Concessions--The Trial Attorney's Role

Concessions -- the Trial Attorney's role

If it is believed that the Government's case lacks any merit whatsoever, the case should be conceded. Normally, the Service will recommend concession in such a case in its defense letter; however, in cases where it has not done so, the Trial Attorney may subsequently develop facts or law that justify concession. If the Trial Attorney believes that the Government's position is erroneous, the attorney should consult with a supervisor and possibly direct a letter to the Internal Revenue Service requesting it to reconsider the matter. The same procedure should be followed if the Service recommends concession but the Trial Attorney believes that defense is merited. In this connection, bear in mind that it is very dangerous and unproductive to litigate a legal issue contrary to the views of the Internal Revenue Service; the Service can resolve the matter by issuing a revenue ruling which will effectively require concession of the case. If a Trial Attorney litigates and wins an issue over the opposition of the Internal Revenue Service, there is a very great likelihood that the Government will confess error. Accordingly, if the Trial Attorney disagrees with the Service's recommendation for concession, it is necessary to convince the Service that important facts or legal arguments or other considerations were not previously called to their attention, and that defense is appropriate.