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Part 33. Legal Advice

Chapter 1. Legal Advice

Section 2. Chief Counsel’s Legal Advice Program

33.1.2  Chief Counsel’s Legal Advice Program

33.1.2.1  (08-11-2004)
Informal Advice

  1. Any attorney providing informal assistance, whether by telephone or email, should summarize the substance of the advice as appropriate and have it reviewed and approved by a manager. Any recordation of informal advice should be very short and contain only a brief description of the facts, if necessary, issue, and conclusion. Little or no legal analysis is to be included. Any error found upon review should be corrected promptly. The mistaken advice should be quickly withdrawn, and a record made of the amended advice. The Informal Field Assistance (Telephone Call) form, which can be found on CC Macros, should be used to memorialize the advice given by telephone. To simplify this process and assist the manager in reviewing the advice, it may be helpful to attach relevant email traffic.

  2. All telephone calls and email messages requesting advice should be acknowledged and responded to within one business day. Final advice may follow in accordance with agreed timeframes and consistent with the business rules.

  3. Each Associate and Division Counsel should establish procedures for maintaining copies of the advice given which will allow for retrieval of the advice. In addition, copies of informal advice provided by the Associate offices to field counsel should be accumulated and sent to the Technical Services Support Branch of the Legal Processing Division, Office of the Associate Chief Counsel (Procedure & Administration) on a weekly basis to be forwarded monthly to the appropriate Division Counsel office for review.

33.1.2.2  (08-11-2004)
Formal Legal Advice

  1. The following section discusses the procedures governing formal written legal advice given by Field Counsel and the Associate offices.

33.1.2.2.1  (08-11-2004)
Legal Advice by Field Counsel

  1. Although relatively routine and simple questions may be addressed orally or by email, legal advice should generally be provided by memorandum.

  2. When a written opinion is provided, a copy should be retained for association with any related matter, subsequently proposed deficiency notice, or docketed case.

  3. A memorandum providing legal advice should be tailored to the needs of the recipient and the question posed. Legal advice prepared by Field Counsel should follow the format contained at CCDM 33.1.2.2.3.3 Preparation of Legal Advice may be followed as appropriate.

  4. Additional matters that should be considered in providing legal advice are contained in a Question and Answer format in Exhibit 33.1.2-1.

33.1.2.2.2  (08-11-2004)
Coordination of Legal Advice with Associate Chief Counsel

  1. When Field Counsel identifies an issue or matter that must be coordinated with an Associate office in the process of developing a case for litigation or in rendering legal advice to the Service, coordination should occur as early as practicable and should continue, as appropriate, through case development, litigation, and resolution.

  2. Field Counsel may contact the Associate office initially either by telephone or email. The Chief Counsel Code and Subject Matter Directory listing attorney or branch contacts in the Associate Chief Counsel offices may be used as a starting point to determine who to contact. See CCDM 33.1.2.2.3 General Procedures for Legal Advice from Associate Chief Counsel. As part of the process, Field Counsel may provide documents to the Associate office attorneys to assist in understanding the facts, the transaction, or the issues, and the Associate office attorneys may request additional information as needed to determine how to handle the request. Such contacts will also clarify the nature and urgency of the advice being requested. Any informal advice given should be memorialized as described in CCDM 33.1.2.1 Informal Advice.

  3. Counsel should strive to deliver the most appropriate advice in a given situation. During their informal contact, Field Counsel and the Associate office attorney or advisor should discuss whether Field Counsel will need to draft written advice or whether Field Counsel will need written advice from the Associate office. Field Counsel and the Associate office may also discuss whether a presubmission conference would be appropriate, the form that any legal advice should take, and whether the taxpayer should be involved in the process. When a written response is appropriate, it may be:

    1. Unreviewed written advice from Field Counsel to the client;

    2. Written advice from Field Counsel submitted for pre-review by the Associate office under the procedures in CCDM 33.1.2.3, Legal Advice Prepared in the Field and Reviewed by an Associate Office;

    3. Legal advice from the Associate office to Field Counsel;

    4. A Technical Advice Memorandum prepared under Rev. Proc. 2004-02, or its successor; or

    5. Some combination of the above. In some cases, it may be decided that the issue would be best be addressed in published guidance or that a published guidance project should be opened on an issue raised by a request for legal advice in addition to responding to the request.

  4. If the Associate office attorney, Field Counsel and their reviewers, as appropriate, agree that written advice is needed, Field Counsel shall submit a memorandum setting forth the issues upon which advice is being sought, together with a discussion of the facts, law, and conclusions or course of action proposed by Field Counsel. In general, requests should include the following information:

    1. The name and docket number of the case on the subject line, if the advice is being requested with respect to a matter in litigation;

    2. The Uniform Issue List number for each issue;

    3. Whether the advice request relates to either a Technical Advisors Program issue, a Coordinated Industry Case (CIC), or an issue involving at least $10,000,000 in tax, penalties, or interest. Requests in TEFRA cases should indicate whether or not they impact partner level adjustments totaling at least $10,000,000;

    4. Whether it concerns legal advice to the Taxpayer Advocate Service or whether it concerns legal advice to Service Campuses;

    5. The proposed positions of Field Counsel, IRS Field employees, Appeals, and the taxpayer, as well as the basis for such positions.

    6. The expiration date of the statute of limitations for issuing the notice, if the case is a pre-90-day case;

    7. Whether the request requires an expedited response.

    8. The current posture of the case, if the case is docketed.

  5. Where the written advice will be processed for release to the public, taxpayer-specific requests for advice must also include at the time they are submitted:

    1. The taxpayer’s full name.

    2. The taxpayer’s last known mailing address.

    3. The taxpayer’s taxpayer identification number (TIN).

    4. If a taxpayer has a representative who has a power of attorney to represent the taxpayer in the matter that is the subject of the request, the name and address of the representative and a copy of the power of attorney.

    5. Any information in the request, or other background file documents submitted with the request that the Field office believes should not be made available for public inspection. If the Field office recommends that information in the background file documents should be deleted, the request for advice must include the basis for the recommendations. See CCDM 37.1.1 Written Determinations Under Section 6110.

  6. These procedures also apply to declaratory judgment cases. In these cases, the attorney should recognize the need for advice at the earliest possible time if such procedures are to be effective. It is theoretically possible for a declaratory judgment case to be submitted within four months of the date of issuance of the determination letter, assuming the petitioner files an early petition and reply. In view of that possibility, the submission of a prepetition advice request is encouraged, even though a response cannot be anticipated before the determination letter must be issued.

  7. Advice that implicates the issues or matters within the subject matter of another Associate office should be coordinated with those offices as early in the advice process as possible. The coordination and reconciliation procedures are discussed in full in CCDM 31.1.4, Coordination and Reconciliation of Disputes.

33.1.2.2.2.1  (08-11-2004)
Presubmission Conferences

  1. Depending on the significance, novelty, and complexity of the proposed request, the Associate office may choose to have a more formal presubmission conference. A formal presubmission conference would include any attorneys and managers of the organizations that either have subject matter jurisdiction over the issues involved in the matter or have an interest in resolution of the matter. Field Counsel or the Associate office may invite Service representatives to participate in the conference if this would assist in defining the issues upon which advice is needed. Presubmission conferences should not be held in taxpayer specific cases with Service representatives unless Field Counsel participates or declines to participate.

  2. Formal presubmission procedures are required in connection with Technical Advice as set out in Revenue Procedure 2004-2 or its successors. Presubmission conferences are encouraged for other forms of legal advice.

33.1.2.2.3  (08-11-2004)
General Procedures for Legal Advice from Associate Chief Counsel

  1. Requests for legal advice from either Field Counsel or components of the Service should be addressed to the Associate office that has subject matter jurisdiction over the primary issue in the case.

  2. Requests for written legal advice from Associate offices, other than the Division Counsel/Associate Chief Counsel (CT) and the Associate Chief Counsel (GLS), should be submitted to the Associate offices through the Technical Services Support Branch, Associate Chief Counsel (P&A). Requests should be submitted by email using normal sensitivity and addressed to TSS4510. The email should include the names of any Associate office attorneys or reviewers with whom the request had been informally coordinated. It should also include the case number. Supporting documents should be sent by email or express mail to the Technical Services Support Branch, CC:PA:LPD:TSS, Room 5329, 1111 Constitution Avenue, NW, Washington, D.C. 20224.

  3. The Technical Services Support Branch will send an email acknowledging the receipt of a request for Associate office assistance to the Field office that requested the assistance. The email will identify the Associate office to which the case is assigned and provide the Field office with the name of that Associate office’s contact person. A copy of this email will be sent to the Associate office’s contact person. If an Associate office does not receive an assignment within one business day from the date of the email, the Associate office should contact the Technical Services Support Branch to determine if the case file has been misdirected or misplaced.

  4. The Technical Services Support Branch will send a copy of any request for advice relating to Service Campuses when appropriate to W&I Division Counsel, the Customer Accounts Manager (SBSE), and the SBSE and W&I analysts responsible for Service Campus operations with a request for such additional information or comment as these offices might wish to provide.

  5. Upon receipt of a case, the Associate attorney should contact the attorney assigned in Field Counsel to inform them of their assignment to the case and to solicit the Field’s participation in the development of the Associate office’s response or review. Any requests for expedited treatment should be discussed, and, if an expedited response is necessary, a time for response should be established. Disputes regarding expedited responses should be promptly elevated and reconciled.

  6. The Associate office assigned primary responsibility for preparing legal advice is responsible for coordinating the request for advice with the other Associate offices as needed. This coordination should occur shortly after the initial case assignment. The procedures governing coordination and reconciliation are discussed more fully in CCDM 31.1.4.2.3, Coordination among Associate Chief Counsel and CCDM 31.1.4.2, Coordination within the Office of Chief Counsel.

  7. The attorney assigned primary responsibility for preparing written legal advice should communicate with the requesting office when a tentative conclusion has been reached. Such communication enables the requesting office to raise informal concerns to the proposed advice product and to call attention to facts or arguments that may not have previously been raised, developed, or disclosed. Any Counsel office that receives advice or assistance must follow the advice or implement the assistance, unless the receiving office requests reconsideration of the advice or assistance and the advice or assistance is changed through the reconciliation procedure. Early communication is, thus, essential to a meaningful dialogue in the reconciliation process.

  8. Requests for legal advice on issues arising under the jurisdiction of the Division Counsel/Associate Chief Counsel (CT) should be addressed to that office or the appropriate Area Counsel. Requests for legal advice on issues arising under the jurisdiction of the Associate Chief Counsel (GLS) should be directed to that office or the appropriate Area Counsel.

33.1.2.2.3.1  (08-11-2004)
Form of Legal Advice Provided by Associate Offices to Field Offices

  1. The form of legal advice should be tailored to the question asked, the type of response anticipated, and the need of the office to set out a full, comprehensive analysis of an issue or a case. It is generally, however, not an efficient use of Counsel’s resources to craft lengthy memoranda that set out extensive discussions of the facts where the facts are not subject to any real ambiguity or dispute or merely restate undisputed facts contained in other documents. Nor should memoranda contain extensive discussions of the law where the issue is narrow, there is no need to set out such an analysis of the law, or where there is no concern that a related question or issue should be explored. If there is confusion regarding the state of the law on an issue, then it may be appropriate to write a memorandum that contains extensive legal analysis without any need to apply the law to the specific facts of a case. Such a memorandum might not require any discussion of the litigating hazards. Advice may address strategy or case development without an extensive recital of the applicable statutes and regulations. In some instances, it may be necessary to include both strategic advice and legal background discussion if both are necessary to convey the appropriate resolution of the case.

  2. Exhibit 33.1.2-1 contains a series of questions and answers addressing additional issues about requesting legal advice from Associate offices.

33.1.2.2.3.2  (08-11-2004)
Technical Advice vs. Legal Advice in Nondocketed Cases

  1. The choice between whether to request Technical Advice or some other form of legal advice depends on whether the advice is intended to establish the position of the Service in a specific case and whether the taxpayer can participate in the advice request process. If the above types of conditions apply, technical advice must be requested and will result in the issuance of a Technical Advice Memorandum or Technical Expedited Advice Memorandum. Questions about whether Technical Advice is appropriate are further addressed in CCDM 33.2, Technical Advice and Technical Expedited Advice. Generally, all other forms of advice constitute legal advice. Legal advice may be issued to the Field, to a program manager, or to a Division or Division Counsel. It may be issued in either docketed or nondocketed cases and may cover legal issues, tactics, and strategy related to a case or program. Legal advice may also respond to the type of coordination needed with the Associate offices in pursuing the issue, the advisability of identifying test cases with particular fact patterns, or the strategies that might be considered to resolve the issue without litigation.

  2. Legal advice does not preclude a request for technical advice in the same case. Depending on the circumstances, the requests for different types of advice may be made at different stages of the case development or at the same time with respect to different types of issues. For example, some form of legal advice might be needed at a preliminary stage in order to decide what lines of factual development should be pursued, and technical advice might then be requested at a later stage to determine final Service position based on the facts that have been developed. In some cases, technical advice might be requested in order to establish Service position based on the facts that have been developed with respect to certain legal issues while some other form of legal advice might at the same time be provided to assist with tactical or strategic case-development issues.

  3. Chief Counsel advice is a term used to describe a certain subset of legal advice that is required to be released to the public under IRC § 6110. Not all legal advice is subject to this public disclosure requirement. For a more complete discussion of what constitutes Chief Counsel Advice, see CCDM 33.1.3.1.1 Definition of Chief Counsel Advice.

33.1.2.2.3.3  (08-11-2004)
Preparation of Legal Advice

  1. Legal advice may contain the following elements when appropriate to the content of the legal advice being rendered:

    1. Written legal advice should contain a caption/information identifying the case. The caption and identifying references will include the CASE number, office symbols of the office drafting the advice, the appropriate UILs, the name of the case, the title of the person to whom the advice is directed, the title of the person signing the advice. The subject line of a taxpayer specific written legal advice should reflect the primary issue in the case, rather than the name of the taxpayer. Note: If the names of the person assigned to case, the person to whom the advice is sent, and the person signing the advice are included in the memorandum, they may not be redacted when the advice is processed for release. See CCDM 33.1.3.2 Redacting Legal Advice Prior to Public Release.

    2. The opening paragraph of advice that will be processed for release as Chief Counsel Advice should state: "This Chief Counsel Advice responds to your memorandum dated [insert date]. In accordance with IRC § 6110(k)(3), this Chief Counsel Advice should not be cited as precedent." It may then briefly set forth the nature of the case (for example, submission of a proposed revenue ruling for concurrence or comment). That the office has previously rendered legal advice on the case may be mentioned.

    3. Taxpayer-specific advice should include a legend for identifying the references to taxpayer information in the advice.

    4. Issue headings should be used as appropriate. If there is more than one issue, each issue is stated in a separate paragraph, and each paragraph is numbered. State the issues in clear, precise language. Whenever appropriate, state any additional issues that have been identified but were not specifically raised in the incoming correspondence.

    5. A conclusion heading should be used if an issue heading is appropriate. There should be a specific statement of the conclusion reached with respect to each issue. This conclusion must be written to leave no doubt as to its meaning and to make it clear it is based solely on the facts presented.

    6. The statement of facts should contain those facts necessary to understand the analysis of the issues. The facts should be set out concisely, but without sacrificing clarity. Generic facts may be used if they do not sacrifice clarity.

    7. A law and analysis heading should normally be used. The analysis portion of the advice sets forth clearly and concisely the pertinent law, regulations, published rulings of the Service, and case law or other precedent and the rationale to bridge between the issue, law, and conclusion.

    8. A Case Development, Hazards, and Other Considerations heading should be used when the document will be processed for release as Chief Counsel Advice. This part of the advice should include a discussion of audit techniques, case development, legal precedent or other factual or tactical considerations that may pose litigation hazards. Depending on the circumstances, all or part of the information in this section may be exempt from disclosure. For further information on redacting litigation hazards, see CCDM 33.1.3.2.2 Permissive Deletions of Privileged Material.

    9. The law and analysis section (or the case development section, if any) may be followed by a summary in a complex case. The summary may be used to restate the facts and the law, to reiterate the conclusions reached on each issue, and to set forth recommended action.

    10. Except as noted below, the following disclosure statement must be used on all formal, written advice.

    "This writing may contain privileged information. Any unauthorized disclosure of this writing may have an adverse effect on privileges, such as the attorney client privilege. If disclosure becomes necessary, please contact this office for our views."

    Note:

    The disclosure statement is not required where (1) the advice will be released to the public in its entirety with no redactions or (2) the only redactions are taxpayer identifiers. For a discussion of redacting legal advice that is processed as Chief Counsel Advice, see CCDM 33.1.3.2, Redacting Legal Advice Prior to Public Release.

  2. The CC macros should be used to ensure the format of the memorandum is correct. Headings normally introduce the statement of the issue or issues, the conclusion or conclusions, the statement of facts, the analysis, and the summary. Headings need not be used if the advice is four pages or less. The format is shown in Exhibit 33.1.2-2.

  3. The citation forms in the current edition of The Bluebook: A Uniform System of Citation should be used in legal memoranda.

  4. In preparing memoranda providing legal advice, attorneys and managers should consider the character of the advice being given. A memorandum that consists entirely of case development and strategic advice that would be subject to the attorney client or law enforcement privilege, or that is given with respect to a docketed case or in anticipation of litigation, will have little, if any, material that will be subject to public disclosure under IRC § 6110. Such memoranda may be prepared without legends and other tools that facilitate redaction. A memorandum that contains a background discussion of the law or a description of the facts will likely have significant portions disclosed. In such cases, the memorandum should be prepared using the redaction tools.

  5. When legal advice has been coordinated with other Associate offices or branches within an Associate office, the response received from those offices must not be attached to the memorandum that is provided to Field Counsel or other IRS field employee. Rather, the office responsible for preparing written legal advice should integrate the analysis, as appropriate, into the memorandum.

  6. Requests for legal advice from Field Counsel must be answered in the time periods established in the business rules or by management. The advice is considered issued when it has been signed, dated, and faxed to the requesting office soliciting the requesting office’s views regarding proposed redactions. See CCDM 33.1.3.2.3 Coordinating Proposed Redactions with Field Counsel. If the legal advice is Chief Counsel advice, the issuing office is responsible for sending the original, dated and signed Chief Counsel advice to the requesting office. After the redaction process has been completed, and the publication copy of the Chief Counsel advice has been returned to the responsible attorney, the attorney should close the case file under the appropriate Associate office closing procedures. The date the advice was issued should be used as the closing date in TECHMIS. See CCDM 30.9 File Management.

33.1.2.2.3.4  (08-11-2004)
Additional Considerations Governing Preparation of Chief Counsel Advice

  1. As with legal advice in general, Chief Counsel advice does not set out official rulings or positions of the Service and may not be attached or referred to in other advisory products or subsequent Chief Counsel advice as precedent. These documents may be reviewed as part of an attorney’s legal research, and the subsequent legal advice should integrate any relevant analysis into the Chief Counsel advice when the documents address the same or similar issues. Thus, legal advice should not cite to prior Chief Counsel advice as authority for the conclusions or recommendations contained in the advice, nor should the previously issued document be attached.

  2. Drafts of the factual portions of Chief Counsel advice may be shared with the requesting office to ensure that the facts are accurate and complete. Generally, drafts of the legal analysis should not be shared. It is expected, however, that discussions will occur between the requesting office and the issuing office regarding the proposed legal analysis before the Chief Counsel advice is drafted and issued. Occasionally, a team of experts, which would include the Associate office and Field Counsel, will work jointly on the drafting of the Chief Counsel advice. In such situations, complete drafts may be shared among all the participating attorneys. Once complete drafts are shared, the request for the advice may not be withdrawn. Rather, the Chief Counsel advice will be completed and issued.

33.1.2.2.3.5  (08-11-2004)
Reliance on Legal Advice in Developing the Case in Which the Advice is Issued

  1. Although legal advice is not an official ruling or position of the Service, Field Counsel or Service employees, including Appeals officers, may use, as appropriate, the advice in the development, settlement, or other resolution of the case in which the advice was issued. Field Counsel or the Service employee should review the advice and integrate its legal analysis into their development of the issue in the case. The advice should not, however, be attached to, incorporated by reference into, or cited in the work product of the field work product.

33.1.2.2.3.6  (08-11-2004)
Reconsideration of Legal Advice

  1. It is not appropriate to withdraw or revoke legal advice once it is issued. Thus, following further reflection, the receipt of additional information, or new case law, new advice should be issued. The new advice should provide an analysis of the case based on the facts and law at the time the advice is reconsidered.

33.1.2.2.4  (08-11-2004)
Legal Advice to Program Managers

  1. Requests for legal advice by program managers in the operating divisions will generally be handled by the appropriate Division Counsel. To the extent these requests involve matters where the law is unclear or Service position is not established, Division Counsel must coordinate with the appropriate Associate offices.

  2. Where a request for legal advice principally concerns the interpretation of the Code, a recently enacted Code section, or the application of published guidance to a program, program managers may seek advice directly from the appropriate Associate office.

  3. Associate office legal advice to program managers in the operating divisions should be in the format outlined in CCDM 33.1.2.2.3.3 Preparation of Legal Advice. Such advice should in general be coordinated with the appropriate Division Counsel.

33.1.2.3  (08-11-2004)
Legal Advice Prepared in the Field and Reviewed by an Associate Office

  1. This section provides instructions for processing for public inspection legal advice prepared by the field and reviewed in the Associate offices. These procedures are for memoranda reviewed prior to issuance, although in unusual circumstances memoranda may be sent for review after issuance.

33.1.2.3.1  (08-11-2004)
Format for Advice

  1. After the advice is reviewed by an Associate office and issued by the Field, it will be made available for public inspection after appropriate deletions are made. To make the redaction and disclosure of these memoranda to the public easier, the same format used to prepare Chief Counsel advice may be used for this advice. See CCDM 33.1.2.2.3.3 Preparation of Legal Advice. The legal advice memorandum macro is available to facilitate the preparation of these memoranda using this format.

  2. The name and signature of the person signing the advice, and any contact person named in the memorandum, generally will not be deleted from the document that is made available for public inspection unless it would establish the identity of the taxpayer.

33.1.2.3.2  (08-11-2004)
Procedures for Requesting Associate Office Review

  1. Requests for Associate office review of legal advice prepared in the Field are to be submitted as an attachment to an email message, using normal sensitivity, to the TSS4510 mailbox. Also, any background material needed by the Associate office to review the advice that is not in electronic format should be sent by express mail to the Technical Services Support Branch, Office of the Chief Counsel, Internal Revenue Service, CC:PA:LPD:TSS, Room 5329, 1111 Constitution Avenue, N.W., Washington, D.C. 20224. The assigned attorney in Field Counsel should send copies of the request for Associate office review through their own reviewers consistent with Division Counsel procedures. The Associate office will review the advice and complete the documentation described below in 15 calendar days. The time period for the Associate office to respond may be extended after consultation with the Field, for a time period not to exceed an additional 14 calendar days. Once review is completed, the Associate office attorney shall prepare a Response Form reflecting its consideration. See Exhibit 33.1.1-1.

  2. Depending on the nature of the response the following process will be followed:

    1. Agreed: If the Associate office attorney agrees with the Field Counsel’s memorandum, the Associate office attorney responsible for the review will orally inform the Field attorney that the advice has been approved and may be signed, dated, and issued to the Service field office. The Associate office attorney also will prepare and send by email a Response Form to reflect the concurrence.

    2. Modified: If the Associate office attorney disagrees with the advice and believes that the advice should be modified, the Associate office attorney will orally communicate the recommended modifications to the assigned attorney in Field Counsel, prepare the Response Form, and email them the form. If Field Counsel agrees with the modification, the advice will be revised by the assigned attorney in Field Counsel, signed, dated, and issued to the Service field office. If the Associate office attorney disagrees with the advice and believes it cannot be modified (i.e., the advice should not be issued), the Associate office attorney will orally inform Field Counsel that the request for Associate office review should be withdrawn and Field Counsel should not issue the advice to the Service field office. If Field Counsel does not agree with the Associate office attorney’s recommendation, the disagreement must be reconciled pursuant to established procedures.

    3. Converted: If the Associate office attorney believes the advice submitted would be more appropriate if issued as legal advice or as published guidance, the Associate office attorney will orally notify Field Counsel and discuss the appropriate form for the advice. If the decision is to continue the review of the field advice and issue additional legal advice or a form of published guidance, the procedures in A or B above will be followed with respect to the field advice. Note that the procedures in B may be appropriate if it is anticipated that the published guidance cannot be issued in time to resolve the matter addressed in the memorandum. If the decision is that field advice should not be issued and that another form of advice or published guidance is more appropriate, the Associate office attorney will memorialize that decision in a Response Form, email the form to the assigned attorney in Field Counsel, and copy TSS 4510 on that email.

  3. TSS 4510 will close the existing assignment and open a new assignment with the correct category if the decision is made to issue legal advice. If the decision is made to issue published guidance, the Associate office will open an appropriate case.

  4. Field Counsel will contact the Service field office requesting the advice and advise them of the decision. If supplemental information is needed by the Associate office attorney, the request for information from Field Counsel should be made as soon as practicable.

  5. Field advice reviewed under these procedures will be made available to the public pursuant to procedures set out in CCDM 33.1.2.5 Processing Legal Advice for Public Inspection.

33.1.2.4  (11-07-2007)
Advice to Taxpayer Advocate Service

  1. These procedures set forth guidelines for providing legal advice to the Taxpayer Advocate Service (TAS) that apply to all Field Counsel and Associate offices. Additionally, Associate offices must provide comments on TAS legislative proposals and other matters through the Special Counsel to the National Taxpayer Advocate (CNTA).

33.1.2.4.1  (11-07-2007)
Legal Advice Requests from TAS

  1. TAS’s procedures for requesting legal advice are found in IRM 13.1.10, Special Processes ( http://publish.no.irs.gov/getpdf.cgi?catnum=30661).

33.1.2.4.2  (11-07-2007)
Responsibility within Counsel for Providing Legal Advice

  1. Chief Counsel is responsible for providing legal advice and support to TAS for the fulfillment of its mission, whether the support relates to the casework or the systemic advocacy function. In many cases, TAS often needs expedited legal advice regarding the applicable law, the rights of the taxpayer, and the responsibilities of the Service. TAS may also request advice about what assistance, if any, TAS legally may provide in a given situation. In cases involving advocacy issues, TAS may request guidance in understanding existing law and procedure or require advice regarding the legal and policy implications of alternatives TAS may propose.

  2. Generally, the attorneys assigned to Division Counsel (SBSE) will provide legal support or advice to TAS. In every Field office, there is an SBSE manager or senior attorney designated as the point of contact for providing advice to TAS. The list of SBSE contacts can be found on the CNTA website. The local SBSE contact will be responsible for providing advice for all legal issues that relate either to SBSE or Wage & Investment (WI), formulating and referring matters for coordination with the Associate offices, and coordinating legal services with other offices. When TAS employees raise Large and Mid-Size Business (LMSB) or Tax Exempt and Government Entities (TEGE) issues, the SBSE contact must coordinate the response with the respective Area Counsel for LMSB or TEGE or refer the case for assignment through the Area Counsel for LMSB or TEGE.

  3. Advice on issues involving personnel, labor, and procurement should be requested from General Legal Services. Similarly, advice on criminal tax matters should be requested from Criminal Tax. The lists of local GLS and CT contacts can be found on the CNTA website.

  4. The Office of the Special Counsel to the National Taxpayer Advocate also provides legal advice to TAS. When issues under the jurisdiction of the Special Counsel to the National Taxpayer Advocate are referred to the SBSE contact, the request must be handled pursuant to the provisions in CCDM 33.1.2.4.3.1, Coordination of TAS Advice with CNTA or Associate Offices. The following issues are under the exclusive jurisdiction of the Special Counsel to the National Taxpayer Advocate:

    1. Section 7803(c), including the Local Taxpayer Advocate’s discretion not to disclose information to the IRS under IRC § 7803(c)(4)(A)(iv)

    2. Section 7811

    3. Taxpayer Advocate Directives

    4. The scope of TAS’s statutory authority or delegated authority

    5. Issues regarding TAS legislative proposals or any other matter related to the NTA’s annual reports to Congress

33.1.2.4.3  (11-07-2007)
Procedures for Providing Legal Advice to TAS

  1. In general, legal advice procedures for TAS will be the same as for other legal advice provided by Counsel. The SBSE contact will determine whether advice can be given directly or whether consultation with the Associate offices is necessary.

  2. When a taxpayer is involved in tax litigation with the Service or the United States (whether in the Tax Court, the U.S. Court of Federal Claims, a U.S. Court of Appeals, a U.S. district court, the U.S. Supreme Court, or a federal bankruptcy court), jurisdiction over the case rests with either the Office of Chief Counsel or the Department of Justice, and the litigation matter is assigned to an attorney in the appropriate office. Once a taxpayer becomes involved in this litigation, TAS employees have no jurisdiction over the issues involved in the litigation. Thus, if a TAS employee contacts a Counsel employee for assistance after litigation has commenced, the Counsel employee will remind the TAS employee that TAS does not participate in the litigation process and that the taxpayer (or the taxpayer’s representative) must be referred to the attorney assigned to the case. If the Counsel employee learns that the taxpayer is not represented in the litigation, the Counsel employee will remind the TAS employee that the taxpayer may be eligible for representation from a Low Income Taxpayer Clinic. See Publication 4134 ( http://publish.no.irs.gov/getpdf.cgi?catnum=35391) for a list of organizations that receive a low income taxpayer clinic matching grant from the IRS.

33.1.2.4.3.1  (11-07-2007)
Coordination of TAS Advice with CNTA or Associate Offices

  1. When it is not clear whether the Associate offices should be consulted about a TAS specific issue, contact the CNTA for further guidance.

  2. Advice that is given directly by SBSE, GLS, or CT Counsel to TAS should not be forwarded to the CNTA unless TAS disagrees with the advice and wishes to elevate the matter.

  3. Generally, the form, content, and coordination of TAS advice requests with the CNTA or Associate offices should follow procedures outlined in CCDM 33.1.2.2.3, General Procedures for Legal Advice from Associate Chief Counsel, as appropriate. The request should be sent to the Technical Services Support Branch as described in those procedures and should be clearly identified as a request for TAS advice. TSS will:

    1. Assign the request to the CNTA or the Associate office primarily responsible for providing the response

    2. Provide a copy of the request to the CNTA, if the CNTA is not primarily responsible for providing the response based on subject matter jurisdiction

    3. Enter the TAS aspect code in order that case assignments may be appropriately tracked

  4. The Associate office with primary responsibility for providing the legal advice will also provide a copy of the response to the CNTA.

33.1.2.4.3.2  (11-07-2007)
Time Frames for Requests for TAS Advice

  1. To prevent taxpayers from experiencing further delay in having their issue(s) resolved, it is important that the assigned attorney ascertain when a response is necessary and whether the request for assistance from TAS should be expedited. The normal timeframes established in the business rules or by management for requests for legal advice often do not apply; in general, by the time a taxpayer comes to TAS for assistance, time is of the essence. When an expeditious response is required, Counsel will make every reasonable effort to provide such assistance in a timely manner. At all times, Counsel should be keeping TAS informed as to the status of the advice.

  2. To avoid delay in getting the taxpayer’s issues resolved, determine whether the inquiry may be timely and informally answered without a written response. If the request is handled informally, the procedures at CCDM 33.1.2.1, Informal Advice, should be followed.

  3. Upon receipt of any written request for advice from TAS, or an oral request if a written response will be provided, the assigned attorney will:

    1. Promptly contact the requesting TAS office to confirm receipt and determine when a response is needed

    2. Provide written notification, whether by fax, email, or memorandum, to the requesting TAS office that includes the name and telephone number of the attorney assigned to the request and the anticipated completion date

    3. Notify the manager if the employee anticipates any delay in meeting the agreed upon date, the reasons for the delay, and the anticipated length of the delay. If the manager decides that a delay in the response is unavoidable, the manager shall promptly notify the requesting TAS office of the anticipated delay, the reasons for the delay, and the expected response date.

    Note:

    The manager must make sure that the case is opened and assigned as a nondocketed case with a TAS aspect code.

  4. If the requesting TAS office disagrees with the advice and believes that it is appropriate to obtain further review of advice provided by a local Field Counsel office, the requesting TAS employee must obtain the approval of his or her manager. Depending on the circumstances, the TAS manager may believe further review is appropriate based on the difficulty or importance of the issue or the case, or in situations where the nature of the taxpayer’s complaint or request for assistance might reasonably be perceived as raising a question about impartiality. If further review is approved by the TAS manager, the manager will forward the request through the TAS Area Director to the appropriate Area Counsel (SBSE), who will ensure the matter is appropriately reviewed. If, after the review under the direction of the Area Counsel (SBSE), the TAS Area Director believes that additional review is warranted, the Area Counsel should forward a request for review to the Division Counsel (SBSE) and simultaneously copy the CNTA. A response will be provided by the Division Counsel (SBSE) after consultation with the CNTA.

33.1.2.4.3.3  (11-07-2007)
Local Taxpayer Advocate’s Discretion Not to Disclose

  1. IRC section 7803(c)(4)(A)(iv) provides Local Taxpayer Advocates (LTAs) the discretion not to disclose to the rest of the IRS, taxpayer contact or taxpayer provided information.

33.1.2.4.3.3.1  (11-07-2007)
Scope of LTA’s Discretion

  1. The discretion not to disclose taxpayer contact or taxpayer-provided information to the IRS rests with LTAs and the supervisory levels above the LTA. TAS employees below the LTA level cannot exercise this discretion. The discretion not to disclose:

    • Applies to taxpayer contact (or representative) and to any information provided by the taxpayer (or representative)

    • Is limited to the withholding of information from the IRS

    • Does not apply to non-IRS entities such as the Department of Justice, the Treasury Inspector General for Tax Administration, the Government Accountability Office, or the United States Attorney’s Office

    • Does not except LTAs from requests submitted through FOIA or compulsory process, e.g., court orders and subpoenas

    • Provides no basis for withholding information required to be disclosed under IRC § 6110

  2. With the exception of criminal and fraudulent acts discussed below, the determination of what taxpayer provided information to withhold from the IRS and what to disclose is a determination to be made by the LTA. TAS procedures require that TAS employees provide all pertinent information to the IRS with regard to any assistance request made on the taxpayer’s behalf, not just the information beneficial to the taxpayer.

  3. IRC section 7214(a)(8) requires all Federal employees who have knowledge or information of violations of the Internal Revenue laws, to report such violations in writing to the Secretary of the Treasury. (Treas. Reg. § 301.7214-1 provides that the violation should be reported to the Commissioner). Failure to report such violations could result in termination, fines, or imprisonment. The discretion not to disclose taxpayer contact or taxpayer provided information does not extend to the reporting of criminal violations and acts of fraud against the United States under the Internal Revenue laws. The current policies and procedures of the NTA for implementing IRC § 7803(c)(4)(A)(iv) requires the reporting of criminal violations or fraud committed under the internal revenue laws consistent with IRC § 7214(a)(8).

    Note:

    For more information about the LTA’s discretion not to disclose, see IRM 13.1.5, Taxpayer Advocate Service (TAS) Confidentiality.

33.1.2.4.3.3.2  (11-07-2007)
Role of Counsel in the Section 7803(c)(4)(A)(iv) Context

  1. Chief Counsel attorneys providing advice and support to TAS regarding identified or identifiable taxpayers will not share information obtained from TAS with other divisions or functions of the IRS. Disclosure within Counsel does not constitute disclosure to the IRS within the meaning of IRC § 7803(c)(4)(A)(iv). Counsel attorneys providing assistance to TAS will refrain from disclosing to any other function within the IRS any of the information provided by TAS, including the identity of the taxpayer seeking assistance from TAS. If you do need to discuss this case with the IRS, please contact the CNTA first for guidance.

  2. Field Counsel previously providing advice to TAS regarding a particular taxpayer or tax case should not generally be assigned an advisory request on the same taxpayer from another IRS division or function, if the LTA assigned to the case has exercised the discretion not to disclose taxpayer information to the IRS. The attorney’s manager must assign another attorney who was not involved with the earlier TAS advisory.

  3. In providing advice to TAS, where applicable, Field Counsel should identify to the LTA any information establishing a criminal violation or an act of fraud against the United States and inform the LTA of the potential reporting issue under IRC § 7214(a)(8). The decision whether to report the violation or transaction under IRC § 7214(a)(8) or to extend confidentiality rests with the LTA, not Counsel. Where the LTA is following the policies and procedures established by the NTA, the obligation of Field Counsel is complete upon advising the LTA that information that would normally have to be reported under IRC § 7214(a)(8) exists or appears to exist and a subsequent response from the LTA indicating that a IRC § 7803(c)(4)(A)(iv) determination has been made in accordance with the policies and procedures established by the NTA.

  4. In any instance where it is clear to Field Counsel that the LTA has failed to adhere to the NTA’s policies and procedures regarding criminal violations or acts of fraud reportable under IRC § 7214(a)(8), the attorney will report any such violation to the CNTA and the CNTA will report the violation to the NTA for appropriate action, with a copy to the Deputy Chief Counsel (Operations).

33.1.2.5  (08-11-2004)
Advice to Internal Revenue Service Campuses

  1. This subsection contains additional procedures relating to legal advice to Internal Revenue Service Campuses. Internal Revenue Service Campus or Service Campus as used in this subsection includes the Submission Processing or Customer Service Campuses, as well as the Martinsburg and Detroit Computing Centers.

  2. Legal advice to Service Campuses is provided using the same guidelines and procedures as set forth for legal advice in general. The legal advice program for Service Campuses is, however, distinct in several ways:

    1. Local field counsel in SBSE is responsible for providing advice to Service Campuses through a visitation program described below;

    2. Field Counsel must be alert to matters that are more appropriate for Associate office attorneys to address. Additionally, field Counsel who advise these campuses should provide assistance to Associate office attorneys in implementing any legal advice provided;

    3. Attorneys rendering advice under these procedures must determine the appropriate way to deliver such advice so as to have the desired effect on Campus procedures or processes. This may involve identifying the appropriate Service analyst in order to make processing or IRM changes. Additionally, such advice may be rendered informally or may result in an IRM change as opposed to formal legal advice; and

    4. Attorneys who render advice to Service Campuses are encouraged to coordinate issues among themselves through the Service Campus Advice Network. This coordination is facilitated by Division Counsel (SBSE).

33.1.2.5.1  (08-11-2004)
Service Campus Legal Advice Procedures

  1. Except as indicated above, legal advice procedures for Service Campuses will be the same as for other legal advice provided by Counsel. Local Field Counsel will determine whether advice can be given directly or consultation with the Associate offices is necessary using the criteria in CCDM 33.1.1.2 Role of Field Counsel in Providing Legal Advice.

  2. Advice provided by the Associate offices to Service Campuses will address the interpretation or application of the internal revenue laws generally and is not intended to assist in the resolution of a specific taxpayer’s case. Informal advice and coordination are encouraged.

  3. In general, Service Campus advice

    • Is not taxpayer-specific and does not contain any other information that is protected from disclosure under the provisions of IRC § 6103

    • Does not include settlement guidelines, analyses of litigation hazards of current or proposed Service positions, or similar information

    • Does not ordinarily include investigative tolerances, prosecutorial criteria, or similar information

    • May discuss differing or inconsistent points of view on an issue, but should not attribute them to particular individuals or offices

  4. All advice provided to Service Campuses that has been coordinated with the Associate offices and related Ser