Purpose:IRC 7811 authorizes the National Taxpayer Advocate (NTA) to issue orders, called Taxpayer Assistance Orders (TAOs), to assist taxpayers who are suffering or are about to suffer a significant hardship as a result of the manner in which the internal revenue laws are being administered by the IRS. This section contains the procedures for issuing, modifying, appealing, and rescinding TAOs.

Audience: The primary users of this Internal Revenue Manual (IRM) are TAS Case Advocacy employees, the NTA, and the NTA’s staff.

Policy Owner: The National Taxpayer Advocate.

Program Owner: The Executive Director Case Advocacy - Intake and Technical Support (EDCA-ITS).

A TAO is a powerful statutory tool, delegated by the NTA to LTAs to resolve taxpayer problems. An LTA will issue a TAO to order the IRS to take any action as permitted by law, cease a certain action, or refrain from taking a certain action. A TAO may not make a substantive determination of any tax liability (see IRM 13.1.20.4(4) for further clarification). A TAO may also order the IRS to expedite consideration of the taxpayer’s case, reconsider its determination in a case or review the case at a higher level. If TAS determines that a taxpayer faces significant hardship and the facts and the law support relief, an LTA may issue a TAO when the IRS refuses or otherwise fails to take the action that TAS requested to resolve the case.

A TAO is generally part of a larger process of communication between a taxpayer, TAS and the Operating Division (OD)/function. Before issuing a TAO, TAS has had a conversation with the OD/function and may have issued an Operations Assistance Request (OAR) in an attempt to resolve the matter.

Generally, a TAO is issued on a single case after TAS and the OD/function fail to agree on the proper resolution of the issue(s) in the case. In appropriate circumstances, however, a bulk TAO can be issued.

When the OD/function appeals the TAO or a portion of it, the OD/function must provide a written explanation, and may, if applicable, suggest alternative actions to those ordered in the TAO. It is in TAS’s discretion to adopt or reject such alternatives.

In order to resolve the issue as quickly as possible, the parties should be forthcoming about the facts and the law that are relevant to the requested relief. If, for example, the IRS responds that it cannot comply with a TAO because the law or facts do not support the relief, then it should provide TAS with all relevant facts, documentation, authorities, and analysis to justify its position. Similarly, if the OD/function raises a concern in its appeal and TAS discovers or develops additional facts, documentation, or authorities that relate to this concern, then TAS should provide the OD/function with the new information. TAS may also ask the OD/function to reconsider its initial response if there are additional facts, documentation, or authorities. Finally, if the additional facts, documentation, or authorities that TAS discovers or develops indicate that the relief requested in the TAO is not warranted, TAS must rescind the TAO.

LTAs should consider issuing a TAO when all of the following factors are present:

When a 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 elevate the case to the LTA who must review the case within two business days. In addition to elevating the case to the LTA, the CA may have a conversation with the Lead Case Advocate (LCA) or group manager.

When the TAS Internal Technical Advisory Program (ITAP), during the course of a review of a case sent to ITAP, concludes that a TAO is warranted, the case should be considered for a TAO within two business days of the ITAP review. Generally, ITAP uses **IT TAO** to signify that it is recommending a TAO. The ITAP reviewer will include the LTA on their email to the CA providing their advice. Upon receiving the case back from ITAP with this conclusion, the CA should elevate the case to the LTA for consideration of a TAO. In addition to elevating the case to the LTA, the CA may have a conversation with the Lead Case Advocate (LCA) or group manager. If the LTA determines that a TAO is not warranted, the LTA must document the case history with the determination, including the reason(s) for the determination not to issue the TAO.

When the LTA reviews the ITAP weekly report (IT TAO) on cases where a TAO was recommended, the LTA should immediately consider the case for a TAO. If the LTA determines that a TAO is not warranted, the LTA must document the case history with the determination, including the reason(s) for the determination not to issue the TAO. The LTA should review cases where ITAP recommends a TAO without delay, at a minimum every week.

When there is a case open for over 365 days, the LTA should review the case for the issuance of a TAO. If the LTA determines that a TAO is not warranted in a case open for over 365 days, the LTA must document the case history (or the successor case management system) with the determination, including the reason(s) for the determination not to issue the TAO.

When the CA encounters a situation where two (2) ODs/functions are refusing to take an action requested by TAS and instead are directing TAS to the other OD/function, the CA must immediately elevate the case to the LTA for TAO consideration. In addition to elevating the case to the LTA, the CA may have a conversation with the Lead Case Advocate (LCA) or group manager. If the LTA determines that a TAO is not warranted, the LTA must document the case history with the determination, including the reason(s) for the determination not to issue the TAO.

In cases where any IRS employee is not following applicable published administrative guidance (including the IRM or Service Level Agreement (SLA)), TAS is required by IRC 7811(a)(3) to analyze the factors in determining whether to issue a TAO in the manner most favorable to the taxpayer.

In cases, such as potential scheme cases, where IRS functions have not yet developed procedures to resolve a taxpayer’s issue, see IRM 13.1.24.6.4.7, Whether to Issue OARs or TAOs.

Pursuant to Treasury Regulation 301.7811-1(d), a TAO may be issued to any IRS office, OD, or function, including the IRS Independent Office of Appeals (Appeals), with the following exceptions:

IRC 7811(b)(1) and (2) and Treas. Reg. 301.7811-1(c) provide that a TAO may require the IRS to, within a specified time, release a levy, cease any action, take any action permitted by law, or refrain from taking any action, with respect to a taxpayer under:

A TAO may only order actions that are permitted by law and supported by the facts of the case. When deciding whether to issue a TAO, TAS makes the determination about whether the facts and the law support relief for the taxpayer. TAS should view the facts in the light most favorable to the taxpayer. For purposes of this determination, TAS may request a legal opinion from the IRS Office of Chief Counsel. See IRM 13.1.10.2, Obtaining Legal Advice from Chief Counsel.

A TAO is not a substitute for an established administrative or judicial review procedure but is intended to supplement existing procedures.

A TAO may not order the IRS to make a specific substantive determination of any tax liability, such as granting innocent spouse relief, accepting an offer in compromise (OIC), or otherwise determining a person’s tax liability. However, a TAO may advocate for a specific substantive determination. It may require the IRS to review the facts and the law and consider them in reaching a determination. In such cases, the TAO should include an analysis by TAS that applies the applicable law and other guidance to the facts.

Even in situations where TAS may not order the IRS to make a particular substantive determination, it may order the IRS to:

When a TAO orders the OD/function to expedite, reconsider, or review a case at a higher level, and TAS is advocating for a particular substantive determination, the TAO should include a written explanation of why it is appropriate for the IRS to make the determination.

The CA must ensure the case history is well documented for review. If the CA (or another person in the office with knowledge of the case, such as the LCA or TAGM) has not discussed the case with the LTA prior to the case being elevated for the issuance of a TAO, the CA prepares a summary of the case for the LTA. The summary should include the subject of the dispute with the IRS, the actions and the dates of the actions taken by TAS to resolve the dispute, the legal or administrative authority involved in the dispute (IRM, IRC, etc.), the position of the IRS regarding the dispute, the name, position, and telephone number of the OD/function person who is refusing to take the requested action, and the OD’s basis for the refusal to take the action.

When the LTA has determined that the issuance of a TAO is necessary, the LTA, or their designee, prepares the TAO by completing the Form 9102, which contains the following:

In most cases, 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; however, there are circumstances (e.g., urgency needed to issue TAO to prevent harm to taxpayer, lack of response by the Responsible Official in the OD/function, bulk TAO, etc.), where a conversation cannot take place. Although it is not necessary to issue a Form 12412, Operations Assistance Request (OAR), before issuing a Form 9102, in most cases the CA will issue an OAR prior to a TAO, if time permits. If no agreement can be reached, consider the issuance of a TAO. See IRM 13.1.19.7, OARs - Operating Division or Functional Unit Disagrees - Action Not Taken, for additional information.

LTAs may use the TAO Checklist to ensure the necessary steps have been taken prior to issuing a TAO. See Exhibit 13.1.20-1.

Document the significant hardship determination. See IRM 13.1.18.3.2, Case Acceptance Determination, for more information. A significant hardship MUST exist at the time the TAO is issued.

When determining both the date by which the OD/function should notify TAS of its response and the date by which the OD/function should take the action specified in the TAO, the LTA should provide a reasonable timeframe for the IRS to both respond and take the action(s) based on the facts and circumstances of the case. If the OD/function requests additional time to take the action requested in the TAO, the LTA must review the facts and circumstances of the case to decide whether to grant the extension. The extension may be granted orally or in writing (memo to OD/function, email, etc.) and should be recorded in the case file.

The TAO should remind the OD/function about the imminent expiration of any relevant limitation periods.

In deciding to issue a TAO, the LTA may consult with ITAP employees as well as TAG employees. If questions remain after consulting with ITAP and TAG, the LTA may consult with the Deputy or their staff, the NTA’s staff (e.g., analysts, tax legal specialists, or attorney advisors), and the Office of the Division Counsel/Associate Chief Counsel (NTA Program) if advice is needed on issuing or drafting the TAO. If legal advice is needed, generally the field offices of the Division Counsel (Small Business/Self Employed) provide legal support or advice to TAS. See IRM 13.1.10.2, Obtaining Legal Advice from Chief Counsel. If, however, legal advice is needed about the TAO authority in general or the scope of a TAO, consult the Office of the Division Counsel/Associate Chief Counsel (NTA Program).

When the TAO is ready to be issued to the function, the LTA should transmit the TAO via a secure email containing the following in the body of the email:

When a TAO is issued, a copy of Form 9102 or a briefing document must be sent to the &TAS TAO Outlook distribution list, via secure email, with a copy uploaded to the case. See IRM 13.1.11.2.1.4, Document Attachments.

When a TAO is issued, the LTA or other designated TAS employee must add a TAO record to Phoenix.

When a written appeal is received, the issuing official, usually the LTA, will upload a copy of the appeal to the case file, forward a copy via secure email to the&TAS TAO Outlook distribution list and update the required TAO appeal information in Phoenix. See the TAS Phoenix User Guide for instructions on completing the required fields in Phoenix when a TAO is progressing through the appeals process.

When the TAO (and TAO appeal process, in certain cases) is completed, the LTA will upload a copy of the completed TAO, if available, to the case file and send a copy to the “&TAS TAO Outlook distribution list. Additionally, the issuing official will update the required TAO information and close the TAO in Phoenix. See the TAS Phoenix User Guide for instructions about completing the required fields in Phoenix when a TAO is closed.

All oral communication between the office issuing the TAO and the OD/function to which it is issued should be recorded in the case history. All written communication between the TAS office issuing the TAO and the OD/function to which it was issued should become part of the case file. See IRM 13.1.11, Case and Inventory Management, for more information on how to properly maintain a case file and preserve records and correspondence.

If the OD/function does not agree with the action ordered in a TAO, the OD/function can appeal the TAO. The responsible official or those in the responsible official’s management chain retain the ultimate responsibility for taking the action or declining to take the action ordered by a TAO.

All parties to the TAO appeal process are encouraged to dialogue with each other prior to a final decision being made on the action sought by TAS in the TAO by a deciding official.

Upon a taxpayer's request for a copy of the TAO, TAS employees should explain that the NTA must approve the release of applicable material but that the employee will make the request for the taxpayer. The taxpayer is not required to submit a Freedom of Information Act (FOIA) request.

Before releasing a TAO, the TAS employee who issued it will:

For questions about whether information should be redacted, there are a variety of resources available to TAS employees. IRM 11.3.13, Freedom of Information Act, contains guidance on the types of information that is exempt from public disclosure. TAS employees may also contact the Disclosure help desk by email *Disclosure, or by telephone at 1-866-591-0860.

TAS employees who cannot release information that a taxpayer has requested should inform the taxpayer that IRS employees who are actively working a taxpayer’s case may be able to provide access to certain information. See IRM 4.26.14.4, Disclosure of Tax Information. For example, IRS employees working open cases are generally directed to give taxpayers “routine access” to their files (including copies of work papers and other records) unless doing so would impair enforcement, as described on the IRS website.

If the IRS employee who is actively working the case does not release the information, or if the taxpayer would like to obtain documents that TAS cannot release, the taxpayer can make a FOIA request, as described in the IRS FOIA Guide on the IRS website.

The TAO should be clear, direct, and easy to understand. Direct and easy to understand means no jargon or acronyms that are difficult for any reader to understand, especially readers who do not work with IRS programs and command codes often or ever. The TAO should lead the reader to agree with the action(s) ordered.

Whenever possible, the TAO must include references to applicable legal and procedural rules, such as the IRC, Treasury Regulations, case law, IRMs, and the Taxpayer Bill of Rights.

Only relevant information and authorities should be included in the TAO. The TAO explains why the IRS should take the action directed by TAS. Irrelevant information or authorities will distract the OD/function from reaching the conclusion that it should comply with the TAO.

The TAO is an opportunity for TAS to explain the significant hardship that the taxpayer is experiencing or will suffer if the OD/function does not comply with the TAO.

Do not write emotionally.

When typing, use mixed case rather than ALL CAPITAL LETTERs.

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

In the section on the Form 9102 entitled Required Action to Be Taken, TAS should concisely and specifically list what we want the IRS to do. For example, if we want the IRS to review documents submitted and determine that the taxpayer is entitled to the Earned Income Tax Credit (EITC), it should be stated just like that: “TAS is ordering the IRS to review the documents submitted and determine that based on the documentation, the taxpayer is entitled to the Earned Income Tax Credit.” It should not be stated that TAS is directing the IRS to allow the EITC for the taxpayer. Further, TAS should not issue TAOs with the requested action as “review the documents” without providing why TAS wants the documents reviewed, nor should the requested action be “provide relief” without explaining what the relief should be.

In the section on the Form 9102 entitled “Basis for TAO,” TAS needs to briefly provide the reason why the TAO is being issued. There is no need to recite the law or facts since they will be included in subsections 6a and 6b of the Form 9102. Instead, in the Basis section, TAS should provide an explanation that generally includes the hardship the taxpayer is suffering or will suffer if the action requested within the TAO is not taken by the IRS.

In subsection 6a of the Form 9102, the Facts section, include every fact necessary to support your arguments. It is, however, very easy to get carried away with the facts and include too much information. While the facts of many of TAS cases are fairly complicated, this section should present them in an orderly, sensible AND CONCISE way.

In subsection 6b of the Form 9102, the Applicable Authorities section, include the relevant law or guidance that supports the requested action. Here is where TAS should include the IRC section, the IRM, the regulation, or relevant authority. However, it is not necessary to reproduce entire sections of the Code or the IRM; if TAS produces the reference to the authority, the IRS has the ability to read the section.

In subsection 6c of the Form 9102, the Analysis section, the authorities should be applied to the facts. In some instances, the best way to write this section is to try first to state the issue, then identify the law (state the relevant rule or authorities that are the basis for your position), then provide analysis. In some cases, the analysis may be very brief, such as pointing to the relevant statute regarding the proper time for assessment, and thus there is no need provide a lengthy, detailed analysis section. In other cases, the analysis may need to provide the IRS a brief history on why a particular code section applies to a taxpayer, such as when TAS is advocating for a low income taxpayer without traditional documents to be allowed the EITC. In these cases, the analysis section may be lengthy, and may need to alert the reader to the facts of being low income, and the difficulties of keeping records when you are moving from one apartment to another several times each year.

In sections 7 and 8 on the Form 9102 entitled Previous BOD contacts and Timeline of Relevant Actions, do not list every contact or every action. Only list the relevant contacts and actions. For example, do not include the days the CA called the BOD and left messages, or the day the BOD called TAS to ask for an extension on returning the OAR, or the date the POA sent TAS documents, or the date the criteria code was changed, unless such information is absolutely relevant to the case.