This section provides sample motions, letters, memorandums, and other documents used in Counsel’s litigation practice as described in Parts 34 through 36. These exhibits have been consolidated into a single chapter for ease of use.

The validity of a regulation, temporary regulation, revenue ruling, or revenue procedure;

A proposed Treasury regulation;

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

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

A CIC issue or one that is the subject of a coordinated issue paper; or the case involves an international issue or a tax treaty issue;

A notice case;

A change in litigation position;

An argument contrary to Chief Counsel advice issued in the case;

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;

Matters to be submitted to the Justice Department Office of Legal Counsel;

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 ; and

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

Section 29 credit claimed for synthetic fuels derived from coal;

Section 66 relief from spousal liability in community property states;

Section 74(c) - the taxability of employment achievement awards;

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;

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

Section 274, unless limited purely to substantiation;

Section 385(c);

Sections 401 through 418 - the qualification of or deductions for employee benefit plans;

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;

Sections 1311 through 1341 - mitigation and claim of right;

Section 3201(q) where the definition of wagering transaction is in dispute;

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

Section 4958 - excess benefit transaction issues;

Section 6015 - spousal liability, except where relief from liability is requested solely under section 6015(b);

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. See paragraph (16) below under Other Specific Issues Requiring Associate Office Review;

Section 6201(d) - a reasonable dispute with respect to an item of income reported on an information return;

Sections 6221 through 6234 (10). TEFRA partnership/S corporation procedural issues (certain TEFRA procedural motions may be filed directly);

Section 6330 and 6320 Collection Due Process - briefs, motions, and other Tax Court documents (including motions for summary judgment) raising novel or significant issues, stipulated decision documents not involving full concession by petitioner, and proposed joint motions to dismiss (Wagner motions);

Section 6332(d)(2) - penalty for failure to honor levy;

Section 6334(e) - the approval of the seizure of a principal residence;

Section 6404(c) - reversal of abatements based on bankruptcy discharges;

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

Section 6651(f) - the fraudulent failure to file penalty;

Section 6673(a)(2) - penalty against counsel for unreasonable and vexatious multiplication of proceedings in Tax Court;

Section 6721(e) and 6722(c) - penalties for intentional disregard of information reporting requirements;

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 for the rules regarding approval of settlements of section 7430 claims, see CCDM 35.10.1.1.2;

Section 7433(e) - only those involving requests for damages for violation of automatic stay or discharge injunction;

Section 7435 - civil damages for unauthorized enticement of information disclosure;

Section 7436 which provides for Tax Court jurisdiction over worker classification issues and whether the relief provided under section 530 of the Revenue Act of 1978 should apply to employers;

Section 7491 burden of proof issues;

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

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

Section 7525 - the Tax Practitioner privilege;

Section 7602 - limited to summonses involving 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;

Section 7602(c) third-party contact issues; or

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

Collection issues involving disregarded entities or the collection of partnership tax liability from partners or the application of United States v. Craft -- collection of liability of one spouse from property held in tenancy by entireties;

The discharge exception under B. C. § 523(a)(1)(B)(i) where taxpayer files return after assessment and IRS partially abates liability (Hindenlang issue);

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

The ex parte rules on communications with Appeals;

General receiver appointments requested by the Government;

Injunction, mandamus, or declaratory judgment sought by the Government;

Issue or claim preclusion (estoppel or res judicata) and equitable doctrines;

Privilege logs and similar documents identifying third parties, see CC Notice 2002–028;

Sanctions officer issues including misconduct on the part of Service employees or field counsel or opposing counsel, disqualification of counsel, referrals to the Director of Practice or other ethical issues in litigation;

Statistical sampling used by taxpayers to support a refund claim;

Suppression of evidence;

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

Tort liability for attempting to defeat tax collection;

Tortious conversion of a tax lien;

Valuation issues - valuation of corporate stock with restrictive sales agreements, valuation of minority interest discounts or post-death events or valuation issues in the context of family limited partnerships; or

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."

See Exhibit 35.11.1–1 for list of issues requiring Associate Chief Counsel Office review before document may be filed with the Tax Court and direct served.

Stipulated decisions and decisions accompanying Rule 155 computations in cases in consolidated groups are to be filed on the same date using separate captions for each decision (and computation statement). If decisions and computations in such cases cannot be filed simultaneously, a motion to sever the case or cases in which the decisions are being filed from the consolidated group should accompany the decision documents.

Rule 155 computations (agreed or unagreed) should not be directly filed if a substantial question exists on which assistance is required concerning how the court’s opinion should be reflected in the computation.

Employment Tax cases: See WHETHER TO TRANSFER, COORDINATE OR SEEK TECHNICAL SUPPORT ON EMPLOYMENT TAX CASES.

Earned Income Tax Credit (EITC) and Individual Retirment Account (IRA) regular cases: Do not transfer. Call the Area Counsel (TE/GE) office to coordinate or for technical support.

EITC and IRA "S" cases: Do not transfer. There is no coordination requirement. The Area Counsel (TE/GE) office is available to provide technical support.

Exempt Organizations: Sections 501–509, 6033 EO exemptions and requirements; §§ 511–514 UBIT; §§ 527, 4911,4912,4955 political activities and lobbying; § 529 qualified state tuition plans; § 530 education IRAs; §§ 4940–4948 private foundation excise taxes; § 4958 intermediate sanctions; § 6104 EO/EP disclosure; § 7428 EO declaratory judgments; § 7611 church audits; § 277 certain coops; Chapters 95 and 96 Presidential election campaign fund

Employee Plans: Sections 401–418 qualification of employee benefit plans; funding; taxation of employer and employee contributions; taxation of distributions; § 72(p) plan loans; § 72(t) early plan distributions; §§ 219, 408 SEPs, SIMPLEs; § 457 plans for state and local governments and tax-exempt entities; § 1042 sale of stock to ESOP or certain coops; §§ 4971–4981A EP excise taxes; § 7476 EP declaratory judgments

Executive Compensation: Section 83 annuities and property transferred in connection with performance of services; § 162 million dollar cap; §§ 280G & 4999 golden parachutes; §§ 421– 424 certain stock options; § 451 nonqualified deferred compensation

Health & Welfare: Section 79 group term life insurance; §§ 104–105 (except § 104(a)(2)) compensation for injuries and sickness, accident and health plans; §125 cafeteria plans; §§ 419/419A funded welfare benefit plans; § 501(c)(9) VEBAs; § 4980B COBRA; Chapter 98 HIPAA; Chapter 99 coal industry health benefits

Tax Exempt Bonds: Sections 103 & 141–150; tax-exempt bond issues can also arise under §§ 22, 25, 265(b), 1016(a)(6), 1394, 1397E, 1400A, 7871(c); § 7478 bond declaratory judgments

Employment taxes: Section 7436 worker classification/§ 530cases. See below for whether to transfer, coordinate or seek technical support on other employment tax and fringe benefit issues (including § 132, § 119; and accountable plan issues).

Cases To Transfer To TE/GE

Call TE/GE To Coordinate

Call TE/GE If Novel Issue Or If Technical Assistance Is Needed