31.1.1  Legal Work

Manual Transmittal

June 03, 2014

Purpose

(1) This transmits revised CCDM 31.1.1, Guiding Principles; Legal Work.

Material Changes

(1) .CCDM 31.1.1, Guiding Principles; Legal Work, was revised to reflect updated requirements for coordinating issues, code sections, and documents with the appropriate Associate Chief Counsel office in the National Office. Former Exhibit 31.1.1-2 was combined with Exhibit 31.1.1-1 as one exhibit.

(2) Exhibit 31.1.1-1, Issues Requiring Associate Office Review, was revised to include an updated Associate office review list.

(3) Exhibit 31.1.1-2, Direct Filing and Service of Documents, was deleted.

Effect on Other Documents

CCDM 31.1.1 dated March 25, 2013 is superseded. This revision incorporates the procedures described in Chief Counsel Notice CC-2014-005.

Audience

Chief Counsel

Effective Date

(06-03-2014)

Drita Tonuzi
Associate Chief Counsel
(Procedure and Administration)

31.1.1.1  (08-11-2004)
General Principles for Handling Legal Work

  1. The role of the Office of Chief Counsel is to ensure the correct and uniform application of the tax laws. It is, therefore, the responsibility of each component of the Office, individually and collectively, to ensure that all published guidance, documents filed in litigation, and legal advice issued to the Service or to taxpayers accurately reflect the position of the Office.

  2. It is the responsibility of each individual Chief Counsel attorney to ensure the uniform application of the tax laws and the fair disposition of cases. Both objectives require the attorney to thoroughly develop the facts and issues in the case before the trial or settlement of a case or the issuance of advice to any component of the Service. Where there is any doubt regarding the position of the Service, the attorney must request advice from the office or offices responsible for developing and maintaining the Service’s position on the proper interpretation of the section or sections at issue. The overall Service objective of uniform application of the tax laws must be kept in mind to ensure that the correct legal theory is maintained at all times.

  3. In interpreting and applying the provisions of the Internal Revenue Code, our responsibilities must be discharged in a balanced and impartial manner, with neither a "Government" nor a "taxpayer" point of view. It is our responsibility to find the true meaning of the statutory provision and not to adopt a strained construction with the goal of maximizing revenue. We properly protect the revenue only when we ascertain and apply the true meaning of the statute.

  4. The proper handling of problems of interpretation and application of the tax laws requires cooperation and consultation between the various offices in Chief Counsel, the Operating Divisions and other components of the Service, and the Department of the Treasury. Uniform interpretation requires efforts to arrive at common understanding of the problems involved and efforts to reach common ground for handling these problems. Although each component of the Office has a separate and distinct role to play in achieving our mission, the positions taken must be consistent with the above principles and should reflect a consensus arrived at through close coordination across all Division Counsel and Associate Chief Counsel offices. Anything signed or approved by or in the name of the Chief Counsel must represent the position of the entire office and not merely the position of a particular division or office.

31.1.1.1.1  (08-11-2004)
Determination of Service Position

  1. Service position, as a general rule, is initially determined in published guidance, which includes regulations (including proposed regulations), revenue rulings, revenue procedures, and notices and announcements published in the Internal Revenue Bulletin. It is important that all documents issued by the Office reflect service positions where it is unclear whether a published position covers a particular situation, the Associate Office with responsibility for the guidance at issue should be consulted.

  2. The Office of Chief Counsel will also occasionally transmit procedural guidance or litigating positions through Chief Counsel notices, litigation guideline memoranda (LGMs), or other documents. While such documents are not approved by the Commissioner, and, thus, cannot be relied upon by taxpayers as a statement of Service position, they should not be disregarded by Chief Counsel attorneys. Where it is unclear whether positions set forth in the documents cover a particular situation, the Associate office that issued the document should be consulted.

  3. Similarly, Technical Advice Memoranda (TAMs) and Private Letter Rulings (PLRs) can only be relied upon by the particular taxpayer whose case they address. Although not precedential, such documents should be reviewed for discussions of legal analysis as applied to particular factual scenarios. Consultation with the Associate office is appropriate prior to taking a position that appears contrary to the position taken in the TAM or PLR.

31.1.1.1.2  (08-11-2004)
Policies of the Service

  1. In some instances the terms "policy" and "position" are used in documents interchangeably. Normally, the use of the word "policy" within the Service is confined to those matters in which the Commissioner exercises discretion or has an established policy statement on the matter in question. Thus, the term "policy" should not be used unless the reference is to a matter that is the subject of a policy statement or other document approved by the Commissioner or his delegate. In general, briefs, actions on decision, and legal memoranda should refer to the "position" of the Office. In particular cases, the Office of Chief Counsel may have an established "position" on the law which is to be followed by all Associate Chief Counsel and Division Counsel offices, but it is not generally characterized as "policy." The Chief Counsel may, however, promulgate policies to be followed by the Office in handling matters within its jurisdiction, such as the litigation and settlement of cases.

31.1.1.1.3  (08-11-2004)
Principles of Litigation

  1. The proper method for conveying the positions of the Office and the policies of the Service is through published guidance. In contrast, litigation should be used as an enforcement tool to advance and defend established positions, not as a vehicle for making policy. The importance of litigation to the administration of the tax law is not measured by the amount of taxes collected through litigation, but rather by its success in defending the Service’s position on the proper interpretation of the tax laws. The position taken in a case must be one that is reasonable based on the facts of the case and one which makes the maximum contribution to a sound tax system. Thus, it is the broad effect of the case which must govern our litigation attitude in specific cases. This litigation policy is applicable to all cases, including those we refer to the Department of Justice.

  2. The position taken in any case must represent the official position of the Service, not just the position of a particular division or office. Attorneys as well as supervisors must always take cognizance of the fact that a position taken solely to win a case against one taxpayer may in the future be used by other taxpayers against the Service. These principles apply with equal force even when the sole or primary purpose of the argument is to improve the Government’s position in settlement negotiations. Thus, the development of the litigation position of the Office of Chief Counsel must take into consideration the broad effect of such position as it affects all taxpayers in the administration of the tax laws.

  3. In applying the litigation policy of the Office, it may be necessary in particular cases to settle or concede an issue which ordinarily would be litigated. This type of situation usually arises in cases where, under the existing facts and circumstances, it would be unwise to use that case as a vehicle to establish the broad objectives of the Service. Also, where an appellate court has decided an issue in a case contrary to the Service position, it may be necessary to settle or concede the issue in cases appealable to that court until an appropriate case can be litigated in another circuit. These types of cases must be coordinated with the Associate Office or Offices responsible for interpretation of the section or sections at issue. The Associate Office should consider whether guidance is appropriate to help resolve the issue.

  4. Consistent with Executive Order 12988 on Civil Justice Reform, it is the policy of the Office of Chief Counsel, unless there are compelling reasons otherwise, to settle or eliminate as many issues as is feasible or justifiable prior to submission of a case for decision by the court. Every effort should be made to settle the issue or issues on which there are no real basic differences between the parties.

31.1.1.1.3.1  (08-24-2012)
Settlement Policy

  1. As part of the Office’s responsibility for defending the positions of the Service in deficiency proceedings, it is the policy of the Office of Chief Counsel that cases and issued being tried in the Tax Court will be settled on the merits. Even where the amount in controversy is small, the Office will defend the Commissioner’s determination and conduct cases in a manner that supports the Service’s tax administration priorities.

  2. Settlement on the merits usually involves a stipulation as to each issue before the court. Lump sum or blanket settlements which include tax, penalty, and interest should be avoided, and generally should not be entertained or accepted. The Service has a definite policy against settlements without statutory interest on the deficiency.

  3. No case is to be settled on a so called "nuisance basis" either for or against the Government. What constitutes a nuisance settlement is dependent upon the circumstances in each case. When each issue is settled on its merits, the fact that the resulting deficiency is a small percentage of the deficiency amount in the statutory notice does not result in a "nuisance basis" settlement.

  4. In keeping with the policy of settling cases based on the merits of the position determined by the Service, collection aspects of a case are not normally considered as part of a Tax Court settlement. Where a collection based settlement can be considered in a manner consistent with the settlement principles outlined above, an offer in compromise based on collectibility can be considered by the Service prior to the conclusion of the Tax Court case. Such offers should only be considered where the taxpayer would be willing to stipulate to the full amount of the deficiency prior to final acceptance of the compromise. For procedures to follow in such cases, see CCDM 35.5, Settlement Procedures.

31.1.1.2  (08-11-2004)
Roles within the Office of Chief Counsel

  1. The role of the Associate Chief Counsel is to develop and maintain the technical positions of the Internal Revenue Service with respect to proper interpretation of the Code. Associate offices fulfill this role principally through the issuance of published guidance, the legal review of proposed policies and procedures, the issuance of program advice and other advisory products and the review of positions to be taken in the courts in the course of litigation.

  2. The role of the Division Counsel is to provide legal service to specific components of the Service through litigation on their behalf, providing legal advice in specific cases, and providing strategic advice to the executive leadership of those components. Division Counsel develops and executes litigation strategy and provides legal advice based on the technical positions developed and announced by the Associate Chief Counsel.

  3. To the extent that a regulation or ruling does not provide clear guidance on the position of the Service, or that position is not clear from existing case law or the unambiguous language of the Code, the Division Counsel or Associate Chief Counsel must seek advice from the Associate office with responsibility for the subject matter at issue. Coordination is particularly important where there has been a statutory change, new regulations have been issued, published guidance is pending, or there has been a significant new court opinion.

31.1.1.2.1  (08-11-2004)
Published Guidance

  1. Published guidance generally refers to that body of guidance that sets forth the definitive position of the Service, as approved by the Commissioner and the Department of the Treasury. Published guidance must be followed by all components of the Service and can be relied upon by taxpayers in litigation. For purposes of this section, published guidance includes treasury decisions, notices of proposed rulemaking, revenue rulings, revenue procedures, and Internal Revenue Bulletin notices and announcements.

  2. The Associate Chief Counsel is responsible for the development and issuance of all published guidance. In the course of drafting published guidance, the Associate Chief Counsel is charged with building a consensus among all interested parties within the Department of the Treasury, including other offices within Counsel, the operating divisions and other components of the Service, and the Office of Tax Policy, and with elevating significant, unresolved issues to the appropriate official for determination. To the extent necessary, the Associate Chief Counsel is also responsible for coordinating with other Federal agencies, such as the Department of Justice.

  3. The Division Counsel has two key roles to play in the development and issuance of published guidance.

    1. Although the Associate Chief Counsel will be primarily responsible for identifying the need for published guidance based on new legislation and the Service’s program level needs, the Division Counsel is uniquely qualified to identify areas of the law that are unclear to both taxpayers and the Service in the day-to-day resolution of cases. The Division Counsel should bring such issues to the attention of the appropriate Associate and begin a dialogue that will result in issuance of appropriate published guidance.

    2. Published guidance should reflect not only the correct interpretation of the law, but also the practical realities of applying the law in the course of administering the tax system. Division Counsel should contribute to the published guidance process by advising the Associate Chief Counsel on the Service’s ability to apply the proposed guidance as a practical matter.

31.1.1.2.2  (08-11-2004)
Litigation

  1. Division Counsel has primary responsibility for the litigation of cases in the Tax Court and the referral of general litigation and refund cases to the Department of Justice. In this role, Division Counsel is responsible for development and execution of litigation strategy, including selection of cases to litigate, whether to try or settle particular cases, whether to agree to mediation/arbitration, whether to employ expert witnesses, etc.

  2. In the course of litigation, Division Counsel must determine that the position to be advanced in Tax Court or other litigation accurately reflects the Service’s position on the law. To the extent that position is unclear, Division Counsel must coordinate with the appropriate Associate Chief Counsel. This coordination may be accomplished through informal or formal advice procedures, as appropriate for the issue or case.

31.1.1.2.3  (06-03-2014)
Pre-Review of Litigation Documents by the Associate Chief Counsel

  1. In general, documents to be filed in Tax Court, as well as letters to the Department of Justice regarding the prosecution or defense of cases in the bankruptcy or district courts, will not be subject to pre-review by the Associate Chief Counsel. Mandatory pre-review of such documents will, however, be required where:

    1. The continued development of the Service’s position on either the law or the appropriate use of a particular type of motion or other procedural mechanism warrants close coordination between field counsel and national office subject matter experts;

    2. The case raises novel or significant issues. Novel or significant issues include issues relating to recently enacted legislation, issues of first impression, and issues relating to the validity of a regulation or revenue ruling; or

    3. The document to be filed or the proposed letter to the Department of Justice advocates a position contrary to the position taken in published guidance or attempts to distinguish a case from a position taken in published guidance based on the facts of the case.

  2. The Associate Offices, in conjunction with Division Counsel, will establish a list of issues in which pre-review will be required. This will ensure that uniform positions and procedures are adopted and that the published guidance being prepared by the Associate Office is informed by the practical information to be derived from this review. The Associate Chief Counsel and Division Counsel will consult regarding the prompt removal of any pre-review requirement once the Service’s position has become sufficiently established that pre-review is no longer necessary. For a list of issues for which pre-review is mandatory, see Exhibit 31.1.1-1, Issues Requiring Associate Office Review, and Exhibit 35.11.1.-1, Issues Requiring Associate Office Review. Each office is, however, responsible for determining whether pre-review or coordination is warranted based on the standards articulated in paragraph (1), above, regardless of whether the case involves an issue specifically included on the established pre-review list. In addition certain Tax Court documents require review by the Associate Offices.

31.1.1.2.4  (08-24-2012)
Sanctions and Attorneys Fees

  1. As provided in Executive Order 12988 on Civil Justice Reform, a motion for sanctions must be reviewed by the agency sanctions officer. This includes motions by the Government asking the court to sanction opposing parties, as well as motions by opposing parties seeking sanctions against counsel, the United States, the Service, or its employees. The Associate Chief Counsel (Procedure and Administration) is the designated sanctions officer for the Office of Chief Counsel.

  2. Sanctions subject to review by the sanctions officer under the Executive Order include motions to sanction a taxpayer’s representative for violations of section 6673(a)(2), sanctions under the Tax Court Rules of Practice and Procedure, and sanctions based on the Tax Court’s inherent power to regulate conduct in cases that come before it, including any such sanctions imposed or sought to be imposed against Chief Counsel attorneys or Service employees.

  3. In addition to the review required by the Executive Order, it is the policy of the Office that certain other matters involving sanctions will also be subject to pre-review by the Sanctions Officer. Those matters include letters advising opposing counsel of a potential conflict of interest or of a potential motion to disqualify based on a conflict, letters to the Department of Justice recommending that sanctions be sought against an opposing party, and any referral of a private practitioner to the IRS Office of Professional Responsibility. Requests for imposition of the section 6673(a)(1) penalty and motions for attorneys fees (unless involving alleged misconduct by counsel) are generally not subject to Sanctions Officer procedures. Procedures for obtaining the required review are found at CCDM 35.10.2.2.3, Sanctions Requiring National Office Review.

31.1.1.2.5  (08-24-2012)
Appellate Matters

  1. Adverse decisions of the Tax Court, Federal District Courts, the Court of Federal Claims, and the Courts of Appeals will be reviewed by the appropriate Associate Office which will prepare a letter to the Department of Justice recommending for or against appeal. Procedures for preparing appeal recommendations can be found in CCDM 36.2,, Appeal/Certiorari Recommendations.

31.1.1.2.6  (08-11-2004)
Tax Court Liaison

  1. Procedural issues relating to practice before the Tax Court cut across all divisions and offices. In order to maintain uniformity in this area, the Associate Chief Counsel (Procedure and Administration) acts as the Office’s liaison with the Tax Court and the Court of Federal Claims and is responsible for matters of Tax Court procedure.

31.1.1.2.7  (08-24-2012)
Legal Advice

  1. Division Counsel offices are responsible for providing legal advice relating to case development to their respective clients. Such advice is not subject to pre-review by the Associate Chief Counsel except to the extent consultation is necessary to determine the position of the Service. For procedures regarding pre-review of legal advice, see CCDM Part 33, Legal Advice.

  2. Associate offices are responsible for providing legal advice to the Operating Divisions, other components of the Service, and Division Counsel regarding the technical position of the Service with respect to proper interpretation of the Code.

  3. Occasionally, the field client will request case-specific advice directly from the Associate Chief Counsel, rather than going to local Division Counsel, or may turn to local Division Counsel for advice on matters of interpretation of the Code that may be of national application. In such cases, the receiving office should review the request and either forward the request to the appropriate office or coordinate the response as appropriate.

Exhibit 31.1.1-1 
Issues Requiring Associate Office Review

Certain issues listed below by respective Associate office require National Office review. An issue on the Associate office review list must be coordinated regardless of the stage of the case in which the issue arises (e.g., whether in examination or in litigation). Advice issued to the client, briefs and motions filed with the Tax Court and suit and defense letters sent to the Department of Justice must reflect positions consistent with Service legal positions and policies, and uphold the office’s reputation for the highest quality of written product. In order to ensure these attributes, documents involving novel or significant issues contained on the Associate office review list will be reviewed in Associate offices before issuance or filing of the document. The Associate Chief Counsel and Division Counsel will consult regarding the prompt removal of any pre-review requirement once the Service’s position has become sufficiently established that pre-review is no longer necessary.

The issues list set forth below contains both generic and specific significant issues. Any issue included on either list must be coordinated with the affected Associate offices. Although some Associate offices may not have a specific issue list, appropriate coordination of generic issues with those offices is required.

There are issues that do not require Associate office review. An issue not described in the generic or specific issues list is presumed not to require Associate office review. Court documents that contain no issues requiring Associate office review and that are not of a nature that requires Associate office review may be filed directly without Associate office review. Defense and suit letters that do not contain issues on this list may be sent to the Department of Justice without Associate office review regardless of their classification as Standard or S.O.P. See CCDM 34.8.1, Settlement Procedures Overview.

Even though a case does not contain any of the issues described below, novel, unusual, or unique questions may be presented. It is the responsibility of the docket attorney and the reviewer in the field to identify those issues presenting such questions as to warrant review by the Associate offices, and to forward the brief for both prereview and review according to current procedures. For those briefs, motions, and letters which are directly filed or sent to the Department of Justice by the field office, it is the responsibility of the field reviewer to ensure that they are correct factually and legally and of the highest quality. In addition, docket attorneys and reviewers in the field are still required to perform any necessary substantive issue coordination among Division Counsel offices pursuant to existing issue coordination procedures.

Note:

The below list of issues, code sections, and documents requiring Associate office review is also contained in Exhibit 35.11.1-1.

I. Generic Significant Issues that Require Associate Office Review with the Affected Associate Office

A case will be significant such that it requires relevant Associate office review if it involves any of the following matters, regardless of the underlying code section or subject matter:

  1. The validity of a regulation, temporary regulation, revenue ruling, revenue procedure, or other published guidance item (coordination with P&A also required)

  2. A proposed Treasury regulation

  3. An issue where the Government attempts to distinguish a regulation, proposed regulation, temporary regulation, revenue ruling, or revenue procedure

  4. A change in litigation position

  5. An argument contrary to Chief Counsel advice issued in the case

  6. Any statute or statutory amendment that has been enacted within the year preceding the filing date of the document or the due date of the letter to the Department of Justice

  7. Matters to be submitted to the Justice Department Office of Legal Counsel

  8. Nonfrivolous constitutional challenges to statutes, regulations, published guidance or Service administrative practices or any nonfrivolous assertion of the application of the Religious Freedom Restoration Act. Examples of frivolous constitutional issues that need not be reviewed are contained in The Truth About Frivolous Tax Arguments that can be found at http://www.irs.gov/pub/irs-utl/friv_tax.pdf.

  9. Issues appearing on the current Guidance Priority List of pending published guidance projects

  10. A case involving an issue of importance to tax administration, such as:
     — An issue of first impression
     — An interpretation of a statute or regulation when there have been no prior judicial opinions addressing the interpretation
     — An issue affecting large numbers of taxpayers or an industry
     — An issue falling within an operating division’s major strategic goal

  11. A case or issue likely to attract congressional or public attention on a national level

II. Other Specific Issues Requiring Associate Office Review

In addition to the foregoing issues, the following specific issues require Associate office review:

Corporate

  1. Valuation of corporate stock with restrictive sales agreements

  2. Section 385(c)

Income Tax and Accounting

  1. Section 36 credit claimed by first-time homebuyer

  2. Section 36B refundable credit for coverage under a qualified health plan

  3. Section 162 limited to deductibility of a payment of a shareholder’s expenses in the context of a corporate reorganization or buyout and unreasonable compensation in the context of mergers or buyouts or golden parachute payments

  4. Section 170 charitable contribution deductions involving quid pro quo issues for contributions to churches or religious organizations

  5. Section 274(a), except where the issue is whether an activity constitutes entertainment, amusement, or recreation, or where the issue is the deductibility of country club dues, section 274(d), except where the substantiation issue is strictly factual, section 274(e), section 274(g), section 274(k), section 274(m), section 274(n)

  6. Section 6055 reporting of health insurance coverage

Passthroughs and Special Industries

  1. A corporate tax shelter that is a listed transaction within the description in Treas. Reg. § 1.6011-4(b)(2)

  2. Valuation of minority interest discounts or post-death events or valuation issues in the context of family limited partnerships

  3. Chapter 49 and sections 9008 and 9010 of the Affordable Care Act

  4. Sections 513, 543 and 613 regarding rents and royalties paid for oil and gas interests or whether payments to tax-exempt organizations constitute rent or royalties

  5. Sections 4001 through 4907 — excise taxes in chapters 31, 32, 33, 35, 36 subchapters B and D, 38, and 40

Procedure and Administration

  1. The applicability of the Administrative Procedure Act

  2. Bankruptcy issues under B.C § 523(a)(1)(B)(i) involving a Form 1040 filed after assessment

  3. Any suit letter recommending that the government:
     — Join with other creditors to commence an involuntary bankruptcy case against an individual, partnership, or corporation.
     — File an objection to confirmation under B.C. § 1129(d) on the ground that the that the principal purpose of the plan is tax avoidance

  4. General receiver appointments requested by the Government

  5. Injunction, mandamus, or declaratory judgment sought by the Government
     — Preparer/promoter injunction referrals and injunctions to prevent pyramiding, however, do not require Associate office review unless the case involves a novel substantive issue

  6. The ex parte rules on communications with Appeals unless the resolution of the issue is clearly addressed in published guidance, a Chief Counsel notice, or a CCDM provision.

  7. Privilege logs and similar documents identifying third parties, see CC Notice CC-2002-028

  8. Novel privilege and taint issues involving informants, including those described in CC Notice CC-2010-004

  9. The disclosure or potential disclosure of the identity of a confidential source, including any potential disclosure of a whistleblower's identity or any anticipated use of a whistleblower as a witness

  10. Sanctions officer issues, including misconduct on the part of Service employees or field counsel or opposing counsel, disqualification of counsel, recusal or disqualification of judges, referrals to the Office of Professional Responsibility or other ethical issues in litigation

  11. Statistical sampling used by taxpayers to support a refund claim or audit adjustment if Rev. Proc. 2011-42 does not address the issue

  12. Suppression of evidence

  13. Any conscience-based objections to the use of a dependent’s Social Security Number (SSN) or Taxpayer Identification Number (TIN) to claim an exemption under Section 151. Objections may include that the requirement is contrary to the Religious Freedom Restoration Act of 1993 or any provision of the Constitution, such as the Due Process and Equal Protection Clauses of the 14th Amendment, the Due Process Clause of the 5th Amendment, or the Free Exercise and Establishment Clauses of the First Amendment, or cases in which the taxpayer states a belief that a SSN or TIN is the "mark of the beast."

  14. The application of common law economic substance doctrine in novel cases, as well as the application of the codified economic substance doctrine under section 7701(o) and related penalties in any case

  15. Defense of Marriage Act

  16. Section 66 relief from spousal liability in community property states. Jurisdictional issues and challenges to the interpretation and formulation of the factors provided in guidance for equitable relief under section 66(c). Cases solely involving the analysis of the facts of the case under the section 66(c) factors do not require Associate Office review

  17. Section 6015 — Dispositive motions (e.g., motion for summary judgment, motion to dismiss for lack of jurisdiction or for mootness); the effect on the allocation of a deficiency due to the tax benefits rule of section 6015(d)(3)(B); res judicata and meaningful participation under section 6015(g)(2); jurisdictional issues under section 6015(e); claims solely for relief from unpaid interest or penalties; and challenges to the interpretation and formulation of the factors provided in guidance under section 6015(f). Cases solely involving the analysis of the facts of the case under the section 6015(f) factors do not require Associate Office review

  18. Section 6109 — the issuance or use of individual taxpayer identification numbers (ITINs); objections to the use of a dependent’s Social Security Number or Taxpayer Identification Number to claim a dependency exemption

  19. Sections 6221 through 6234 TEFRA partnership/S corporation procedural issues, unless the issue is routine application of those provisions

  20. Section 6330 and 6320 Collection Due Process — briefs, motions, and other Tax Court documents (including motions for summary judgment) raising novel or significant issues. Issues that are considered novel or significant include (but are not limited to):
     — Challenges to the admission of evidence based on the administrative record rule;
     — Whether the following issues are "liability issues" for purposes of determining standard of review and liability preclusion: challenges to the validity of an assessment, whether assessment or collection occurred within the applicable period of limitations, or whether payments or credits were properly applied;
     — TEFRA partnership issues;
     — Issues involving whether the Tax Court has general equitable authority to order the Service to take or refrain from taking certain collection actions;
     — Issues involving whether a Notice of Determination was issued in violation of the automatic stay;
     — Issues involving whether the Tax Court has jurisdiction over a petition from a denial of a hearing under section 6330(g); and
     — Arguments regarding proper appellate venue.

  21. Section 6332(d)(2) — penalty for failure to honor levy

  22. Sections 6601, 6611, and 6621(d) involving issues of restricted interest or global netting

  23. Section 6673(a)(2) — penalty against counsel for unreasonable and vexatious multiplication of proceedings in Tax Court

  24. Section 6721(e) and 6722(c) — penalties for intentional disregard of information reporting requirements

  25. Section 7121— closing agreements that will include taxpayer’s consent to public disclosure

  26. Section 7430 — responses or briefs filed in opposition to taxpayers’ motions for attorneys’ fees under section 7430. For the requirements of such documents, see CCDM 35.10.1.1.1, Motions for Attorneys’ Fees and Costs; for the rules regarding approval of settlements of section 7430 claims, see CCDM 35.10.1.1.2, Settlement Authority.

  27. Section 7433(e) — civil damages for unauthorized collection

  28. Section 7435 — civil damages for unauthorized enticement of information disclosure

  29. Section 7502 limited to cases where the taxpayer argues timely mailing is timely filing based on Wood or Anderson;

  30. Section 7522 limited to arguments regarding the application of Shea v. Commissioner

  31. Section 7602 — limited to designated summonses, John Doe summonses, promoter summonses, summonses for audit or tax accrual workpapers, or where the Right to Financial Privacy Act or Health Insurance Portability and Accountability Act has been argued in a suit to enforce or quash summons

  32. Section 7623 whistleblower claims except coordination is not required for routine whistleblower privilege reviews

  33. Section 7805(b) retroactive relief from the effect of a ruling or regulation

Tax Exempt and Government Entities

  1. Employee independent contractor issues under section 530 of the Revenue Act of 1978 not involving section 7436

  2. Taxpayers who are federal, state or local governments including Indian Tribal Governments

  3. 45R — employee health insurance expenses of small employer

  4. Sections 401 through 418 — the qualification of or deductions for employee benefit plans

  5. Section 501(r) — additional requirements for certain hospitals

  6. Section 3402(q) where the definition of wagering transaction is in dispute

  7. Section 3401(d)(1) — definition of "employer" for employment tax purposes where the person for whom the individual performs or performed services does not have control of the payments of the wages for such services

  8. Section 3504 — acts to be performed by agents

  9. Section 4958 — excess benefit transaction issues

  10. Section 4971— pension underfunding taxes in bankruptcy cases

  11. Section 4980H — shared responsibility for employers regarding health coverage

  12. Section 5000A requirement to maintain minimum essential coverage

  13. Section 6056 — certain employers required to report on health insurance coverage

III. Specific Tax Court Documents Requiring Review

A Tax Court document may be directly filed with the Tax Court unless:

  1. The document raises an issue or Code section identified in this Exhibit as an issue or Code section requiring Associate office review; or

  2. The document is a Motion to Take Deposition of a Party or a Motion to Compel Deposition.


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