Commissioners of the Wage and Investment Division, the Small Business/Self-Employed Division, the Tax-Exempt and Government Entities Division, and the Large and Mid-Size Business Division, who are delegated the authority to supervise and manage those divisions, see IRM pt. 1.1.13.1 (Sept. 1, 2005), 1.1.16.1 (Mar. 1, 2007), 1.1.23.2 (Feb. 1, 2007), 1.1.24.1 (Nov. 1, 2006); (iv) the Deputy Chief Counsel (Technical), who serves as the principal deputy to the Chief Counsel, acts as Chief Counsel when that office is vacant, maintains jurisdiction over legal issues arising in published guidance, letter rulings, technical advice, and other processes, and participates in the interpretation and development of internal revenue laws, see IRM pt. 1.1.6.2 (Dec. 16, 2009), (v) the Deputy Chief Counsel (Operations), who maintains jurisdiction over issues arising in litigation nationwide and participates in the formulation of tax litigation policy, see IRM pt. 1.1.6.3 (Dec. 16, 2009), and (vi) the Chief of the Office of Appeals, who is delegated the authority to plan, manage, direct, and execute the nationwide activities of that office, see IRM pt. 1.1.7.1 (Feb. 5, 2008). 66

Lower in the IRS hierarchy, these hired positions include revenue officers (at or above the rank of GS-967), who are delegated the authority (i) to issue, serve, and enforce summonses, to set the time and place for appearance, to take testimony under oath of the person summoned, and to receive and examine data produced in compliance with the summons, see IRS Deleg. Order 25-1 (formerly IRS Deleg. Order 4 (Rev. 23), 55 Fed. Reg. 7626); (ii) to issue notices of levy, see IRS Deleg. Order 5-3 (Rev. 1), IRM pt. 1.2.44.3 (Nov. 8, 2007); and (iii) to issue notices of Federal tax lien, see Delegation Order 5-4 (Rev. 1), IRM pt. 1.2.44.4 (Sept. 23, 2005). That is, revenue officers have the power-unless the CDP process intervenes-to effect the actual collection of tax.

66 Justice Breyer would evidently characterize many of these personnel as "officers". See Free Enter. Fund v. PCAOB, 561 U.S. at 130 S. Ct. at 3180 (Breyer, J., dissenting) ("by virtually any definition, essentially all SES [Senior Executive Service] officials qualify as 'inferior officers,' for their duties, as defined by statute, require them to 'direc[t] the work of an organizational unit,' carry out high-level managerial functions, or otherwise exercis[e] important policy-making, policy-determining, or other executive functions.' §3132(a)(2) (emphasis added)").

67 The General Schedule, abbreviated "GS", is the basic pay schedule for employees of the Federal Government. See 5 U.S.C. sec. 5332 (2006).

5. The administrative law context of the CDP "officer or employee"

Today the Federal Government employs a corps of about 5,000 hearing officers who adjudicate cases for dozens of its agencies. Raymond Limon, Office of Admin. Law Judges, Office of Pers. Mgmt., "The Federal Administrative Judiciary, Then and Now, A Decade of Change 1992-2002", at 3 (Dec. 23, 2002). Fewer than a third of those positions are classified as administrative law judges (ALJS) under the Administrative Procedure Act (APA), and the remainder of those positions are commonly referred to as non-ALJ hearing officers. 68 Over 80 percent of ALJS are currently employed by the Social Security Administration (SSA). OPM Report (showing the SSA employed 1,128 of 1,388 ALJS in June 2008). None of the SSA'S ALJS are appointed by the Commissioner of the SSA, who serves as the department head. See Soc. Sec. Admin., ODAR Redelegations of Personnel and Equal Employment Opportunity Authorities (September 2006). Instead, the authority to appoint ALJS for the SSA is delegated to the Deputy Commissioner for the Office of Disability Adjudication and Review of the SSA. Id. Therefore, the great majority of ALJS are not appointed pursuant to the Appointments Clause.

ALJS are hired pursuant to 5 U.S.C. sec. 3105 (2006). An agency may appoint an individual as an ALJ only after the Office of Personnel Management certifies that individual as eligible for the position. 5 C.F.R. sec. 930.204 (2008). The APA generally requires that an ALJ preside over "every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing". 5 U.S.C. sec. 554 (2006). If the adjudication is a so-called on the record hearing, then the hearing is a "formal adjudication" that must adhere to the formal hearing procedures of the APA, which provide, inter alia, that each party is entitled to present oral or documentary evidence, submit rebuttal evidence, and conduct cross-examination. 5 U.S.C. secs. 554557. When presiding over an "on the record" hearing, ALJS

68 Id. at 1-4 (showing that the Federal Government employed 1,351 ALJs and 3,370 non-ALJ hearing officers in 2002); see also Office of Pers. Mgmt., Federal Administrative Law Judges, By Agency and Level, CDPF Status Report as of June 2008 (OPM Report) (showing the Federal Government employed 1,388 ALJs in June 2008). Justice Breyer determined that there are currently 1,584 ALJs. See Free Enter. Fund v. PCAOB, 561 U.S. at 130 S. Ct. at 3180-3181 (Breyer, J., dissenting).

have the authority to require attendance at the hearing, to administer oaths and affirmations, to issue subpoenas, to rule on offers of proof and receive evidence, and to order depositions. Id.

However, if the relevant statute does not require an “on the record" hearing, then the formal hearing procedures of the APA do not apply and a non-ALJ hearing officer may preside over the adjudication. See id. Sections 6320 and 6330 do not require an "on the record" CDP hearing, see Davis v. Commissioner, 115 T.C. at 41-42 (citing 26 C.F.R. sec. 601.106(c), Statement of Procedural Rules); and thus even apart from section 6330(b)(3) (allowing a CDP hearing before "an officer or employee"), APA procedures would not require the IRS to use ALJS to conduct CDP hearings. Therefore, the appeals officer who conducts and adjudicates a CDP hearing is more comparable to a non-ALJ hearing officer than to an

ALJ.

The CDP hearing officer, hired and not constitutionally "appointed", is by no means unique in the context of administrative adjudication.

III. The status of the CDP "officer or employee” and “appeals officer" under the Appointments Clause

In order to determine whether the "officer or employee" (or the "appeals officer") of section 6330 is an "inferior Officer" who must be appointed in compliance with the Appointments Clause, we consider the two issues prompted by the text of the clause.

A. Whether the position is “established by Law”

"[T]he threshold trigger for the Appointments Clause" is that an office be "established by Law'". Landry v. FDIC, 204 F.3d at 1133. We hold that there is no CDP hearing officer position "established by Law" under sections 6320 and 6330 whose incumbent could be an officer subject to the Appointments Clause.

1. Creation by statute

Where "the 'duties, salary, and means of appointment' for the office were specified by statute", that is considered "a factor that has proved relevant in the [Supreme] Court's

Appointments Clause jurisprudence." Id. (quoting Freytag v. Commissioner, 501 U.S. at 881). If there were a statutory provision to the effect that "There shall be, within the Internal Revenue Service Office of Appeals, officers designated as Appeals Officers, who shall conduct CDP hearings", etc., then that would be some indication that the Appeals Officer position was "established by Law". There is no such statute, and this lack is some indication that the position in question is not an office "established by Law".

The IRS Office of Appeals was not, in its current form, initially created by the Internal Revenue Code, 69 nor were its "Appeals Officers". Congress did explicitly "establish" in the Internal Revenue Code certain officers who are to be appointed by the President, with the advice and consent of the Senate-i.e., the Commissioner, sec. 7803(a)(1), the Chief Counsel, sec. 7803(b)(1), and members of the Internal Revenue Service Oversight Board, sec. 7802(b)(1)—and the National Taxpayer Advocate (sec. 7803(c)(1)), who is appointed by the Secretary of the Treasury. 70 Otherwise, the employment of "Other Personnel" is authorized in Section 7804(a), which, as we noted above, simply provides that "the Commissioner of Internal Revenue is authorized to employ such number of persons as the Commissioner deems proper". Congress thus left to the Executive Branch almost the entire personnel structure of the IRS and refrained from establishing other particular offices within it.

As is shown above in part II.B, it was the Executive Branch that created the IRS Office of Appeals and its personnel structure, pursuant to that authority in section 7804(a). When Congress enacted in 1998 the CDP provisions in sections 6320 and 6330, it employed that pre-existing Office of Appeals and committed the new CDP function to that office. Secs. 6320(b)(1), 6330(b)(1), (d)(2). Mr. Tucker contends that the RRA established the pre-existing Appeals Officer position as the CDP hearing officer. The statute does

69 Although the Office of Appeals was originally a creature of regulation, the multiple references to it that were added to the Code in 1998, see part II.B above, make it at least arguable that the Office of Appeals is now required by statute. However, there is no constitutional issue as to whether the Office of Appeals itself was “establish[ed] by Law"; rather, the issue is whether there are, within the Office of Appeals, personnel who are "officers" whose positions are "established by Law".

70 The National Taxpayer Advocate's predecessor, the Taxpayer Advocate, was appointed by the Commissioner of Internal Revenue, pursuant to former section 7802(d)(1).

refer to an "appeals officer" as the person who "obtain[s] verification *** that the requirements of any applicable law or administrative procedure have been met", sec. 6330(c)(1), and who makes the "determination" whether to proceed with collection, sec. 6330(c)(3). However, for the following reasons we conclude that section 6330 uses the term "appeals officer" interchangeably with the term "officer or employee":

First, the provisions in the lien statute, section 6320(b)(3), and in the levy statute, section 6330(b)(3), that actually state who shall conduct the hearing state that "the hearing *** shall be conducted by an officer or employee who has had no prior involvement with respect to the unpaid tax”. (Emphasis added.) This is the first and only mention of an individual in the lien statute and the first mention of an individual in the levy statute. The caption of each paragraph is "Impartial officer", thereby explicitly indicating that it might be an "officer or employee" who serves as the "Impartial officer". (Emphasis added.) This shows that Congress did not use the term "officer" in any specialized sense. The phrase "or employee" is so contrary to Mr. Tucker's position that he is forced to declare the phrase "mere surplusage". However, we decline to read words out of the statute; rather, we attempt to give meaning to every word that Congress enacted, and here that is best accomplished by taking at face value the phrase "officer or employee" in sections 6320(b)(3) and 6330(b)(3) (emphasis added), and by understanding the phrase "appeals officer" in section 6330(c)(1) and (3) as shorthand for an officer or employee in the Office of Appeals. If Congress had intended to assign CDP duty to a particular rank of "Appeals Officer", it would not have added the phrase "or employee"; and it could have used language like that which it used simultaneously in RRA section 3105 where it provided that a bond issuer could appeal an adverse ruling "to a senior officer of the Internal Revenue Service Office of Appeals". (Emphasis added.)

Second, the conference report describing the provision does on one occasion use the designation "appeals officer" but almost immediately thereafter uses the designation “appel