13.1.20  TAS Taxpayer Assistance Order (TAO) Process

13.1.20.1  (12-15-2007)
Taxpayer Assistance Order (TAO) Process

  1. The Internal Revenue Code under IRC 7811 authorizes the National Taxpayer Advocate (NTA) to issue a Taxpayer Assistance Order (TAO) when a taxpayer is suffering or is about to suffer a significant hardship as a result of the manner in which the internal revenue laws are being administered. The decision to issue a TAO is unrelated to the case criteria code assigned to the case. The IRC § 7811 determination must be made prior to a TAO consideration.

13.1.20.2  (02-01-2011)
Determining When to Issue a Taxpayer Assistance Order

  1. Pursuant to Delegation Order 13-1 (formerly DO-232) and IRM 1.11.4.2(2), Types of Delegation of Authority, the authority to issue a TAO is delegated to Area Directors (ADs), Local Taxpayer Advocates (LTAs), the Executive Director, Case Advocacy (EDCA), and the Deputy National Taxpayer Advocate (DNTA). These officials have the delegated authority to issue, modify, or rescind a TAO.

  2. A TAO will be considered when all of the following factors are present:

    1. the taxpayer is suffering or about to suffer a "significant hardship" if relief is not granted; and

    2. the significant hardship results from the manner in which the IRS is administering the law, and

    3. TAS does not have the authority to take the actions needed to grant relief to the taxpayer or to resolve a case issue, and

    4. the Operating Division or Function (OD/Function) does not agree with TAS on the proper resolution of specific case issues, or the IRS fails to perform the actions recommended by TAS.

  3. A significant hardship includes:

    1. an immediate threat of adverse action;

    2. a delay of more than 30 days in resolving taxpayer account problems;

    3. the incurring by the taxpayer of significant costs (including fees for professional representation) if relief is not granted;

    4. irreparable injury to, or a long-term adverse impact on, the taxpayer if relief is not granted.;

    5. a serious privation caused or about to be caused to the taxpayer as a result of the particular manner in which the revenue laws are being administered by the IRS per Treas. Reg. § 301.7811-1(a)(4)(ii).

      Note:

      The regulation states that serious privation is more than mere economic or personal inconvenience.

    In cases where any IRS employee is not following applicable published administrative guidance (including the IRM), TAS must analyze the factors taken into account in determining whether to issue a TAO in the manner most favorable to the taxpayer. See IRC 7811(a)(3).

  4. When the Case Advocate (CA) encounters a situation where an agreement with the OD/Function cannot be reached on the action needed to resolve a case, the CA must immediately elevate the case to the manager. The CA must ensure the TAMIS history and the related case file are well documented for review. The CA will prepare a briefing document that includes the following:

    1. The subject of the dispute;

    2. A chronological time line of actions taken by the IRS and TAS;

    3. The name, position and the phone number of the OD/Function employee who disagrees or refuses to take the requested action;

    4. The OD/Function basis for denying the requested action (e.g., under what provision of the IRC, IRM, procedural memoranda, etc.);

    5. A specific explanation of the action TAS is requesting and the rationale behind the request.

  5. Consider issuing a TAO on a case that cannot be resolved after a reasonable process of consultation with the OD/Function. Congress granted the NTA the authority to issue a TAO to ensure that TAS can effectively resolve problems and protect taxpayer rights when the taxpayer has a significant hardship, even when the IRS disagrees or has other internal priorities. Thus, the TAO is a statutory tool that should be used at the right time in a well-developed case.

    Note:

    Although it is not necessary to issue a Form 12412, Operation Assistance Request (OAR), before issuing a Form 9102, Taxpayer Assistance Order (TAO), in most cases the CA will issue an OAR prior to a TAO, if time permits. The only requirement before issuing a TAO is that a conversation takes place between TAS and the Responsible Official in the OD/Function with respect to the requested action. If no agreement can be reached, consider the issuance of a TAO. See IRM 13.1.19.6, OARS - Operating Division or Functional Unit Disagrees - Action Not Taken, for additional information.

13.1.20.3  (12-15-2007)
Purpose of Taxpayer Assistance Orders

  1. A TAO may be issued for either of two purposes:

    1. To direct the OD/Function take a specific action, cease a specific action, or refrain from taking a specific action; or

    2. To direct the IRS to review at a higher level, expedite consideration of, or reconsider a taxpayer's case.

  2. A TAO may be issued to any IRS OD/Function. While a TAO may be issued to Criminal Investigation (CI), a TAO may generally not be issued with respect to the investigation of any criminal tax violation. Thus, TAS will issue a TAO with respect to the investigation of any criminal tax violation only in rare instances. If the CA believes TAS should issue such a TAO, he or she should discuss the case with his or her LTA. If the LTA determines a TAO to CI is in order, the TAO will be elevated through the AD, to the attention of the NTA.

  3. TAS no longer uses the terms "direct" TAO and "review" TAO. These terms should not be used on Form 9102.

13.1.20.3.1  (12-15-2007)
Terms of a TAO

  1. A TAO is issued to direct the IRS to take an action within a specified period of time. For example:

    1. To release a levy; or

    2. To cease any action, take any action as permitted by law, or refrain from taking any action, with respect to the taxpayer under the following IRC chapters:

    • chapter 64 (relating to collection),

    • sub-chapter B of chapter 70 (relating to bankruptcy and receiverships), or

    • chapter 78 (relating to discovery of liability and enforcement of title), or

    Example:

    If documentation is secured to support a claim of economic hardship (within the meaning of IRC 6343), a TAO may be issued to order the release of a levy.

  2. A TAO only requires actions that are otherwise permitted by law, regulations, or other guidance. They may not be issued to determine the merits of a taxpayer's liability or to overturn or circumvent an established process for administrative or judicial review of a taxpayer's case.

  3. A TAO may be issued to require the IRS to:

    1. Expedite consideration of the case;

    2. Reconsider its determination in the case; or

    3. Review the case at a higher level in the organization.

    Example:

    A TAO cannot be issued to order a different result where a decision has been made with respect to innocent spouse relief. However, a TAO may be issued to have the denial of Innocent Spouse Relief reviewed at a higher level and may be accompanied by the CA's analysis of and recommendation for resolving the case.

  4. A TAO may be issued to elevate a case to a higher level when the LTA believes the case has merit and should be resolved by the existing levels of management review within the operating division or function. A TAO should not be used in place of established administrative review such as audit reconsideration.

    Example:

    If a taxpayer disagrees with an assessment made by Examination, TAS may assist the taxpayer with obtaining a review of the assessment through the audit reconsideration process. It is not generally appropriate for TAS to immediately issue a TAO to request the case be considered at the next higher level within the organization without first requesting audit reconsideration. TAS can request an expedited review. If the IRS refuses to provide an expedited review in a case when time is of the essence, the LTA should consider issuing a TAO.

  5. In addition to asking for reconsideration of an issue, a TAO may also direct that enforcement activity such as levy or seizure be postponed until the review is completed. The responsible OD/Function is required to follow this direction or appeal the TAO. However, TAS will consider modifying the TAO if there are compelling circumstances that require immediate action by the IRS (e.g., situations where collection is in jeopardy may require the immediate issuance of a Notice of Levy).

13.1.20.4  (02-01-2011)
Steps to Take in Issuing a Taxpayer Assistance Order

  1. Use the Taxpayer Assistance Order Check List to ensure the necessary steps have been taken prior to issuing a TAO. See Exhibit 13.1.20-1.

  2. Document the significant hardship determination. See IRM 13.1.18.7, Making a IRC § 7811 Significant Hardship Determination, for more information.

  3. When the issuance of a TAO is warranted, the LTA or delegated official per Delegation Order 13-1 (formerly DO-232) will complete Form 9102, Taxpayer Assistance Order. The Form 9102 should clearly state the action to be completed and a date by which the action is to be taken.

    Note:

    In deciding to issue a TAO, the LTA should consult with the appropriate personnel. Such personnel include the AD, NTA Attorney Advisors, NTA Counsel, Technical Advisors and the Technical Analysis and Guidance (TAG) Director.

  4. The CA prepares, and incorporates into the TAO as an attachment, a summary of the action requested, synthesizing the facts and the law in one document (the Summary Attachment).

  5. The Form 9102, the Summary Attachment, and instructions are sent directly to the OD/Function person responsible for making a decision regarding the requested action, e.g., Department Manager or Territory Manager.

  6. After issuance of the TAO to the OD/Function, the LTA or delegated official will contact the Director, TAG, by telephone to advise that a TAO was issued. The LTA or delegated official will then scan and send, by Secure E-mail, the Form 9102 and Summary Attachment to the Director, TAG. If a fax is necessary, fax the documents to the TAG office at (414) 231–2373, attention TAG Director.

    Reminder:

    Update the TAO/Relief Code and TAO Relief Date as appropriate throughout the TAO process. IRM 13.4.5.4.2.3, "Complete the Following " Section contains information about the TAO/Relief Codes and their definitions.

    Reminder:

    Only TAMIS users with permission levels 4 and 5 may enter TAO Codes 07, 08, 09, and 10, in the TAO/Relief Code Field.

13.1.20.4.1  (02-01-2011)
Taxpayer Assistance Order, Form 9102, Writing Tips

  1. Complete the Form 9102, Taxpayer Assistance Order. Remember to specify the date the action is to be completed and the date the form is signed.

  2. Attach to the Form 9102 a Summary Attachment (a summary of key facts and legal or administrative authority that support the conclusion that the IRS should take the proposed actions).

  3. When typing, use mixed case, rather than ALL CAPITAL LETTERS.

  4. Do not label the summary or Form 9102 as either a "direct TAO" or a "review TAO."

  5. Write in complete sentences and be specific as to what facts and circumstances warrant the issuance of a TAO.

13.1.20.4.2  (12-15-2007)
Summary Attachment Writing Tips

  1. The purpose of the Summary Attachment to Form 9102 is to provide a synopsis of the relevant facts and authorities that will convince the affected OD/Function that the proposed action is appropriate.

  2. Additional items to include with the Summary Attachment are:

    1. A list of exhibits so that reviewers and other recipients of the TAO can easily locate key documents. A cover page can identify each exhibit provided for review.

    2. Copies of key factual documents referenced in the Summary Attachment (e.g., bank statements or IRS Notices).

    3. Copies of key authorities referenced in the Summary Attachment (e.g., sections of the Code or IRM).

  3. Make sure conclusions are supported by legal or administrative authority and the CA applies the law to the specific facts of the case.

    Example:

    Instead of saying: "Release the levy because the taxpayers will be evicted," consider using: "Release the levy on taxpayer's bank account because the taxpayers meet the economic hardship requirements under IRC 6343(a)(1)(D) and Treasury Reg. § 301.6343-1(b)(4). Section 6343 and the regulations allow the release of a levy when a taxpayer is unable to meet his basic living expenses. The attached eviction notice and financial statement are evidence that the levy of taxpayers’ bank account has made them unable to meet their basic living expenses."

  4. Avoid including irrelevant background information in the body of the summary.

  5. Do not write emotionally.

  6. When including short quotations of three lines or less, use quotation marks to set the quotation off from the text so that the reader can determine where the quote begins and ends. For longer quotes, indent the quoted text.

  7. Organize the Summary Attachment by using headings (e.g., Background, Conclusion, and Analysis sections) and sub-headings. This is especially important if the Summary Attachment is more than one page.

  8. Although styles may vary and certain issues may require different approaches, one organizational approach for Summary Attachments is described as follows:

    1. The Background section of the Summary Attachment may include a time line limited to relevant facts supporting the conclusion that the proposed action should be taken.

    2. The Conclusion section of the Summary Attachment may include a brief statement that the proposed action should be taken and list the reasons for that conclusion. This section may be easier to compose after the Analysis or Discussion sections of the Summary Attachment are completed.

    3. The Analysis or Discussion section of the Summary Attachment provides all of the analysis and detail that leads the reader step-by-step to the conclusion.

  9. Each point raised in the Analysis or Discussion section of the Summary Attachment could be organized as follows:

    1. Begin with a conclusion.

    2. State the relevant rule, and include citations to authorities (e.g., the Code, regulations, cases, IRM, etc.).

    3. Apply the relevant facts to the rule, referencing documents or other sources that form the basis of any factual conclusions.

    4. Restate the conclusion reached by applying the facts to the rule.

13.1.20.5  (12-15-2007)
TAO Appeal Process

  1. Care should be taken at all levels of the TAO appeal process to adhere to the timeframes for action as set forth below in this section. However, in some circumstances, the need to take action will be so time-sensitive that the NTA may set shorter timeframes in a particular case.

  2. Upon receipt of the TAO, the Responsible Official in the OD/Function can either take the action requested on the Form 9102 or appeal the request.

  3. If the Responsible Official agrees to the terms of the TAO, the OD/Function will take the action requested by the date stated on the TAO. Once the action has been taken, the Form 9102 will be signed by the Responsible Official and returned to the LTA to monitor the action for case closing.

    Note:

    Upon notification that the OD/Function agrees to take the action outlined on the TAO, the LTA or designee must notify the TAG analyst via Secure e-mail of the decision.

    Note:

    If the IRS does not provide any response by the date stated on the TAO, the LTA will contact the Responsible Official to explain the procedures, determine the intent and provide a revised response date. If the IRS still does not respond, the LTA will raise the issue to the Area Director who will contact the manager of the Responsible Official.

  4. If the Responsible Official decides to appeal the TAO, a written request for reconsideration will be forwarded to the initiating LTA within one workdayof the OD/Function receiving the Form 9102.

  5. Upon receipt of the request for reconsideration, the LTA can modify or rescind the TAO or sustain the appeal.

    • When appropriate, the LTA will have an additional conversation with the Responsible Official to discuss the request for reconsideration before making a decision to continue the TAO appeal process.

    • If the LTA sustains the appealed TAO, the LTA will forward the appeal to the Area Director for review. (In the case of the DC LTA, he will forward the appeal to the EDCA.) The case folder should be assembled in accordance with Exhibit 13.1.20-2, TAO Case File Assembly including the written request for reconsideration and the TAO Check List.

    Note:

    The LTA is responsible for making a complete copy of the case file for his or her records.

  6. Within one workday of receiving the appeal from the LTA, the Area Director will review the appeal and make a decision to sustain, modify, or rescind the TAO.

    Note:

    For TAOs issued by the DC LTA, replace references to Area Director (AD) with the EDCA.

    • If the Area Director decides to rescind the TAO, the case folder is returned to the LTA along with a written discussion of the rationale for rescission.

    • If the Area Director decides to modify the TAO, the Area Office will forward the modified Form 9102 back to the Responsible Official in the OD/Function who prepared the initial written request for reconsideration.

    • If the Area Director agrees with the LTA, a memorandum supporting the decision to sustain the TAO will be prepared and placed in the case folder. The Area Director will forward a copy of the Form 9102, the Summary Attachment and the memorandum sustaining the appeal to the next level of OD/Function management (e.g., Territory Manager) for review. At the same time, the original Form 9102, Summary Attachment and assembled case file are forwarded to the Director, TAG by overnight delivery.

      Note:

      If there is not another level of management in the OD/Function, the Area Director will send the information only to the Director, TAG.

  7. Within one workday of receipt of the appeal, the next level of management in the OD/Function must decide whether to comply with or continue the appeal of the TAO. If the manager sustains the appeal, he or she must prepare a written response and return the file to the Area Director.

  8. Upon receipt of the appealed TAO from the manager of the OD/Function, the Area Director will immediately notify the Director TAG, and send the case file by overnight mail.

  9. Upon receipt of an appealed TAO from the Area Director, the Director TAG will immediately notify the TAG Manager and the TAG Analyst of the TAO receipt for record keeping purposes and expeditiously forward the file to the NTA for review.

  10. Within two workdays of receiving the appeal from TAG, the NTA will make a decision to sustain, modify, or rescind the TAO. The NTA will fax the decision to the Responsible Official on the decision date.

    1. If the NTA rescinds the TAO, the decision will be faxed to the Area Director the same day the decision is made. The Area Director will notify the initiating LTA for case closing.

    2. If the NTA sustains or modifies the TAO, the Responsible Official will make the decision whether to take the action or continue with the appeal within one workday. The Responsible Official will advise the NTA of his or her decision. The NTA will fax a copy of the decision to the Area Director who will notify the initiating LTA.

    3. If the Responsible Official agrees to take the action requested on the TAO, the Responsible Official must immediately take the action. If the Responsible Official decides to continue with the appeal, the NTA will immediately forward the appeal to the Deputy Commissioner/Commissioner.

  11. Within two workdays of receiving the appeal, the Deputy Commissioner/Commissioner will sustain, modify, or rescind the TAO.

    1. If the Deputy Commissioner/Commissioner rescinds the TAO, the written decision, including a written rationale for rescinding the TAO, will be faxed to the NTA the same day the decision is made. The NTA will fax a copy of the decision to the Area Director who will notify the initiating LTA for case closing.

    2. If the Deputy Commissioner/Commissioner sustains or modifies the TAO, a copy of the decision will be faxed to the NTA the same day that the decision is made. The NTA will contact the Responsible Official to advise of the decision. The Responsible Official must immediately take the action on the TAO. The NTA will fax a copy of the decision to the Area Director who will notify the initiating LTA to monitor the action for case closing.

13.1.20.6  (12-15-2007)
Principal Residence Seizure

  1. In cases of principal residence seizures (including the sale and expiration of the redemption period action) where the LTA determines relief is appropriate but the OD/Function will not provide relief, the LTA will issue a TAO to the Responsible Official. If the Responsible Official disagrees with the action requested, an appeal of the TAO is handled as described in the previous text.

  2. Upon review of the actions taken by the OD/Function, there are situations where the LTA agrees that "No-Relief" can be provided. Because of the severity and sensitivity of personal residence seizures, the Area Director will review the "No-Relief" determination.

Exhibit 13.1.20-1 
Taxpayer Assistance Order Check List

LTA (Check off as action completed) Action Items
  Ensure that case meets TAS criteria.
  Ensure that a § 7811 significant hardship determination was made and documented.
  Ensure that the office sufficiently developed the case issue(s) and that case documentation supports significant hardship.
  Ensure the CA researched IRM, SERP, IDRS, TAMIS, ACS, ICS, IRC, etc., and included the research in the case file.
  Ensure a Counsel opinion at the local level was obtained, if needed, and include it in the case file.
  Ensure the CA included a detailed timeline of actions in the case file.
  Ensure an LTA fact sheet is included in the case file.
  Make contact with the OD/Function having responsibility to take the action and establish a reasonable timeframe to complete the requested action.
  Clearly communicate the action(s) requested and the timeframe for completion to the OD/Function and clearly document this on TAMIS. If making contact face to face or via the telephone, clearly document on the TAMIS History Screen the specifics of what was discussed and agreed to, as well as the timeframe for an action to be completed.
  Ensure the action has not been taken and the case has not been satisfactorily resolved even after a reasonable process of consultation with the responsible personnel of the OD/Function.
  Notify Area Director of TAO issue and issuance of TAO.
  Make contact with Director, TAG to advise of TAO issuance.
  Send Form 9102 (TAO) and Summary Attachment to Director TAG by scanning and sending by Secure E-mail.
  Ensure the LTA made a complete copy of the case file for his or her records in the case of an appealed TAO.

Exhibit 13.1.20-2 
TAO Case Folder Assembly

A TAO case folder should be clearly tabbed and assembled in the order listed below. The outside front of the folder should be labeled with the taxpayer name and TAMIS case file number. Not all of the information listed below will be relevant to the issuance of the TAO in every case. In addition, only information relevant to the tax year(s) of the TAO should be included. Unless otherwise indicated, copies, not originals, of all information should be submitted. The tab headings are listed in bold and may not be all inclusive:

Left Side of Folder (top to bottom)

  • Form 9102 - Original Taxpayer Assistance Order (TAO).

  • TAO Summary Attachment (required) - CA Facts of the case, including a detailed timeline of case actions.

  • (SB/SE, W & I, LMSB, TE/GE, Appeals or Counsel) Rebuttal - Original written appeal to the Form 9102 from the OD/Function.

  • Form 911 or Incoming Correspondence - Copy of the Form 911, Request for Taxpayer Advocate Service Assistance (And Application for Taxpayer Assistance Order), or written/verbal request for assistance.

  • Hardship Validation - Documentation to confirm IRC 7811 determination of significant hardship, which may include oral statements documented in TAMIS.

  • Operation Assistance Requests (OARs) - Copies of OARs that have been issued.

Right side of Folder (top to bottom)

  • TAMIS (required) - Form 911 prints for all cases relating to the TAO issue [See IRM 13.1.20.2].

  • IDRS (required) - All appropriate IDRS prints (ENMOD, SUMRY, TXMOD, IMFOL, BMFOL, INTST, AMDIS, etc.)

    Note:

    The starting page for each command code should also be tabbed.

  • i-trak- Copy of any i-trak control and incoming correspondence, if it exists.

  • Returns - If warranted, copies of returns (not originals), in descending order (most recent return on top).

EXAMINATION INFORMATION - Of the tab headings listed below, only include the information that is relevant to the issuance of the TAO.

  • Open Exam - Documentation taxpayer has submitted to Exam for consideration.

  • Revenue Agent Reports (RAR)/CP2000 - Copies of CP2000 or Revenue Agent Reports (not originals).

  • Statutory Notices of Deficiency (SNOD) - Copies of any Statutory Notices of Deficiency.

  • Audit Reconsideration - Audit reconsideration support ( Form 886-H information, substantiation of disallowed/questioned expenses, etc.).

COLLECTION INFORMATION - Of the tab headings listed below, only include the information that is relevant to the issuance of the TAO.

  • Notice of Federal Tax Liens (NFTL’s) - Copies of any Notices of Federal Tax Lien filed, released or withdrawn.

  • Collection Information Statement (CIS) - Taxpayer financial information (Form 433-A and Form 433-B) including national asset locator research.

  • Notices of Levy - Copies of any Notice of Levy or Release of Levy.

  • Collection Appeals Process (CAP)/ Collection Due Process (CDP) - Any information relating to the Collection Appeals Process or Collection Due Process (or Equivalent Hearing), including a copy of Form 12153, Request for a Collection Due Process Hearing (Also included under this tab would be any response from Appeals regarding a CDP hearing).

  • Installment Agreements (IAs) - Copies of any Installment Agreements.

  • Offer In Compromise (OIC) Information - Form 656, rejection letter(s), taxpayer appeal of rejected OIC, etc.

  • Trust Fund Recovery Penalty (TFRP) - Trust Fund Recovery Penalty information, including the Form 4180, Report of Interview with Individual Relative to Trust Fund Recovery Penalty or Personal Liability for Excise Tax.

  • Bankruptcy - Any bankruptcy information.

APPEALS INFORMATION - Only include information that is relevant to the issuance of the TAO issue.

  • Appeals - Copies of any Appeals information (closing agreements, Form 870, letters from Appeals).

OTHER INFORMATION - Of the tab headings listed below, only include the information that is relevant to the issuance of the TAO.

  • Internal Revenue Manual (IRM) - Copies of relevant IRM Sections (TAS IRM, Function IRM’s, SERP Alerts, Operating Division Memorandums, etc.).

  • Legal Research - Copies of the IRC, regulations and court cases in support/defense of TAO court cases.

  • Counsel Opinions - Opinions from Counsel regarding the TAO issue, LTA/Area Director position on Counsel opinion.

  • Waivers - Form 900 (CSED) or Form 2750 (ASED).

  • Correspondence - Copies of correspondence sent between TAS and the IRS, in descending order (most recent date on top).

  • Automated Collection System (ACS) - Applicable ACS screen prints, including the history in descending order.

  • Integrated Collection System (ICS) - Applicable ICS screen prints, including the history in descending order.

  • Desktop Integration (DI) - Applicable DI screen prints.

  • Power of Attorney POA - Form 2848, Power of Attorney, or Form 8821, Tax Information Authorization.

  • Other - Any misc. documents (payroll records, Form W-2 & Form W-3) and anything not included in one of the categories above.


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