The Ninth Circuit Court of Appeals today released an opinion in USA v. WEALTH AND TAX, No. 06-55915, a section 1292b appeal. The panel consisted of Cynthia Holcomb Hall, Thomas G. Nelson, and Barry G. Silverman, Circuit Judges.

PER CURIAM:
We hold today that a 29-page “draft opinion letter” sent by the taxpayers’ accountants to the taxpayers’ tax lawyers, containing extensive legal authority and analysis of a complicated tax transaction, constitutes a “memorandum.” Therefore, even though the letter was characterized as a “draft,” it was nevertheless subject to disclosure pursuant to the taxpayers’ agreement to provide to the IRS “[a]ll opinions and memoranda that provide a legal analysis” of the transaction in question. The United States appeals from the district court’s order denying the government’s petition to enforce a summons issued by the Internal Revenue Service. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse. In December 2001, the Internal Revenue Service released Announcement 2002-2, announcing a “disclosure initiative” that invited taxpayers “to disclose their tax treatment of certain tax shelters.” 2002-1 C.B. 304. For any item voluntarily disclosed under this initiative, the IRS agreed to waive the accuracy-related penalty that would otherwise be triggered by the underpayment of taxes. Id. The Announcement specified that in order to benefit from the initiative, a taxpayer would need to submit, among other things:
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The Ninth Circuit Court of Appeals today released an opinion in TUALATIN VALLEY BUILDERS SUPPLY, INC. v. USA, No. 05-36173, a section 1292b appeal. The panel consisted of Diarmuid F. O’Scannlain, Susan P. Graber, and Consuelo M. Callahan, Circuit Judges.

GRABER, Circuit Judge:
The main question before us is whether the Internal Revenue Service (”IRS”) exceeded its statutory authority when it promulgated Revenue Procedure 2002-40. We hold that the IRS acted within its authority. Because Plaintiff Tualatin Valley Builders Supply, Inc., failed to meet the Revenue Procedure’s deadline for claiming the benefit of a temporary fiveyear net operating loss carryback, we affirm the district court’s grant of summary judgment to the United States. FACTUAL AND PROCEDURAL BACKGROUND The material facts are not in dispute. Plaintiff is a dissolved Oregon corporation that has completed a Chapter 11 bankruptcy proceeding. Plaintiff’s 2001 tax year ended on March 31, 2001. On its 2001 income tax return, timely filed in December 2001, Plaintiff claimed a net operating loss of about $5 million. . . .

O’SCANNLAIN, Circuit Judge, specially concurring:
I join the court in its conclusion that Revenue Procedure 2002-40 is a valid exercise of the Internal Revenue Service’s authority. Yet as the majority notes, there is tension in our case law as to whether the level of deference prescribed in Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984), or Skidmore v. Swift & Co., 323 U.S. 134 (1944), should apply to the agency’s action in this case. Thus, while I agree with the majority that Revenue Procedure 2002-40 withstands scrutiny under either standard, I write separately because I believe this tension, left unresolved, could lead our court down a path that is inconsistent with Supreme Court authority and with common sense. As I explain, I believe that in this case, Chevron deference must apply. I Prior to 2002, the Internal Revenue Code allowed taxpayers to carry back the net operating loss accrued in a particular tax . . .