What’s Next as Bessent Hits Acting IRS Chief Limit: Explained

Treasury Secretary Scott Bessent, who has been acting IRS commissioner since August, is setting up the IRS for potential legal risks the longer he stays in the spot temporarily.

Commissioner is one of two IRS positions requiring Senate confirmation, and both roles are being held by acting officials. Treasury Assistant Secretary for Tax Policy Ken Kies has been filling the vacant IRS chief counsel job. No one is nominated for either IRS role.

The 1998 Federal Vacancies Reform Act sets requirements for filling vacant positions that await presidential nomination and Senate confirmation. It generally sets a 210-day limit for serving in an acting capacity.

That raises the question of what happens at that limit. Bessent became acting commissioner Aug. 9, according to the IRS website, meaning he hit 210 days in the position on March 7. Treasury and the White House didn’t immediately respond to requests for comment.

Both Bessent and Kies stepped in amid a slew of oustings at the IRS since the start of the second Trump administration, part of a broader trend of President Donald Trump turning to acting officials for positions requiring Senate confirmation.

Here’s what to know.

What is the Vacancies Act?

The 1998 law laid out a process for filing vacancies in positions awaiting Senate confirmation. It updated an earlier law after officials were circumventing limits amid an uptick in acting officials.

The Government Accountability Office keeps track of the vacancies and notifies the president, agency, and Congress if there is a violation. When GAO suspects an acting leader is serving longer than legally allowed, the office will begin developing a record by contacting the agency for more information.

When someone’s position is in violation, their actions have no force or effect.

How did the IRS get to this point?

Leadership at the top of the IRS was a revolving door in 2025. Seven people held the permanent or acting IRS commissioner job and four people had the permanent or acting chief counsel title.

The Senate confirmed former Rep. Billy Long (R-Mo.) as commissioner, but he lasted just over 50 days before his August departure. Trump had nominated Donald Korb, who had served as chief counsel during former President George W. Bush’s administration, to serve in that role again, but the president withdrew the nomination in November after a right-wing activist’s criticism.

Bessent started in the acting commissioner role after Long was ousted. Kies began in the acting top lawyer job in June, though when Trump nominated Korb and then later withdrew the nomination, the clock restarted in November. The agency could be in violation of the law in mid-June for Kies unless the White House nominates someone new.

Amid the turmoil, the administration created a new IRS CEO role in October, choosing Frank Bisignano, also the commissioner of the Social Security Administration, to oversee day-to-day operations at the tax agency.

What will happen once the time limit is up?

Despite the legal limit there are workarounds, such as relabeling Bessent and Kies to senior officials performing the functions and duties of their positions. Such moves could make it harder to bring a successful suit.

Historically, both Republicans and Democrats have sought workarounds. In his first term in 2019, Trump said in comments to reporters, “I sort of like acting. It gives me more flexibility.”

Administrations have changed titles to senior officials performing the functions and duties of their positions instead of acting leaders. Critics of this maneuver say it sidesteps the confirmation process and illegally lengthens the tenure of an acting official.

Treasury has already shown it’s comfortable with delegating, with Bessent announcing in October that Derek Theurer would perform the duties of deputy secretary. There’s an open constitutional question as to whether a non-confirmed official can serve in a confirmed role.

A new person could step into the acting roles too, but the options are limited. Duties of the commissioner or chief counsel that are exclusive to that position cannot be delegated to a person below in the hierarchy, only up.

What are chances of a successful legal suit?

The only way for there to be a consequence for not following law is for someone to sue.

It’s tricky to sue under the vacancies law because some agencies will have another employee co-sign any actions by the acting official. Stakeholders that care about some of the IRS’s most controversial regulations will likely be watching for any missteps that would strengthen a lawsuit.

During the Trump administration’s second term, some have had success in suing agencies for violating the vacancies law. For example, in December 2025, a federal appeals court ruled that Alina Habba, former personal attorney to President Donald Trump, couldn’t serve as the US Attorney for the District of New Jersey, though there were different circumstances at play there than there are at the IRS.

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