In an action challenging an IRS refund policy regarding certain excise taxes, dismissal of the complaint is affirmed in part where plaintiffs failed to exhaust their remedies with the IRS before filing suit. But the dismissal is reversed in part where IRS Notice 2006-50 operated as a substantive rule rather than a general policy statement, and thus was subject to review under the Administrative Procedure Act.
Argued May 1, 2009
Decided August 7, 2009
Opinion by Judge Brown
Robert J. Cynkar, Foley & Lardner LLP, Milwaukee, WI