…
“(6)
violations of the Internal Revenue Code of 1986,
Department of Treasury regulations, or policies of the Internal Revenue Service
(including the Internal Revenue Manual)
….
Internal Revenue
Manual
1.
OPM’s GPPA,
Chapter 3, Subchapter 4, and the Job Aid specifies the
required appointment documents. Human Capital Office (HCO), Employment, Talent
and Security (ETS), Employment Offices (EOs) and Executive Services Division
have responsibility for prescribing any other forms used for various
appointment actions.
2.
Standard Form 61, Appointment Affidavits, will be
executed according to instructions in OPM’s GPPA, Subchapter 4 and the Job Aid.
U.S.
Office of Personnel Management
THE GUIDE TO PROCESSING
PERSONNEL ACTIONS
Subchapter
4. The Entry
on Duty Process for New Employees
4-3. Entrance on Duty
(EOD)
c. Oath of Office
As part of the
entry-on-duty process, the
employee takes the oath
of office. The
Standard Form 61, Appointment Affidavit,
contains the oath of
office (part A) required
by 5 U.S.C. 3331, the
affidavit on striking
against the Federal
Government (part B)
required by 5 U.S.C. 7311, and
the affidavit
on purchase and
sale of office (part C) that
5 U.S.C. 3332
requires officers to complete.
(1) The form is completed and filed on the
right side of the
Official Personnel Folder
when the employee is
first appointed in the
Federal Government
and for each
subsequent new appointment
in any agency
(including appointment by transfer,
reinstatement, and
restoration). A Standard
Form 61 is not
required when there is a
change in an
employee’s status (such as a
conversion to a new appointment)
as long as
service is continuous
in the same agency. A
new Standard Form
61 is not required when
the employing
office or agency changes as a
result of a transfer
of function, either.
However, an
agency may request that the
form be completed even if it is not
required.
(2) The oath and affidavits are executed
when the appointee
enters on duty and are
given by a notary or
by a Federal official or
employee of your agency
who has, or has
been delegated,
responsibility to administer
oaths (see 5 U.S.C. 2903). United States
citizens must swear to
or affirm the oath of
office and the
affidavit in part B; aliens must
swear to or affirm
the affidavit in part B.
Persons
appointed as “officers” must swear
to or affirm the
oath of office and the
affidavits in parts B and
C. (“Officers” are
justices and judges of the United
States and
individuals who are required by
law to be appointed
by the President, a court
of the United
States, the head of an
Executive
agency, or the Secretary of a
military department; persons appointed as
“officers” are invested by law with authority
delegated from the heads
of departments or
independent
establishments.)
(3) If the appointee objects to the form of
the oath on
religious grounds, certain
modifications may be
permitted pursuant to
the Religious
Freedom Restoration Act.
Please contact
your agency’s legal counsel
for advice. The jurat at the
bottom of the
form must be signed
by each appointee and
completed by the person
who administers
the oath or affidavits.
(4) The Civil Service oath of office in part
A contains the
phrase “defend the
constitution.” In the case of Girouard vs.
United
States, 328 U.S. 61 (1946), the
U.S.
Supreme Court
held that the oath of
allegiance to the United
States of American [sic]
(taken by all candidates for citizenship)
“does not in terms require that they promise
to bear
arms.” Explain to any appointee
who questions the
meaning of, or objects to,
that part of the
oath that the “defend the
Constitution”
phrase in the Civil Service
oath of office does
not imply that the
appointee would be
expected to bear arms.
(5) Obtain an original and a copy of the
Standard Form 61
when the oath and
affidavits are executed by
cabinet officers
and heads of
independent establishments,
agencies, and
offices. After the oath has
been taken and the
form executed, send the
copy to the Department of State.