Several Misunderstandings Involving Repeal Provisions

The IRC of 1939 repealed all existing revenue law: Not so.  The ‘repeal’ language in section 4 of the Internal Revenue Code of 1939 is carefully qualified.  That is to say, it declares that only when a corresponding code section is enacted does the same statute stand as repealed (and until then, the original statute continues in force-- see section 5).  The appendix of the code contains a short, specific list of older statutes thus repealed.  Furthermore, section 6 declares that apparent changes to the statutes as presented in the new 'Title' are to be disregarded, meaning that whatever the "enacted" status of the code, the original statutes remain the only proper evidence of the true character and scope of such provisions.  This is more explicitly observed in the preface to the instrument:

"The internal revenue title, which comprises all of the Code except the preliminary sections relating to its enactment, is intended to contain all the United States statutes of a general and permanent nature relating exclusively to internal revenue, in force on January 2, 1939; also such of the temporary statutes of that description as relate to taxes the occasion of which may arise after the enactment of the Code. These statutes are codified without substantive change and with only such change of form as is required by arrangement and consolidation. The title contains no provision, except for effective date, not derived from a law approved prior to January 3, 1939.

The derivation of the title, in its textual sequence, is shown in the appendix, part I, table A. Conversely, the placement of the statutes in the title, cited in their chronological order, is shown in table B. The Revised Statutes of the United States and the Statutes at Large of the United States are the sources of the law codified. The Revised Statutes cover the period ended December 1, 1873. The Statutes at Large codified cover the period following December 1, 1873, and are published in the 35 volumes numbered 18 to 52, inclusive. The separate enactments carried into the internal revenue title, wholly or in part, from the Statutes at Large are 143 in number, exclusive of 93 statutes involving express amendment, reenactment, or repeal. The 277 Revised Statutes sections codified were derived from 21 basic statutes. The whole body of internal revenue law in effect on January 2, 1939, therefore, has its ultimate origin in 164 separate enactments of Congress. The earliest of these was approved July 1, 1862; the latest, June 16, 1938."  (Emphasis added)

  The reality is simple and unambiguous: The original statutes remain the definitive language and authority of the current law.  This reality even transcends the issue of "positive law" versus "non-positive law".  As the Fourth Circuit Court of Appeals recently observed:

“[I]f there is a conflict between the original Congressional enactment contained in the Statutes at Large and a codification that has been enacted into positive law, the Statutes at Large control when (1) the meaning of the original enactment was “clear and quite different from the meaning . . . ascribe[d] to the codified law,” and (2) “the revisers expressly stated that changes in language resulting from the codification were to have no substantive effect.” Cass v. United States, 417 U.S. 72, 82 (1974); see Welden, 377 U.S. at 98 n.4; see also Finley v. United States, 490 U.S. 545, 554 (1989)”  Washington-Dulles Transp., Ltd. v. Metropolitan Washington Airports Authority, 263 F.3d 371  4th Cir. (2001)

  Here is the relevant language of the 1939 code: 

AN ACT

To consolidate and codify the internal revenue laws of the United States.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the laws of the United States hereinafter codified and set forth as a part of this act under the heading "Internal Revenue Title" are hereby enacted into law.

SEC. 2. CITATION.—This act and the internal revenue title incorporated herein shall be known as the Internal Revenue Code and may be cited as "I. R. C.".

SEC. 3. EFFECTIVE DATE.—Except as otherwise provided herein, this act shall take effect on the day following the date of its enactment.

SEC. 4. REPEAL AND SAVINGS PROVISIONS.—(a) The Internal Revenue Title, as hereinafter set forth, is intended to include all general laws of the United States and parts of such laws, relating exclusively to internal revenue, in force on the 2d day of January 1939 (1) of a permanent nature and (2) of a temporary nature if embraced in said Internal Revenue Title. In furtherance of that purpose, all such laws and parts of laws codified herein, to the extent they relate exclusively to internal revenue, are repealed, effective, except as provided in section 5, on the day following the date of the enactment of this act.

(b) Such repeal shall not affect any act done or any right accruing or accrued, or any suit or proceeding had or commenced in any civil cause before the said repeal, but all rights and liabilities under said acts shall continue, and may be enforced in the same manner, as if said repeal had not been made; nor shall any office, position, employment, board, or committee, be abolished by such repeal, but the same shall continue under the pertinent provisions of the Internal Revenue Title.

(c) All offenses committed, and all penalties or forfeitures incurred under any statute hereby repealed, may be prosecuted and punished in the same manner and with the same effect as if this act had not been passed.

(d) All acts of limitation, whether applicable to civil causes and proceedings, or to the prosecution of offenses, or for the recovery of penalties or forfeitures, hereby repealed shall not be affected thereby, but all suits, proceedings, or prosecutions, whether civil or criminal, for causes arising, or acts done or committed, prior to said repeal, may be commenced and prosecuted within the same time as if this act had not been passed.

(e) The authority vested in the President of the United States, or in any officer or officers of the Treasury Department, by the law as it existed immediately prior to the enactment of this act, hereafter to give publicity to tax returns required under any internal revenue law in force immediately prior to the enactment of this act or any information therein contained, and to furnish copies thereof and to prescribe the terms and conditions upon which such publicity may be given or such copies furnished, and to make rules and regulations with respect to such publicity, is hereby preserved. And the provisions of law authorizing such publicity and prescribing the terms, conditions, limitations, and restrictions upon such publicity and upon the use of the information gained through such publicity and the provisions of law prescribing penalties for unlawful publicity of such returns and for unlawful use of such information are hereby preserved and continued in full force and effect.

SEC. 5. CONTINUANCE OF EXISTING LAW.—Any provision of law in force on the 2d day of January 1939 corresponding to a provision contained in the Internal Revenue Title shall remain in force until the corresponding provision under such Title takes effect.

SEC. 6. ARRANGEMENT, CLASSIFICATION, AND CROSS REFERENCES.— The arrangement and classification of the several provisions of the Internal Revenue Title have been made for the purpose of a more convenient and orderly arrangement of the same, and, therefore, no inference, implication or presumption of legislative construction shall be drawn or made by reason of the location or grouping of any particular section or provision or portion thereof, nor shall any out- line, analysis, cross reference, or descriptive matter relating to the contents of said Title be given any legal effect.

SEC. 7. EFFECT UPON SUBSEQUENT LEGISLATION.—The enactment of this act shall not repeal nor affect any act of Congress passed since the 2d day of January 1939, and all acts passed since that date shall have full effect as if passed after the enactment of this act; but, so far as such acts vary from, or conflict with, any provision contained in this act, they are to have effect as subsequent statutes, and as repealing any portion of this act inconsistent therewith.

SEC. 8. COPIES AS EVIDENCE OF ORIGINAL.—Copies of this act printed at the Government Printing Office and bearing its imprint shall be conclusive evidence of the original Internal Revenue Code in the custody of the Secretary of State.

SEC. 9. PUBLICATION.—The said Internal Revenue Code shall be published as a separate part of a volume of the United States Statutes at Large, with an appendix and index, but without marginal references; the date of enactment, bill number, public and chapter number shall be printed as a headnote. 

SEC. 10. INTERNAL REVENUE TITLE.—The Internal Revenue Title, heretofore referred to, and hereby and herein enacted into law, is as follows:...

The IRC of 1954 was 'enacted': Not really.  The 'enactment' of the IRC of 1954 was not the enactment into law of everything contained in that title, it was only the designation of the 1954 code as the new official "prima facie evidence" of the actual laws being represented by "code" (some of the more significant of which-- such as what is reflected in chapter 24 of the current code-- had been enacted after 1939).  That is, prior to the 1954 code, the 1939 code was the official prima facie (conveniently indicative, but not legally definitive) evidence of the actual law-in-force.  With the adoption of the 1954 code, the new version became that official prima facie evidence.

Even the limited significance of this "enactment" is not as significant as it appears at first glance, because even the replacement of the 1939 code as prima facie evidence of the statutes is only partial.  Section 7851 of the 1954 code contains extensive specifications as to which parts of the 1939 code are replaced by 1954 provisions, and to which specific things those limited replacements apply, making clear that much of the 1939 code remains the official codified representation of the actual statutes.  For instance, Section 7851(a)(1)(A) reads as follows:

(1) SUBTITLE A.—

(A) Chapters 1, 2, 4, and 6 of this title shall apply only with respect to taxable years beginning after December 31, 1953, and ending after the date of enactment of this title, and with respect to such taxable years, chapters 1 (except sections 143 and 144) and 2, and section 3801, of the Internal Revenue Code of 1939 are hereby repealed.

The new code is a far less useful version, as it turns out.  This is because those portions of the 1954 code purporting to represent laws-in-force prior to 1939 (which includes the vast majority of the internal revenue laws currently in effect) are actually just representations of the 1939 code representations of those laws, and with a great deal of consolidation and re-arrangement (ostensibly for the purpose of brevity or better organization).  Only those statutes passed since the last 1939 code had been published are freshly represented in the 1954 code, a fact expressed in its "Derivation Tables".  The same is true of the "1986 code" (which is, in fact, nothing but the 1954 code with a new name, per Pub. L. 99-514, Sec. 2, Oct. 22, 1986, 100 Stat. 2095), which is why the derivation tables for that version (found in the "Preliminary Materials" chapter) contain no references to the 1954 code at all, but refer directly back to the 1939 code as the source from which all older statutory representations are derived.

“Of the 50 titles, only 23 have been enacted into positive (statutory) law. These titles are 1, 3, 4, 5, 9, 10, 11, 13, 14, 17, 18, 23, 28, 31, 32, 35, 36, 37, 38, 39, 44, 46, and 49. When a title of the Code was enacted into positive law, the text of the title became legal evidence of the law. Titles that have not been enacted into positive law are only prima facie evidence of the law. In that case, the Statutes at Large still govern.”

United States Government Printing Office

 

“Certain titles of the Code have been enacted into positive law, and pursuant to section 204 of title 1 of the Code, the text of those titles is legal evidence of the law contained in those titles. The other titles of the Code are prima facie evidence of the laws contained in those titles. The following titles of the Code have been enacted into positive law: 1, 3, 4, 5, 9, 10, 11, 13, 14, 17, 18, 23, 28, 31, 32, 35, 36, 37, 38, 39, 40, 44, 46, and 49.”

United States House of Representatives Office of the Law Revision Counsel

It will be observed that title 26 is not an enacted title.

The IRC of 1954 was repealed on the day it was 'enacted': Not so.  The language regarding, "beginning after Dec. 31, 1953 and ending after Aug. 16, 1954" within the first part of the 1954 IRC relates to the beginning and end dates of "taxable years" to which it will apply, not to the duration or active dates of the new code-- as in, a "taxable year" which starts on Jan. 1, 2004 and ends Dec. 31, 2004 is one which "begins after Dec.31, 1953 and ends after Aug. 16, 1954".  Those who argue the incomprehensible alternate understanding will please note that there is no comma after "taxable years" in the language of their interest, which there would be if what they would have were true.  (The curious can view 26 CFR 1.0-1, to which this and the previous observation relate, here.)

Further, as noted above, the 1954 code, which is (or was, until the 1986 version took its place) title 26 of the United States Code, is not enacted.  The only sense in which it ever was, or ever was meant to be, was in replacing the 1939 version as the official prima facie evidence of the underlying statutes that these codes represent.