4.8.2  Case Processing

Manual Transmittal

June 27, 2013

Purpose

(1) This transmits revised IRM 4.8.2, Technical Services, Case Processing.

Background

This section provides an overview of case review procedures, criteria for returning cases to the area using a reviewers report, the use of Examination Records Control System (ERCS) inventory controls, statute controls, and suspense cases.

Material Changes

(1) This transmittal reissues existing procedures. Minor editorial changes have been made throughout this IRM. Website addresses, legal references, and IRM references were reviewed and updated as necessary. Other significant changes to this IRM include the following:

Reference Description of Changes
Throughout IRM Incorporated Interim Guidance SBSE 04-0412-040 dated April 25, 2012.
Throughout IRM Updated references for revised Form 13308, Criminal Investigation Closing Report (Tax and Tax Related Only) to correctly identify items to be addressed by Technical Services.
IRM 4.8.2.2.4 Updated procedures for closing related cases along with unagreed case to Appeals.
IRM 4.8.2.2.4 (1)(c) For cases shipped to EQMS, changed the overnight mail requirement to ground service and increased the number of days for the review from 5 days to 10 days.
IRM 4.8.2.6 Clarified cycle time and overage for Status Code 25 cases.
IRM 4.8.2.10.2 Clarified procedures for hobby loss cases for suspense in Technical Services.
IRM 4.8.2.10.3.2 Clarified procedures for cases coming into Technical Services for fraud and grand jury suspense.
IRM 4.8.2.10.3.4.1 Clarified Suspense Type 591/592.
IRM 4.8.2.10.3.4.3 Clarified procedures for any necessary updates to be made via Form 5348, AIMS/ERCS Update (Examination Update).
IRM 4.8.2.10.3.6.3.3 (2) Updated procedures for utilizing Public Access to Court Electronic Records (PACER) to secured needed documentation for the case file.
IRM 4.8.2.10.3.7.9 Add requirement to maintain hardcopy dummy probation file.
Exhibit 4.8.2-1 Added Review Type 11 for criminal restitution cases.
Exhibit 4.8.2-5 Included new job aid for fraud suspense for incoming cases.
Exhibit 4.8.2-6 Included new job aid for Fraud Suspense for Form 3999, Statute Expiration Report.
Exhibit 4.8.2-7 Included new job aid for fraud suspense for monitoring. Removed previous job aid detailing six month checks as procedures are incorporated in new job aid.

Effect on Other Documents

This material supersedes IRM 4.8.2, dated 03–30–2012 and incorporates Interim Guidance SBSE 04-0412-040, Revised Letter 531, Statutory Notice of Deficiency, dated April 25, 2012.

Audience

SB/SE Technical Services employees.

Effective Date

(06-27-2013)

Rodney M. Kobayashi
Director, Technical Services SE:S:E:TS
Small Business/Self-Employed Division

4.8.2.1  (06-27-2013)
Overview

  1. This section provides the basic guidelines for processing cases in Technical Services. Current information is available on the Technical Services shared drive and SharePoint.

  2. Refer to the Technical Services shared drive folders for training courses, memoranda, a listing of subject matter experts (SMEs), job aids, presentations, reviewer alerts, and other current reference tools for Technical Services employees to obtain current information and guidance.

  3. Refer to the Technical Services Sharepoint for:

    1. A directory of reviewer program assignments under the "contacts" link, and

    2. Technical Services Publications:
      - Technical Digest,
      - Fraud Digest, and
      - Keys to Success.

    3. The "Technical Guidance" link includes articles highlighting new procedures, changes in processing cases within Technical Services, and listings of procedures by programs.

4.8.2.2  (06-27-2013)
Cases Requiring Action By Technical Services

  1. Closed cases that were worked in Examination are updated to Status Code 21 by the groups and are sent directly to Technical Services if the case:

    1. Is subject to mandatory review,

    2. Has special features requiring post-examination processing,

    3. Is identified by the area for special review,

    4. Is being closed unagreed with a valid protest to Appeals, or

    5. Is a single year or multi-year examination in which any year is closed unagreed.

    Refer to IRM 4.10.8.11.9 (7), Response to Preliminary (30 Day) Letters, for guidance regarding review of the taxpayer's protest.

  2. Examination cases selected as a part of the examination quality measurement staff (EQMS) sample will be routed to the appropriate EQMS review site. Please see IRM 4.8.3, Examination Quality Measurement Staff (EQMS), for EQMS processes and EQMS reviewer guidelines.

4.8.2.2.1  (06-27-2013)
Mandatory Review Cases

  1. Mandatory review cases include:

    1. Joint committee cases (see IRM 4.36, Joint Committee Handbook)

    2. Employee return examinations (see IRM 4.2.6, Examination of Employee Returns)

    3. Jeopardy or termination cases (see IRM 4.15, Jeopardy/Termination Assessments Handbook)

  2. Refer to IRM 4.8.4, Mandatory Review, for further details on these cases.

  3. National research project (NRP) cases are not mandatory review but may meet other mandatory review criteria. See IRM 4.22, National Research Program, sections 1-4, for additional information. Normal processing procedures should be followed. Reviewers may be requested to perform in-process case reviews.

4.8.2.2.2  (06-27-2013)
Cases Requiring Post-Examination Processing

  1. The categories of special feature cases requiring post-examination processing is extensive. The "Forward to Technical Services" section of Form 3198, Special Handling Notice, contains a comprehensive listing of mandatory review and post-examination processing cases. Some examples of special handling functions typically performed in Technical Services include tax equity fiscal responsibility act (TEFRA) key case and linked investor returns, bankruptcy cases, innocent spouse cases, transferee cases, interest abatement, and statute expiration cases.

  2. Refer to IRM 4.8.5, IRM Post Examination Case Processing Requirements, and IRM 4.8.8, Miscellaneous Responsibilities, for further details on processing these cases.

4.8.2.2.3  (06-27-2013)
Area Identified Cases

  1. Areas have the discretion to designate any category of cases for special review if it is determined that such action is warranted.

4.8.2.2.4  (06-27-2013)
Multi-Year Examinations With at Least One Unagreed Year and One Agreed/No-Change Year

  1. Multi-year examination cases with different types of closures have special processing requirements within Technical Services.

  2. Where the multi-year case is not selected for EQMS sample:

    1. Close agreed/no-change year to Centralized Case Processing (CCP) for assessment.

    2. Move the agreed/no-change year on report generation software (RGS) CEAS for closure if applicable.

    3. Annotate Form 3198 on both the unagreed case and the agreed/no-change case regarding separate closure of the agreed/no-change year(s).

    4. If determination by the reviewer is that the agreed or no change year(s) are fundamental to the unagreed case and shall remain with the unagreed year(s), the reviewer will fax the paperwork to CCP to make a partial assessment for the agreed case. See http://mysbse.web.irs.gov/AboutSBSE/aboutccs/ccsprog/casepro/cp/cont/23510.aspx for current fax numbers for CCP. Once the assessment has been made, the agreed and unagreed case files should remain together and close accordingly (to Appeals or issuance of SNOD). When closing to Appeals, use AMCLS, Disposal Code 07 and enter $1 in Item 18 of Form 5344, Examination Closing Record, for the agreed/no change year only. For the unagreed year, Item 18 will contain the unagreed amount. See IRM 4.4.12.4.31, Item 18: Unagreed Amount Appealed/Petitioned, to determine the unagreed amount to enter in Item 18.

  3. Where the multi-year case is selected for EQMS with 210 days or less remaining on the statute:

    1. The case is excluded from the EQMS sample,

    2. Fax/secure e-mail/mail the selection sheets to EQMS with an explanation indicating year and statute of the year that is excluding entire case, and

    3. Follow procedures in item a) above as if not EQMS selected.

  4. Where the multi-year case is selected for EQMS with more than 210 days remaining on the statute:

    1. All agreed/no-change and unagreed years must remain together;

    2. Add the EQMS selection sheet to the case file, update ERCS to Status Code 23, Review Type 33, and route on Form 3210, Document Transmittal, via ground service mail to the EQMS site alerting them on the Form 3210, to "LIVE case Included, Return to Technical Services address after review" ;

    3. EQMS will review the case within 10 business days and return in ground service mail; and

    4. The reviewer will split agreed/no-change year(s) from the unagreed years, unless it is determined essential and follow steps in item a) above.

4.8.2.3  (06-27-2013)
Area Reviews

  1. At headquarters discretion, specialized case reviews may be completed at designated centralized review sites for the review of special projects or special cases such as:

    • Joint committee cases

    • Insurance company cases

    • Excise tax cases

    • Employment tax cases

    • Estate and gift tax cases

4.8.2.4  (06-27-2013)
Inventory Controls: Status Codes

  1. Cases are routed to Technical Services using Status Code 21, In Transit, to Technical Services and are assigned the following standardized status codes upon receipt (refer to Exhibit 4.8.2-1 for a listing of Technical Services status codes and their related review and suspense types):

    Status Code Description
    20 All returns subject to mandatory review (except joint committee cases) or special processing either awaiting or in the process of being reviewed, including closing agreements, innocent spouse cases, and offer in compromise cases. Joint committee cases are reviewed in Large Business and International (LB&I) review sites (Status Code 26).
    21 Cases are placed in Status Code 21 to forward them to Technical Services. A Technical Services code must be included when updating to Status Code 21. Once received, Technical Services will input the correct status code, review type, and suspense type codes.

    Reminder:

    Any return over 21 calendar days in Status Code 21 requires follow up actions for location and assignment.

    22 Protested cases are placed in Status Code 22 prior to closure to Appeals and are transmitted to Appeals within 10 business days of receipt.
    23 All sample selected or management identified returns awaiting review or in the process of being reviewed.
    24 All cases in which the 90 day letter (or equivalent) has been issued and is awaiting a response from taxpayers. If the taxpayer fails to respond, the case will be defaulted at 105 days (or 165 days if the taxpayer resides outside of the United States).
    25 Pre-90 Day Letter - Cases awaiting preparation or issuance of the 90 day letter. Review Type 42 is used to control cases sent to area counsel for review. All cases will be updated to Status Code 24 once the 90 day letter is issued.
    27 TEFRA and Non-TEFRA "in process" cases.
    28 Cases in which TEFRA letters or final partnership administrative adjustments (FPAAs) have been issued.
    29 TEFRA Suspense: Suspensed for action by others. The review type assigned to the project will also be used while in suspense in Technical Services.
    30 1254 Suspense is used only for cases with a Form 1254, Examination Suspense Report, in the case file.
    31 Other TEFRA Suspense. Project cases will use the review type assigned to the project while suspended in Technical Services.
    32 Fraud Suspense contains cases in which the joint investigation is complete and is awaiting settlement of the criminal aspects of the case.
    36 Grand Jury Suspense contains cases that are actively investigated by the Department of Justice (DOJ).
    38 All Other Suspense Cases such as cases awaiting technical advice from Headquarters, or cases placed in suspense by the area office.
    - ERCS Collaterals will be established for all non-audit information management system (AIMS) workload including Rev. Proc. 92-29, IRC 1033, Involuntary Conversions, conditions of probation (COP) and Taxpayer Advocate Service (TAS) cases.
    - Only one collateral record is required for each case and the record will remain open until final closure from Technical Services.
    - Status Code 38 may be used for cases that are related to cases in other status codes but do not require the same processing while in Technical Services. For example, a nontaxable non-TEFRA flow-through entity with a "GG" , Non-TEFRA Flow-Through, statute that must remain associated with a related shareholder return that is in Status Code 24 with Review Type 34 may be updated to Status Code 38, Review Type 34. Similarly, Status Code 38 with the appropriate review type (that of the related tax year(s)) may also be used on no-change years that are part of the same case file if the no-change years will remain open in Technical Services until final closure as well as conditions of probation cases that have court ordered conditions of probation requiring monitoring.
    39 Bankruptcy cases held in suspense.

  2. The use of ERCS review types and suspense types to control and monitor inventories is mandatory. The purpose of assigning ERCS review and suspense types in conjunction with status codes is to provide consistency as a means of effectively monitoring workload and serving as the basis of an accurate work plan. See Exhibit 4.8.2-1 for a table of how the status codes, review types, and suspense types interrelate. Check the Technical Services shared drive in the "memos" folder for a current listing of ERCS codes.

  3. Review Types assist in the identification of cases. All cases are assigned a review type that will not change except in special circumstances when the case is received in Technical Services.

  4. Suspense Types and the use of action dates assist in the identification of the IRM guidelines for processing returns and to ensure appropriate and timely follow-up is initiated, particularly those in suspense categories. Action dates are important to ensure timely action is taken, such as transactions posting to information data retrieval system (IDRS), and to ensure customers are provided a timely work product.

4.8.2.5  (06-27-2013)
Statute Controls

  1. Reviewers are responsible for identification and protection of the statutes of limitation on all returns assigned to them or for which they have control.

4.8.2.5.1  (06-27-2013)
Procedures

  1. Procedures for statute controls are outlined in IRM 25.6.23, Examination Process - Assessment Statute of Limitations Controls. Reviewers are also responsible for the identification of returns with early expiration dates and completion of proper procedures.

4.8.2.5.2  (06-27-2013)
Statute Control System

  1. A continuous statute control system is maintained for all returns within 210 days of the statute expiration. The Technical Services group manager is responsible for the overall supervision of statute controls. They are responsible for ensuring that all incoming receipts from whatever source are screened generally within one day of receipt to verify the statute of limitations. The Technical Services group manager is also responsible for ensuring that the statute control duties are performed by the appropriate personnel knowledgeable in maintaining accurate statute controls.

4.8.2.6  (06-27-2013)
Cycle Time

  1. Cycle time for the various stages of cases in Technical Services is represented in the chart in Exhibit 4.8.2-1.

4.8.2.6.1  (06-27-2013)
Cases Requiring Priority Handling

  1. The following cases receive priority handling:

    1. Early statute expiration cases,

    2. Agreed unpaid deficiency cases of $100,000 or more (see IRM 4.4.18, Large Dollar Cases),

    3. Unagreed cases designated for closure to Appeals, and

    4. Cases requiring completion of post-examination processing.

  2. It is critical that reviewers prioritize their statutory notice of deficiency inventory to comply with management inventory goals and the annual examination work plan. This prioritization becomes extremely critical during statute season (December 15 – April 15) when the field closes a larger volume of cases and the goals for the annual examination work plans depend upon Technical Services to issue notices of deficiency on outstanding cases on or before April 15th. Reviewers should prioritize their inventory in the following order:

    1. Early statute expiration cases where assessment statute expiration date (ASED) will expire within 60 days (see IRM 4.4.25.2.2, Quick Assessments, State of Limitations Less Than 60 Days);

    2. Special compliance projects with completion deadlines within 60 days; and

    3. All other statutory notice cases on a first-in first-out (FIFO) basis.

4.8.2.6.2  (06-27-2013)
Exceptions

  1. Time periods should be adjusted to meet the requirements of the program.

4.8.2.7  (06-27-2013)
General Case Review Procedures

  1. The function of Technical Services is to ensure the highest level of quality and fairness in examinations as SB/SE carries out its mission to protect the public interest by determining the substantially correct tax by applying the tax law with integrity and fairness. Technical Services performs case reviews to:

    1. Measure and assess SB/SE's ability to carry out this mission (using EQMS, explained in IRM 4.8.3) and

    2. Ensure technical and procedural requirements of cases with special processing requirements are correctly completed.

  2. EQMS case reviews are discussed in IRM 4.8.3. This section discusses case reviews of cases with special processing requirements and addresses the following topics:

    1. Scope of review

    2. Review standards

    3. Providing feedback to the examiners and management using Form 3990, Reviewers Report

    4. Case return procedures

    5. Suspense cases

    6. Case closing

4.8.2.7.1  (06-27-2013)
Scope of Review

  1. Reviewers will review the case in sufficient depth to ensure:

    1. Correct technical conclusions

    2. Accurate tax and penalty computations

    3. Proper completion of all procedural requirements

    4. Proper managerial involvement

    5. Proper protection of taxpayer rights

4.8.2.7.2  (06-27-2013)
Case Review Standards

  1. The quality attributes are SB/SE’s expectations for quality examinations and are guidelines to assist examiners in performing examinations. The quality attributes provide objective criteria against which case quality may be evaluated.

  2. IRM Exhibit 4.8.3–1, Quality Attributes, and Document 12354, Field Compliance Embedded Quality Job Aid, list and explain the quality attributes and should be used as a guide for case reviews and documenting conclusions.

4.8.2.7.3  (06-27-2013)
Reviewers Report (Form 3990)

  1. Communication between the Technical Services staff and the examination function regarding the review of a case is generally in the form of the reviewers report, Form 3990.

  2. The reviewers report is an official communication between Technical Services and the examination area regarding technical/procedural errors or commendatory feedback observed in cases under Technical Services review. It is also used by management to identify trends and to determine necessary corrective actions.

  3. Informal contacts with examiners (telephone call or e-mail) should be made when a defect can be perfected without returning the case to the responsible group. The informal contact will be documented in the reviewer's activity record.

  4. Mathematical, technical, managerial or procedural errors or omissions that require additional consideration or development are usually returned to the responsible group when it cannot be perfected by the reviewer.

  5. Form 3990 should clearly communicate the corrective action required, explaining in an objective understandable manner the error, or if a commendatory observation, a clear explanation describing how the examiner's actions were superior.

  6. Only an objective discussion of the deficiencies should be addressed. Avoid subjective commentary unless the conclusion reached by the examiner is not supported by the facts developed in the case file. Conclusively support observations as they relate to the quality attributes.

  7. Strive to choose words and phrases that are constructive in nature and demonstrate an interest in helping the examiner.

  8. Cases will not be returned to the group for further development unless one of the case return criteria is met. See IRM 4.8.2.8.1, Case Return Criteria, and IRM 4.8.2.8.2, Exceptions to the Case Return Criteria.

  9. Refer to Exhibit 4.8.2-2 for response time frames and status updates by the examination group.

  10. A detailed analysis of Form 3990s may be used by management:

    • To assess program performance

    • To identify system changes

    • To identify training and education needs

    • To improve work processes

4.8.2.7.4  (06-27-2013)
Reviewers Report (Form 3990) – Types of Reports and Usage

  1. Observation Report: The observation report is used to advise management of areas requiring attention or exceptionally good performance of an examiner. There are two types of observation reports based on who the report is sent to:

    1. Commendatory, Managerial, or Other: Observation reports are sent to the area field territory manager once the report is signed by the Technical Services group manager. These reports may not be combined with, substituted for, or be a supplement to, the inquiry or advisory reports.

    2. Procedural: Observation reports and the case file, if necessary, are routed directly to the field group manager. When the reviewer concurrently issues an advisory or inquiry report, the procedural inaccuracies may be cited in the same report and should be clearly labeled as procedural comments.

  2. Advisory Report: An advisory report is prepared when:

    1. It is necessary to advise the field group manager and examiner of non-compliance with the quality attributes (see IRM Exhibit 4.8.3-1), and

    2. When the reviewer has determined the case file does not need to be returned as they were able to correct the error(s), or waive the error(s) in accordance with the tolerance levels discussed in SB/SE Delegation Order (D.O.) 4.41, Error Tolerance Levels.

    When an advisory report is issued, the case file is not normally returned. The field manager enters the examiner's name in the "Referred To" block, and gives a copy to the examiner. No further action is necessary by the examiner unless there is also an inquiry.

  3. Inquiry Report: An Inquiry report is prepared when it is necessary to return the case file to the field group for further action by the examiner due to possible non-compliance with the quality attributes. Case return criteria and exceptions must be considered in determining whether to return the case to the group (IRM 4.8.2.8.1 and IRM 4.8.2.8.2).

4.8.2.8  (06-27-2013)
Returning Cases to the Field

  1. Cases may be returned to the group via Status Code 12 on ERCS for further development if any one of the case return criteria outlined below is applicable. The criteria should be applied to all cases handled by Technical Services. Exceptions to the case return criteria are also discussed in this section.

4.8.2.8.1  (06-27-2013)
Case Return Criteria

  1. The purpose of the case return criteria is to limit the number of cases returned to the group for rework. The criteria identify those cases with potential for significant impact to taxpayer compliance or tax revenues. Generally, cases will not be returned to the group for further development or correction unless one of the conditions listed below is met.

4.8.2.8.1.1  (06-27-2013)
Substantial Error

  1. There is a clearly defined substantial error based on an established Service position existing at the time of the examination. "Substantial" refers to the dollar amount of the tax that would not be assessed if the case were not returned. Any proposed change to a case involving net additional tax totaling $10,000 or more, regardless of the years involved, is normally to be regarded as substantial.

  2. Cases returned under the criteria in paragraph (1) must clearly demonstrate an error of substantial magnitude and not merely a "possible" or "potential" error. However, a case may be returned with less than absolute surety regarding the additional tax liability if it appears to be within range of $10,000.

  3. The following examples illustrate the substantial error case return criteria:

    1. EXAMPLE 1: A reviewer identified an error in the computation of unreported income using an indirect method. Using the facts presented in the case file, the reviewer computed the correct amount of income and determined that the taxpayer’s liability should be increased by $15,759. In this example the case should be returned to the field for correction.

    2. EXAMPLE 2: A reviewer identified several errors within a case file. The interview was inadequate and included contradictory statements that were never reconciled. The examiner did not address the taxpayer’s personal expenses, which appeared to be insupportable based on the cash flows reflected by the audit. A bank deposit analysis was illegible and the audit trail was practically nonexistent. The taxpayer agreed to the proposed adjustments. In this example the case would not be returned for further development. The case does not comply with all the quality attributes, but specific errors resulting in concrete adjustments have not been identified. Substantial additional tax cannot be determined.

    3. EXAMPLE 3: An area participates in the post-assessment review process. A reviewer identifies an error that will increase the taxpayer’s agreed tax liability by $12,689. In this example, procedures for reopening case files should be followed and the case returned to the field for correction.

4.8.2.8.1.2  (06-27-2013)
Fraud or Malfeasance

  1. There is evidence of fraud, malfeasance, collusion, concealment, or misrepresentation by the taxpayer or representative.

    1. EXAMPLE 1: While reviewing a case file, the reviewer realized there were inconsistencies in the taxpayer’s oral testimony which appeared to be self-serving and for which there was no documentary proof. The taxpayer was generally uncooperative and procrastinated repeatedly. The examiner did not address the badges of fraud.
      The facts, while requiring comment by the examiner, do not clearly evidence fraud potential. After all, most people make self-serving comments: Few people will make admissions against their own interest. Further, procrastination and lack of cooperation are methods to cope with an unpleasant, if not intimidating, situation and should not be overvalued. Without more concrete indicators of intentional deception or misrepresentation, this case should not be returned to the examiner.

    2. EXAMPLE 2: While reviewing a case file, a reviewer noticed that the copy of an appraisal document used to substantiate a large charitable contribution appeared to have been altered and a signature was obliterated. The examiner did not recognize the problem. Complete disallowance of the contribution would result in additional tax of $5,784.
      This case would be returned to the examiner to more fully develop the contribution issue and potential fraud.

4.8.2.8.1.3  (06-27-2013)
Serious Administrative Omissions

  1. Circumstances exist that indicate failure to return the case would be a serious administrative omission. Examples include:

    1. Actions (or inactions) that may result in serious criticism of the Service’s administration of the tax laws.

      Example:

      A revenue agent issued an unagreed report including negligence penalties when a taxpayer could not be contacted in three weeks. The taxpayer responded to the 30 day Letter, explained the reasons for his absence (it was reasonable), and requested that the audit be resumed. The agent forwarded the case file to Appeals without responding to the taxpayer’s request.


      This case should be returned to the agent for completion. The taxpayer has specifically asked that the audit be completed and there is no evidence of procrastination. The agent’s actions (or inactions) could be interpreted as capricious, arbitrary, and the addition of penalties vindictive.

    2. Actions (or inactions) that may establish a precedent that would seriously hamper subsequent attempts by the Service to take corrective action.

      Example:

      As part of an employment tax examination, the examiner reviewed payroll journals and discussed the workers duties and responsibilities with the taxpayer. He later determined that Form 1099s were filed for workers and included a two sentence description of the workers' activities. The examiner did not specifically address the three main categories of evidence. (See IRM Exhibit 4.23.5-1, Determining the Right to Direct or Control.) The brief description and the taxpayer's business activities suggested that an employee/employer relationship probably existed.


      If the workers are employees as the reviewer suspects, then failure to address this employment tax issue has created a section 530 safe haven. The case should be returned to the examiner. To avoid a prior audit safe haven under section 530, the worker classification issue MUST be discussed and properly evaluated at the time of Employment Tax examination.

      Note:

      If the examination had been an income tax examination, the failure to address the employment tax issue, while a failure for examination attributes and a mistake that enables the employer to continue to erroneously misclassify the workers, does NOT create a section 530 safe haven.

      An employment tax examination must be conducted for a specific job category and no change to the worker status made for a section 530 safe haven to be created from the examination.

      IRM 4.23.5.2.2.5, Safe Haven - Prior Audit, states
      "For examinations that began after December 31, 1996, the Service audit must have included an examination for employment tax purposes of the status of the class of workers at issue or a substantially similar class of workers."

    3. Actions (or inactions) that may result in inconsistent treatment of similarly situated taxpayers.

      Example:

      When computing a flow-through adjustment from a partnership, an examiner incorrectly classified the loss as flowing from a non-passive rather than a passive activity. A copy of the partnership audit report indicates there are three other passive partners.


      The case would be returned for correction, as the results are inconsistent with the treatment of the other partners.

4.8.2.8.1.4  (06-27-2013)
Unprocessable Cases

  1. The case is unprocessable, (e.g., case requires new agreements, AIMS establishment, etc.) Generally, if the case cannot be closed off AIMS, it is unprocessable and will be returned to the examiner for correction. However, many of these errors can be quickly corrected without formally returning the case; reviewers should not hesitate to take corrective action to solve problems expeditiously.

    Example:

    AIMS controls had not been established for a delinquent return included in the case file. The case would be returned to the examiner.

4.8.2.8.1.5  (06-27-2013)
Correction of Errors That Will Benefit the Taxpayer

  1. The correction of the error is favorable to the taxpayer. Corrections that are in the taxpayer’s favor (less tax due or larger refund) must be made. Every effort should be made to waive errors within the scope of authority. However, taxpayers should not be harmed by Service errors. If correcting an error reduces the taxpayer’s liability or increase the taxpayer’s refund, then the correction will be made without regard to the dollar amount. The case should be returned to the examiner for correction. However, if the error can be readily corrected by Technical Services, such action should be taken to close the case expeditiously.

    Example:

    The SE tab in Return Setup on RGS reflects Schedule C net income as zero vs. a negative number; therefore, the self employment (SE) tax when computed is overstated.

4.8.2.8.2  (06-27-2013)
Exceptions to the Case Return Criteria

  1. There are exceptions to the case return criteria (e.g., corrections that must be considered based on the needs of our customers).

4.8.2.8.2.1  (06-27-2013)
Unagreed Appeals Cases

  1. Unagreed cases are reviewed primarily by a tax examiner who will expedite their movement to Appeals by verifying the following items:

    1. Statute of limitations is identified correctly and has at least 180 days remaining.

    2. Form 5344 is completed correctly. See http://mysbse.web.irs.gov/exam/mis/data/25823.aspx, Form 5344 Entries - Area of Responsibility, for specific instructions for non-RGS Form 5344s.

    3. Case file contains 30 day letter, valid protest and managerial signature.

    4. Case can be updated on RGS to appropriate RGS group (SBSE cases only).

  2. Protested cases should be corrected prior to forwarding to Appeals.

    Example:

    A 30 day letter case to be forwarded to Appeals included the taxpayer’s protest. The protest was adequate and included significant information not considered during the examination. The examiner’s Report Transmittal (Form 4665) did not include any clarification or rebuttal to the taxpayer’s protest. This case should be returned to the examiner for response to the taxpayer's stated position. Appeals needs as complete a presentation of facts as possible to make a fair decision.

  3. See IRM 4.8.2.2.4 for procedures on sending agreed, no-change, and non-taxable returns to Appeals because they are related to unagreed cases being closed to Appeals.

  4. Additional information is available in IRM 4.8.8.17, Technical Services, Miscellaneous Responsibilities, Appeals/Counsel Liaison, and IRM 4.4.12.4.31.

4.8.2.8.2.2  (06-27-2013)
Statutory Notices of Deficiency

  1. Statutory notices of deficiency will be perfected before issuance. This may require returning the case to the examiner for clarification or correction of errors.

4.8.2.8.2.3  (06-27-2013)
Math Errors On Waivers

  1. There is separate authority to process cases if there is a math error on a waiver (or other agreement form). This criteria is applied independently from the case review criteria. Instructions for those cases, where correction of a math error on the waiver would result in additional tax or less refund, are outlined in SB/SE Delegation Order 4.41.

4.8.2.8.2.4  (06-27-2013)
Exceptions for Program Requirements

  1. The reviewer must give consideration to the proper completion of procedures and requirements associated with specific programs such as TEFRA, bankruptcy cases, or employee audits.

4.8.2.8.2.5  (06-27-2013)
Cost Effectiveness

  1. Judgment plays an important role in the review process. Cost benefits must be considered before cases are returned to the examiner for corrections. The presumption that it is not cost effective to return a case for further development should be applied to all cases.

4.8.2.9  (06-27-2013)
Case Return Procedures

  1. Case files should be returned to the responsible group manager.

  2. The reviewer will complete Form 3990 in accordance with instructions provided on Form 3990. The reviewer's reports should identify the following:

    1. Name of responsible group manager/territory manager

    2. Required response date (60 days from date of issuance)

    3. Taxpayer name, identification number, and tax year(s)

    4. Earliest statute date (when statute date on any return in the case file being returned expires within 6 months)

    5. Type of report (Observation, Advisory, Inquiry)

    6. Reason for review (mandatory-employee audit, fraud/grand jury, notice of deficiency, TEFRA, other)

    7. Reason for case return and any necessary corrective action

    8. Name and signature of the reviewer, time spent on case, and date

    9. Name and signature of Technical Services manager, and date

  3. The reviewer will forward the case file with the reviewers report to the Technical Services manager for approval. Upon approval, copies of the signed Form 3990 will be distributed as follows:

    1. Original and one copy to the responsible group manager

    2. One copy for the case file

    3. One copy retained by the report writer

    4. One copy for field area territory manager (when applicable)

4.8.2.9.1  (06-27-2013)
Case Reopening Criteria

  1. Areas conducting post-assessment or "dead" case reviews must use procedures outlined in IRM 1.2.13.1.1, Policy Statement 4-3, and Rev. Proc. 2005-32.

4.8.2.9.2  (06-27-2013)
Statute Expiration Cases

  1. If a case is returned to the group within 30 days of expiration of the assessment period, Technical Services will advise the group manager by telephone before sending the case to the group.

4.8.2.9.3  (06-27-2013)
Cycle Time

  1. Generally, cases should be corrected and returned to Technical Services within 60 days. See Exhibit 4.8.2-2. for response time frames and status updates.

4.8.2.9.4  (06-27-2013)
Monitoring Cases returned to the Field for Correction

  1. By the first working day after running the quarterly report, the Technical Services group manager will forward to each territory manager the ERCS report entitled Cases Returned to Group for the groups in their territory. The report contains a list of cases returned by Technical Services to the group.

  2. Management should follow-up on cases not returned to Technical Services within 60 days.

4.8.2.9.5  (06-27-2013)
Action by the Examiner

  1. There are times when it may be necessary for a reviewer to contact an examiner for additional information or clarification regarding a case. These inquiries should be treated with the highest priority.

  2. Whenever possible, the reviewer will attempt to obtain the information by telephone from the field examiner/group manager. If the information cannot be readily supplied, the reviewer will issue a Form 3990 and the case will be returned to the examiner.

  3. If the case is returned to the field group, the field group manager should refer to Item 1 of Form 3990, for the examiner to which the reviewers report is referred and the date.

  4. Examiners will be reassigned the case on RGS (SBSE cases only). The case should be discussed with the group manager and a course of action agreed upon.

  5. Every attempt should be made to respond to the inquiry in a timely manner.

    1. Telephone inquiries should be addressed within 3 working days.

    2. Formal written inquiries should be acted upon within 60 days.

  6. If the response will take longer than 60 days, a short memorandum providing a status report should be submitted by the field group every 60 days to Technical Services. The memorandum should contain the case name, tax years, earliest statute of limitations, status explanation/reason for delay, and expected completion date. See Exhibit 4.8.2-2 for a summary of response time frames and status updates.

  7. All voided portions of the examination report and workpapers should be maintained in the case file. If there were no math changes or additions made to the report the examiner should mark the box in Item 7 of Form 3990 and initial in space provided.

  8. When the examiner has completed action on the case, they will sign and date Item 11. Then the group manager will indicate approval by completing Item 12 of Form 3990 and return the case back to Technical Services.

4.8.2.9.5.1  (06-27-2013)
Recontacting the Taxpayer

  1. If it is necessary to re-contact the taxpayer, the examiner will contact the taxpayer within 15 days after receiving the case. The group manager may wish to be present when the taxpayer is informed of a change in the government’s position.

  2. The examiner/group manager should resolve any controversies with Technical Services before contacting the taxpayer.

  3. If the taxpayer does not agree to an increased deficiency or cannot be reached, a 30 day letter should be issued if time remains on the statute of limitations. The case should be returned to Technical Services using appropriate closing procedures.

4.8.2.9.5.2  (06-27-2013)
Procedures for Settling Controversies

  1. If examination area management disagrees with Technical Services, the case will not be returned until the controversy is resolved.

    1. If the controversy can be resolved, the parties can proceed as agreed.

    2. If agreement cannot be reached, the controversy will be resolved through existing management channels.

    3. If the examiner disagrees with the resolution of the controversy, the examiner will adopt management’s position. However, examiners have the right to submit a dissenting opinion that will be maintained as part of the case file.

4.8.2.10  (06-27-2013)
Suspense Cases

  1. Technical Services will maintain area "suspense" cases while waiting for an event to occur, such as completion of litigation or other administrative action based on national or area directive.

4.8.2.10.1  (06-27-2013)
1254 Suspense

  1. A case in 1254 suspense is held pending a court decision or final action by national office or chief counsel. You may contact your local counsel for any updates or questions.

  2. Cases may be held in suspense under the following circumstances:

    1. The facts in the case to be suspended must be the same or similar to an issue pending in a federal court.

    2. The issue is similar to or under consideration in district court in another jurisdiction but only if Form 906, Closing Agreement on Final Determination Covering Specific Matters, was secured, usually by Appeals.

    3. Headquarters or chief counsel has identified the issue as a suspense issue in most cases.

4.8.2.10.1.1  (06-27-2013)
Placing the Case in Suspense

  1. When placing a case in suspense, the reviewer will:

    1. Determine the case meets the requirements for suspense and the case file has been properly completed. A revenue agent report (RAR) or claim disallowance that addresses the unagreed issue(s) being suspended must be in the file. A claim allowance must also be included in the file should the taxpayer’s position prevail.

    2. Determine if the RAR has been shared with the taxpayer for purposes of IRC 6404(g), Abatements.

    3. Review all issues. Ensure all issues, other than the suspense issue(s), are resolved to the extent possible and any partial assessment is made before the case is placed in suspense. The only issues that may be suspended are unagreed issues meeting the suspense criteria. If a partial agreement cannot be secured and the taxpayer has failed to file a protest, a statutory notice of deficiency needs to be issued.

    4. Ensure Form 1254, Examination Suspense Report, is complete and meets the requirements of the Form 1254 suspense.

    5. Protect and control statutes of limitation for all returns in the case file. When the case is received for suspense there must be at least 24 months remaining on the statute of limitations. If not, the case should be returned to the originating group with a request to secure an adequate extension.
      Reviewers assigned the responsibility for management of the suspense files for the first time should perform a statute check immediately.

    6. Prepare and issue Letter 1014, Letter to Taxpayer Advising Him of the Reasons for Suspended Action on His Tax Return Examination, to the taxpayer, informing him/her the case is being placed into suspense.

    7. Place the case in Status Code 30, Review Type 44, Suspense Type 590.

4.8.2.10.1.2  (06-27-2013)
Monitoring the Case in Suspense

  1. Monitor the statutes of the cases in suspense every month. If six months or less remain on a statute, the suspense coordinator will solicit a statute extension from the taxpayer. If the taxpayer is unwilling to extend the statute, forward the case for issuance of a notice of deficiency. Resolution of the case should be discussed with the manager prior to removal from suspense.

    Note:

    The activity record should indicate that Pub 1035, Extending the Tax Assessment Period, was provided to the taxpayer which advises the taxpayer that they are not required to sign the extension.

  2. Every quarter the cases in suspense will be reviewed to determine if the suspense issue(s) have been resolved.

  3. If the issue is unresolved, document the case activity record as to who was contacted and the status of the issue.

4.8.2.10.1.3  (06-27-2013)
Case Closing

  1. When the suspense issues are resolved, send the case back to the examination group to prepare and issue the final report to the taxpayer to attempt to obtain his/her agreement. In some instances, the reviewer will be able to directly forward the case for closure when a protective claim has been accepted.

  2. A cover memo will be prepared to the field manager explaining the work required to resolve the suspense issue and close the case.

  3. If closing the case, the reviewer will ensure:

    • Proper case file assembly

    • Proper completion of Form 5344

    • Proper statute controls

    • Proper completion of Form 3198

4.8.2.10.2  (06-27-2013)
IRC 183(e) Hobby Loss Suspense

  1. A case forwarded for IRC 183(e), Activities Not Engaged in for Profit, suspense is a case open on AIMS/ERCS in which the taxpayer has executed Form 5213, Election to Postpone Determination as To Whether the Presumption Applies That an Activity Is Engaged in for Profit. The Service will generally postpone the determination until after the end of the 4th consecutive tax year (6th tax year for an activity that consists mainly of breeding, training, showing, or racing horses) after the tax year in which the taxpayer first engaged in the activity. For detailed information regarding IRC 183, see IRM 4.10.13.6, Activities Not Engaged in For Profit - Hobby Loss (IRC Section 183).

  2. Under IRC 183(e)(4), the statute of limitations for the IRC 183 issue is extended by the taxpayer executing Form 5213 until 2 years after the due date (determined without regard to extensions) of the last presumptive year’s return. The extension also applies to partners or shareholders in the activity.

    Note:

    The automatic extension applies only to those deductions attributable to the activity and to any deductions (such as medical expense or charitable contribution deductions) that are affected by changes made to adjusted gross income.

  3. The examiner will complete the examination of all open years in the presumption period and forward the case for suspense, pending receipt of years that have not been filed. All partial assessments or other unagreed issues should be resolved prior to sending the case for suspense. If needed, a statute extension may be secured for any non-hobby loss issues.

4.8.2.10.2.1  (06-27-2013)
Placing the Case Into Suspense

  1. Place the case in Status Code 38, Review Type 47, Suspense Type 595.

  2. Verify that the Form 5213 was timely filed (3 years after the due date of the first year for which a return is filed for this activity).

4.8.2.10.2.2  (06-27-2013)
Monitoring the Case in Suspense

  1. Each year, after the due date for the current year's return, check IDRS to determine if the subsequent return has been filed. If filed, order a RTVUE or a BRTVU for the additional filed year.

  2. Again, inspect the return for audit potential for IRC 183 related and non-IRC 183 related income and expenses. Determine if examination is warranted, and if not, place it in suspense associated with the other years.

  3. Monitor the statutes of the cases in suspense every month. If 210 days or less remain on a statute, prepare Form 895, Notice of Statute Expiration, to update the statute to "MM" with an explanation that the return is only open for the IRC 183 issue and the statute for this issue expires two years after the due date (determined without regard to extensions) of the last presumptive year’s return. Refer to IRM Exhibit 25.6.23-3, Instructions for Updating the Statute on AIMS, for further details on updating to alpha codes.

4.8.2.10.2.3  (06-27-2013)
Closing the Case

  1. Generally, once all returns in the presumption period have been filed to make a determination of the profit motive, the case must be removed from suspense.

  2. If sufficient information is contained in the file, a determination will be made by Technical Services and the case will be closed.

  3. If additional case development is required, return the case to the originating group. The coordinator will attach a cover memorandum to the case explaining that a determination should be made on the IRC 183(e) issue.

4.8.2.10.2.4  (06-27-2013)
IRC 6404(g) Tolled During IRC 183 Suspense

  1. The 18-month/36-month notification period specified in IRC 6404(g) is tolled (ceases to run) during the time the IRC 183 election is in effect and for the particular activity to which the election relates. Tolling also applies to the actual suspension of interest and other amounts under IRC 6404(g), if the suspension period has already begun when the taxpayer makes the IRC 183 election.

    Example:

    A taxpayer participated in an activity that began in 2009. They make an IRC 183 election in February 2013 with 2 months remaining in the 36-month IRC 6404(g) notification period for the taxable year in question (2009). Because of the election, the IRS will not determine before the close of the 2013 taxable year whether the IRC 183(d) presumption applies. Under Treas. Reg. 301.6404-4(c)(2)(i), tolling of the IRC 6404(g) notification period starts on the date the IRC 183 election is made, and ends on the later of 1) April 15, 2014; or 2) the date the taxpayer's return for the taxable year 2013 is filed. For example, if the taxpayer files the 2013 return on May 1, 2014, the remaining two months in the notification period would resume running on May 2, 2014 for the activity to which the election related.

4.8.2.10.3  (06-27-2013)
Fraud and Grand Jury Suspense

  1. The fraud and grand jury suspense reviewer must have a comprehensive knowledge of the entire joint investigation process. The following references may be used to gain an understanding of this process and relevant related issues:

    • IRM 4.10.6.2 - Recognizing Noncompliance

    • IRM 4.10.12 - Frivolous Return Program

    • IRM 4.12.1 - Nonfiled Returns

    • IRM 8.11 - Penalties Worked in Appeals

    • IRM 8.13 - Closing Agreements

    • IRM 9.4 - Investigative Techniques

    • IRM 9.5 - Investigative Process

    • IRM 9.8.1 - Fraud Detection Center

    • IRM 9.9 - Criminal Investigation Management Information System (CIMIS)

    • IRM 20.1 - Penalty Handbook

    • IRM 25.1 - Fraud Handbook

    • IRM 25.6 - Statute of Limitations

    • IRM 38 - Chief Counsel Directives Manual - Criminal Tax

  2. Additionally, the following resources are available:

  3. The fraud reviewer is responsible for the following:

    • Verifying or determining the correct statute and monitoring the statute of limitations for each return in suspense.

    • Reviewing and determining whether cases that are sent for suspense meet the suspense criteria.

    • Placing the case in suspense, or returning it to the group if it does not meet the suspense requirements.

    • Coordinating with area counsel and Criminal Investigation (CI) on issues that arise on cases that are in suspense.

    • Ensuring that fraud suspense and fugitive checks are performed every six months and that all fraud suspense inventory is properly coded with respect to ERCS status code, review type, suspense type and next action date.

    • Returning cases to the field that have been released from suspense.

    • Issuing a statutory notice of deficiency for cases in suspense if approval has been obtained from CI and area counsel while the case remains in fraud or grand jury suspense.

4.8.2.10.3.1  (06-27-2013)
Why Cases Are Placed in Fraud and Grand Jury Suspense

  1. Cases are placed in suspense when the control of the case is no longer under any function of the Service. This usually happens when CI recommends prosecution of the taxpayer or when a grand jury investigation is initiated. In both of these scenarios, the case is under the control of the Assistant United States Attorney (AUSA) Office. Although CI controls the investigation, the fraud reviewer has the responsibility of controlling the civil statutes.

4.8.2.10.3.2  (06-27-2013)
When Cases Are Routed to Fraud and Grand Jury Suspense

  1. CI notifies Technical Services when an investigation has been initiated by memorandum or other means with the taxpayer's name, identifying information and any related entities and whether the taxpayer is under prosecution or investigation. After confirming there is an open examination, the reviewer should send notification to the examiner's manager informing them that the taxpayer is under criminal investigation. This notification should clarify that the case is either a grand jury or administrative investigation and at what point the file should be forwarded for suspense in Technical Services. See IRM 4.8.2.10.3.5; IRM 9.5.1.2, Administrative Investigations; and IRM 9.5.2.6.3, Civil Actions During the Grand Jury Investigation.

4.8.2.10.3.3  (06-27-2013)
Contact With Taxpayers

  1. Contact with a taxpayer is generally not allowed. If a taxpayer contacts the reviewer, exercise great caution so an inappropriate disclosure does not occur. For example, the taxpayer may not be aware they are under grand jury investigation. The reviewer may answer questions about a consent form after approval has been obtained from CI to solicit the consent. However, any specific questions about the case should be directed to the special agent.

4.8.2.10.3.4  (06-27-2013)
Statute Protection

  1. The fraud reviewer is responsible for all civil statutes in fraud and grand jury suspense. Therefore, it is mandatory to review the file immediately after it is received in Technical Services. The fraud reviewer, in conjunction with the suspense clerk (if applicable), will monitor the statute of limitations on all cases in fraud and grand jury suspense. They will also monitor the statute of limitations of all subsequent and related return filings in failure-to-file cases. Refer to Exhibit 4.8.2-3 for detailed instructions to follow in failure-to-file cases.

  2. The following cases will not be accepted into suspense if the statute for any tax period in the case file does not exceed the minimum time frames shown below or if the case file does not contain documentation of the group's efforts to protect the statute of limitations as required in IRM 25.1.4.3.7, Statute Protection:

    Type of Case Minimum Time Remaining on the Statute
    Grand Jury 1 year
    Fraud/Prosecution 1 year

    Note:

    In certain grand jury cases with less than 1 year remaining on the statute and greater than 210 days (per IRM 25.6.22.2.1), an exception can be made to accept the case into grand jury fraud suspense in Technical Services if agreed upon by the local Technical Services Territory Manager and the Compliance Territory Manager. This exception will apply when CI has allowed for a Form 872, Consent to Extend the Time to Assess Tax, to be solicited from the taxpayer via a completed Form 10498-B and the taxpayer resists signing the Form 872, or when the mere attempt to secure an extension to meet the one year rule is deemed by Criminal Investigation detrimental to their investigation via a completed Form 10498-B. Upon agreement between Technical Services and Compliance, the grand jury case will be accepted into suspense in Technical Services.

4.8.2.10.3.4.1  (06-27-2013)
AIMS/ERCS

  1. It is important that the AIMS database be accurate with respect to the statute date, project code, status code, review type, suspense type, and next action date.

  2. Status Codes - General fraud suspense ERCS coding (ERCS Status Code 32, Review Type 45, Suspense Type 591) is used for administrative non-grand jury (fraud) cases, except those involving fugitives. grand jury (reflected as grand jury in ERCS) suspense ERCS coding (ERCS Status Code 36, Review Type 46, Suspense Type 592) is used for grand jury cases, except those involving fugitives. ERCS Status Code 32/36, Review Type 43, Suspense Type 591/592 is used for non-grand jury and grand jury suspense cases involving fugitives, respectively.

  3. Fraud and grand jury suspense cases are updated from Status Code 20 to Status Code 32/36 at the time the case is accepted into suspense. The case remains in Status Code 32/36 until the underlying prosecution has been completed and jurisdiction is released by CI.

4.8.2.10.3.4.2  (06-27-2013)
Alpha Codes

  1. See IRM 25.6.23.6.6.1, Extension Not Solicited, in conjunction with IRM Exhibit 25.6.23-3 for a complete discussion of appropriate use of alpha statute codes. The discussion below is limited to alpha statutes specific to joint investigation cases and those most commonly used in joint investigation cases.

    Note:

    The most conservative approach is to be used when selecting from among alternative statute dates. If the three-year IRC 6501(a), Limitations on Assessment and Collection, statute is still open, it is to be used. Once that is allowed to expire, the six-year IRC 6501(e) statute (or any shorter live statute date if another applies) is to be used before alpha code "CC" or "OO" is utilized. Care must be taken to distinguish a live statute governing the entire return (e.g., IRC 6501(e)) from a live statute covering only a specific issue (e.g., IRC 6501(c)(8) when failure to report is due to reasonable cause and not willful neglect).

  2. "NN" - IRC 6501(e):

    1. Form 895 and ERCS will be controlled under the LIVE six-year statute (NEVER under an alpha control section). The IRC 6501(e) computation must accompany Form 895 and must be verified by the reviewer before it is relied upon. This requirement applies to cases in Technical Services only.

    2. Cases in fraud and grand jury suspense should never have an alpha code of "OO" , as all cases in suspense are cases which are under criminal or grand jury investigation. When the cases are no longer under criminal investigation and are sent back to the group for civil settlement, the statutes should be updated to "OO" if the 3 and 6 year statutes have expired.

    3. Statutes expiring in a Technical Services status should not be updated to "CC" unless a signed Form 10498-B, Intent to Commence Civil Action - Statute Protection, has been signed by the special agent in charge, Technical Services territory manager, Technical Services group manager, and the supervisory special agent.

    Note:

    If Form 10498-B was executed in the field before the case was sent to Technical Services for suspense, the validity of the field’s Form 10498-B must be verified before the field's "CC" alpha update is accepted or the tax year is updated to "CC" by the fraud reviewer.

  3. "CC" - Joint Investigation:

    1. "CC" should only be used after it has been confirmed that no other live statute is applicable.

    2. "CC" is used for tax periods covered by a Form 10498-B or memorandum signed by Examination and Criminal Investigation, stating that no consent to extend the statute should be secured, or for tax periods for which permission to solicit consent to extend the statute was obtained but the taxpayer did not sign the consent. Form 10498-B or memorandum executed at the group level is signed by the examination group manager, supervisory special agent, special agent in charge (or delegate) and territory manager or area director. If the case is in fraud suspense, it is executed by the Technical Services group manager, supervisory special agent, special agent in charge, and Technical Services territory manager (TSTM).

    3. See IRM Exhibit 25.6.23-3 under "CC-Joint Investigation." An appropriate statement in the remarks section of Form 895 would be: "Form 10498-B approved on [date signed by the territory manager or the area director]."

    4. "CC" may also be used with a tax return, in a joint investigation case, has a statutory period for assessment that expired before the return was assigned to the examiner or specialist.

    5. If CI withdraws from the joint investigation prior to the expiration of the statute, the statute controls must be updated to reflect the normal statute expiration date or other applicable ASED alpha code. For example, update to a live IRC 6501(e) six-year statute or "OO" if some other exception to normal three-year assessment statute applies.

      Note:

      This requirement applies to tax years for which Form 10498-B was previously executed allowing the civil statute to expire, but for which the normal statute is still open ("live" ) when the criminal investigation concludes. Necessary action to protect the civil statute must be redetermined for such tax year(s) based upon the outcome of the criminal investigation, which would now be known. Alpha code "CC" is not valid once jurisdiction of the case is released to Examination by CI.

      If the normal statute is still open when the criminal investigation concludes, Technical Services territory manager approval is required to update the ASED to alpha "OO" .

  4. "OO" - IRC 6501(c)(1): False or Fraudulent Return:

    1. "OO" is used when the Service relies on the provisions of IRC 6501(c)(1), relating to the filing of a false or fraudulent return, to keep the statute open. If fraud is proven, there is no limit on the period for assessment. "CC" statutes are updated to "OO" when the case is returned for civil settlement at the conclusion of the criminal investigation unless the statute is live at that time. Use "OO" for prosecution and non-prosecution years and discontinued investigation (DI) years if the statute has expired and the case file(s) are being returned for civil settlement.

    2. If the return is under joint investigation, "CC" should be used rather than "OO" . The "OO" alpha code may be used for cases where the government can prove civil fraud and the statute for the entire return is not kept open by any other provision of the law.

    3. The month (MM) and year (YYYY) entries accompanying the "OO" alpha code are the month and year the statute would expire if the return was not false or fraudulent.

4.8.2.10.3.4.3  (06-27-2013)
Fraud and Grand Jury Suspense Control Sheets

  1. When a case is received by the fraud reviewer for fraud or grand jury suspense, a suspense control sheet, Exhibit 4.8.2-4, will be completed for each taxpayer. Attach a copy to the front of the file folder, a copy may be kept in a binder by the fraud reviewer for quick reference should the fraud reviewer receive questions regarding the taxpayer.

  2. The control sheet is self explanatory and asks for information to aid in determining the statute of limitations for each return, the tax periods, the type of suspense, project and status codes, the examiner, special agent, power of attorney, related cases, date accepted into suspense, instructions to request subsequent years, and a place for instructions to the suspense clerk (if applicable). The reviewer should provide clerical staff with Form 5348, AIMS/ERCS Update (Examination Update), for any necessary required updates and maintain a copy or the original Form 5348 in the case file.

4.8.2.10.3.4.4  (06-27-2013)
Form 10498-B, Intent to Commence Civil Action - Statute Protection

  1. If a statute is within 210 days of expiring and the case is under the control of CI, the fraud reviewer will prepare Form 10498-B, Joint Investigations Intent to Solicit Consent to Extend Statute.

  2. After the Form 10498-B is prepared by the reviewer and signed by the Technical Services group manager, it is forwarded along with a letter or routing slip via Form 3210 or electronically via secure e-mail to CI. This form is used to request permission to solicit consent and/or issue a statutory notice of deficiency. The supervisory special agent and special agent in charge (or delegate) sign the form on behalf of CI. CI will let the reviewer know whether a consent can be solicited and/or a 90 day letter can be issued. A separate Form 10498-B must be prepared to protect the 6-year statute under IRC 6501(e). On rare occasions, the reviewer may disagree with the decision to allow the statute to expire. For example, if it is known that the primary charges against an individual are not tax-related and the civil tax amounts are material or a return associated with the case that is not being pursued by CI is at issue, a more in-depth discussion should occur with CI and Policy Statement 4-26 (P-4-26) procedures should be initiated as appropriate. See IRM 1.2.13.1.11, Policy Statement 4-26. When the signed Form 10498-B is received from CI, it is forwarded to the Technical Services territory manager for signature.


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