4.23.15  Technical Advice From the Office of Chief Counsel

Manual Transmittal

May 17, 2012

Purpose

(1) This transmits revised IRM 4.23.15, Employment Tax - Technical Advice From the Office of Chief Counsel.

Background

Updates are made to this chapter for editorial, procedural, and technical changes.

Material Changes

(1) Editorial and technical changes and updates have been made throughout this Section. References to LMSB changed to LB&I.

(2) All references to Rev. Proc. 2009-2 have been changed to Rev. Proc, 2012-2. This revenue procedure is revised yearly, and can be found as Rev. Proc. 20XX-2 for future years.

(3) 4.23.15.1. Clarifications and rewording.

(4) 4.23.15.2.2(6). Revised to reflect Rev. Proc. 2012-2 section 7.01, which allows the taxpayer five calendar days to indicate disagreement with the facts and circumstances outlined in the request.

(5) 4.23.15.2.2(11). Added that the perjury statement is required to be signed.

(6) 4.23.5.4(3). Added paragraph for additional guidance on discussion of analysis and conclusions.

Effect on Other Documents

This transmittal supersedes IRM 4.23.15 dated July 17, 2009.

Audience

This section contains instructions and guidelines for all LB&I, TE/GE, and SB/SE employees when dealing with employment tax issues.

Effective Date

(05-17-2012)

John H. Imhoff, Jr.
Director, Specialty Programs
Small Business/ Self-Employed Division

4.23.15.1  (05-17-2012)
Overview

  1. This section explains the steps to take when seeking technical advice from the Office of Chief Counsel. Requesting technical advice is appropriate when the application of the law to the facts involved is unclear. Additional information is contained in IRM 4.2.3, Technical Advice to Taxpayers and Compliance Personnel in IRM 4.2, General Examining Procedures, and provides Compliance Examination information on various types of technical advice.

  2. Technical questions arising in employment tax cases involving the interpretation and application of tax laws, regulations, or other precedent published by the Department of Treasury to a specific set of facts should be referred to the Office of Chief Counsel. A request for technical advice must include the facts, the issues for which technical advice is requested, the applicable law, and the Service's and taxpayer's position.

  3. Definitions of terms and the procedures for furnishing technical advice to directors and Appeals, in areas under the jurisdiction of the Associates Chief Counsel and the Division Counsel/Associate Chief Counsel (Tax Exempt and Government Entities), are found in the second Revenue Procedure that is published annually. For 2012, this technical advice is found in Rev. Proc. 2012-2. This revenue procedure is the controlling document to use in the preparation, submission, and disposition of requests for technical advice. This revenue procedure is revised yearly, and can be found as Rev. Proc. 20XX-2 for future years.

  4. Before requesting technical advice, there must be a request for assistance (and a recommendation from field counsel for the appropriate operating division. Any disagreement with that recommendation must be resolved through their respective supervisors. See Rev. Proc. 2012-2 for additional guidance.

  5. In some employment tax inquiries, TE/GE Area Counsel may handle the technical issue, thus negating the need for Division Counsel involvement.

  6. Form SS–8, Determination of Employee Work Status for Purposes of Federal Employment Taxes and Income Tax Withholding, may be used when supplying information on employer-employee relationship questions.

  7. In general, a field office may request technical advice from the appropriate Associate Chief Counsel office on any technical or procedural question which arises during an examination. Likewise, the taxpayer may also request technical advice during the examination. Advice should be requested in cases in which any of the following conditions exist:

    1. The law and regulations are not clear on the issue being considered and there is no published precedent for determining the proper treatment of the issue.

    2. There is reason to believe that a lack of uniformity in the treatment of the issue exists.

    3. A doubtful or contentious issue is involved in a number of cases.

    4. The issue is very unusual or complex and warrants associate office consideration.

    5. The field office believes that securing technical advice from the associate office is in the best interest of the Service.

  8. When there is doubt as to whether or not a case should be submitted for technical advice, such doubt should be resolved in favor of requesting technical advice.

4.23.15.2  (07-17-2009)
Request Procedures — Initiating Employment Tax Technical Advice

  1. Revenue Procedure 2012-2, Section 5 - "Initiating a Request for Technical Advice," provides that, before requesting a technical advice memorandum (TAM), the field office must request assistance and a recommendation from field counsel. If the field office disagrees with that recommendation, the field office must seek reconciliation with field counsel through their respective supervisors. Any request for technical advice must be approved in writing by the Director. A field office or the taxpayer may request a TAM.

  2. During an examination, the taxpayer or his/her representative may request that an issue be referred to the Associate Chief Counsel office for technical advice on the grounds of lack of uniformity or that the issue is so unusual or complex as to warrant consideration by Associate Chief Counsel office. (See Policy Statement 4-82.) Generally, requests for technical advice are submitted to the Associate Chief Counsel office on Form 4463, Request for Technical Advice. However, Form 5565, Request for Technical Advice—EP/EO, is used to transmit requests for technical advice on employee plans, exempt organizations, and governmental entities.

    1. If the examiner thinks that a taxpayer's request for referral of an issue to the Associate Chief Counsel office for technical advice does not warrant consideration, the examiner will so advise the taxpayer. The taxpayer may appeal the decision not to request technical advice by submitting to the examiner within thirty calendar days a statement of the facts, law and arguments on the issue, and the reasons why the matter should be referred to the Associate Chief Counsel office for technical advice. A request by the taxpayer for an extension beyond the thirty-day period must be in writing and be approved by the examiner's first and second level manager.

    2. The examiner will submit the taxpayer's appeal to the manager, along with a written statement of why the issue should not be referred to the Associate Chief Counsel office. The manager will determine on the basis of the statement whether technical advice will be requested. If the manager denies the taxpayer's request, the taxpayer will be notified in writing of the reasons for the denial.

    3. The taxpayer may not appeal the decision of the manager. However, the proposed denial is subject to review.

    4. If the taxpayer does not agree with the proposed denial, all data on the issue for which technical advice has been sought, including the taxpayer's written request and statements, will be submitted to the appropriate Director as defined in Section 2 - "Definitions," of Rev. Proc. 2012-2, for review of the proposed denial. The person responsible for review may consult with the Associate office, if appropriate.

    5. While the proposed denial package is being reviewed, the field office will suspend action on the issue (except when the delay would prejudice the Government's interest) until it is notified that the proposed denial is approved or disapproved. This notification is generally made within 45 calendar days after receipt of the data. The review will be based solely on the written materials submitted by the taxpayer and the field office. No conference will be held in Associate Chief Counsel office in regard to the appeal of a denial at this level.

4.23.15.2.1  (07-17-2009)
Pre-Submission Conferences

  1. Rev. Proc. 2012-2, Section 6, describes the pre-submission process. A pre-submission conference is mandatory. The parties should discuss the framing of the issues, the background information, and documents that should be included in the request for technical advice. The taxpayer and representatives from the field office, field counsel, and the Associate office may attend the pre-submission conference. If a request for technical advice is submitted without first holding a pre-submission conference, the Associate office will return the request for advice. Requests for technical advice can proceed even if a taxpayer declines to participate in a pre-submission conference.

  2. Before requesting a pre-submission conference, the field office and the taxpayer must exchange proposed statements of the pertinent facts and issues. A request for a pre-submission conference must be submitted in writing by the field office with the assistance of field counsel. The request should identify the Associate office expected to have jurisdiction over the request for a TAM and should include a brief explanation of the primary issue.

  3. See Revenue Procedure 2012-2 (or the subsequent annual update) for procedure on transmitting pre-submission materials. Generally, the pre-submission materials are sent from the field office to field counsel for the field counsel to submit to the Associate office.

4.23.15.2.2  (05-17-2012)
Submitting the Request for Technical Advice

  1. Every request for technical advice must include a memorandum that describes the facts, issues, applicable law, and argument supporting the taxpayer’s position on the issues and the field office’s position on the issues. The field office will prepare this statement with the assistance of field counsel. If the taxpayer and the field office disagree about ultimate findings of facts or about the relevance of facts, all of the facts should be included with an explanation that highlights the areas of disagreement. The field office submits the request for technical advice. For a complete set of instructions, see Rev. Proc. 2012-2, Section 7.

  2. Forms 4463 and 5565 are pre-addressed to Internal Revenue Service, Washington, D.C., 20224. Requests on either form should be submitted with the original and two copies. For SB/SE, an information copy should be sent to the SB/SE Director, Specialty Programs. If the request covers an LB&I case, the phrase "Controlled LB&I Case" should be included in the subject heading to ensure that the request receives the highest possible priority at all levels.

  3. It is the responsibility of the field office or Specialty Operation to determine whether technical advice will be requested on any issue. Each request must be submitted through channels and be signed by the Director or delegate and should include, in writing, the arguments submitted by the area in support of its position on the issue or issues.

  4. Each request for technical advice should state the name and address of the taxpayer's authorized representative (if any), and whether a power of attorney is on file.

  5. To facilitate necessary personal contact between the field office and Associate Chief Counsel office on pending technical advice cases, the following procedures are provided:

    1. The name and telephone number of the examination group and examiner will be inserted in and in Item 8(a) of Form 5565. For SB/SE Employment Tax requests, the referral will be coordinated with the assigned program analyst on the SB/SE Employment Tax Policy staff.

    2. Upon receipt of a request for technical advice, a branch representative from the Associate Chief Counsel office with primary responsibility for the request will contact the field office to acknowledge receipt.

  6. When technical advice is requested by the Service, the taxpayer must be informed and furnished a copy of the request. The taxpayer will be given five calendar days to indicate, in writing, any disagreement about facts and specific questions. A request for additional time from the taxpayer must be in writing and be approved by the first and second level manager who have jurisdiction. Every effort should be made to reach agreement on the facts and specific points at issue. After the five-day period or extension has expired, the request for technical advice will be forwarded with the taxpayer's statement, if received, to Office of Chief Counsel to the attention of the Associate Area Counsel.

    Note:

    The above does not apply in cases involving civil or criminal fraud investigations and jeopardy or termination assessments.

  7. If the taxpayer initiates the action to request technical advice and the taxpayer's statement of the facts and point at issue is not acceptable to the field office, the examiner will advise the taxpayer, in writing, of the areas of disagreement. The taxpayer will then have ten calendar days after receiving the written notice to reply. If an extension beyond the ten calendar days is requested, in writing, it must be approved by either the territory manager or the area director appeals. If agreement cannot be reached, both the statements of the taxpayer and the examiner will be forwarded to the Office of Chief Counsel with the request for technical advice.

  8. Usually within 21 calendar days after the technical branch at the Associate Chief Counsel office receives the request for technical advice, an attorney will telephone the Area Office, or appropriate government entities approving official, to discuss the procedural and substantive issues in the request. Area managers are encouraged to telephone the branch representative to discuss the progress of the case.

  9. The Associate Chief Counsel office will indicate whether additional information is needed and will obtain that information from the taxpayer or field office in the most expeditious manner possible. Any additional information from the taxpayer must be provided within 10 calendar days of the request, unless an extension of time is requested from the Associate Chief Counsel office in writing and the request is approved. The additional information must be sent to the Associate Chief Counsel office, and the taxpayer must also send a copy to the Director for comment.

  10. Every request for technical advice must include a statement of proposed deletions from public inspection. Because the text of a technical advice memoranda, TAM, is open to public inspection, the taxpayer must provide a statement indicating any desired deletions. A taxpayer who wants only names, addresses, and identifying numbers deleted must explicitly state these conditions in the deletion statement. The deletion statement appears in a separate document from the memo. A stamped signature or faxed signature is not permitted. If the deletion statement is not received within 10 calendar days after the taxpayer is notified a deletion statement must be provided, the field office will provide the Associate office with an appropriate deletion statement. For additional information on the deletion statement, see Rev. Proc. 2012-2, Section 7.

  11. The field office prepares the memo requesting technical advice with the assistance of field counsel and sends it to the taxpayer by mail or by fax. The taxpayer has 5 calendar days from the date of mailing or faxing to respond by providing a written statement specifying any disagreement on the facts and issues. After the taxpayer’s response is received by the field office, the parties will have 10 calendar days to resolve remaining disagreements. If all disagreements about the statement of facts and issues are resolved, the field office will prepare a single statement of those agreed facts and issue. If disagreements continue, both the taxpayer’s set of facts and issues and the field’s set of facts and issues will be forwarded to the Associate office. The field office, with the assistance of field counsel, will prepare a memorandum to the Associate office highlighting the material factual differences, and provide a copy to the taxpayer. This memo will be forwarded with the initial request for technical advice. The taxpayer’s statement of facts and issues must be accompanied by the following declaration:

    "Under penalties of perjury, I declare that I have examined this information, including accompanying documents, and, to the best of my knowledge and belief, the information contains all relevant facts relating to the request for technical advice, and such facts are true, correct, and complete."



    This declaration must be signed in accordance with the requirements in section 7.01(15)(b) of Rev. Proc. 2012-1.

  12. The field office will offer the taxpayer an opportunity to participate in the development of the TAM. If the taxpayer does not participate in a material stage of the process after being offered an opportunity, the Associate office will nonetheless process the request, and the taxpayer will have waived the right to participate in the development and issuance of the TAM, including the right to have a conference if the proposed TAM is adverse to the taxpayer. (See Rev. Proc. 2012-2, Section 9.)

  13. The field office must submit one paper copy of the request for a TAM to:
    Internal Revenue Service
    Attn: CC:PA:LPD:TSS
    Room 5329
    1111 Constitution Avenue, NW
    Washington, DC 20224.

  14. If the TAM relates to a SB/SE or TE/GE taxpayer, the field office must send one paper copy to the Division Counsel of the operating division that has jurisdiction over the taxpayer’s tax return. If the TAM relates to an LB&I taxpayer, an electronic copy (no paper copy to follow) is also sent to the "&LB&I HQ" E-mail address.

4.23.15.3  (07-17-2009)
Taxpayer Conferences

  1. The taxpayer will be advised of his/her right to a conference in the Associate Office of Chief Counsel if an adverse decision is indicated and will be asked to advise if such a conference is desired (provided he or she has not waived his or her right to a conference). The examiner will make a note in the history as to the taxpayer's choice.

  2. The taxpayer will be informed of the time and place for the conference. The conference must occur within 10 calendar days after the taxpayer is informed that an adverse TAM is proposed. The Associate office will notify the field office and field counsel of the scheduled conference and will offer the field office and field counsel the opportunity to participate in the conference. See Rev. Proc. 2012-2, Section 9, for more information regarding Taxpayer Conferences.

4.23.15.4  (05-17-2012)
Differences of Opinion Between Directors and Associate Chief Counsel Office

  1. A Director in disagreement with a technical advice should present those views on the issue to the Associate Chief Counsel Office with a request for reconsideration. While an issue is being reconsidered, the Director will withhold any advice to the taxpayer.

  2. The Service encourages frank expression of views by the Director on any issue involved in a request for technical advice. If the Director has facts which are not disclosed in the case file or has developed a point of view which is pertinent to the issues involved, the Associate Chief Counsel Office should be fully informed of such facts or point of view when requesting reconsideration on a case.

  3. Requests for reconsideration must describe with specificity the errors in the analysis and conclusions. Requests should focus on points that the TAM overlooked or misconstrued rather than simply re-arguing points raised in the initial request.

  4. While a free exchange of views is encouraged, the final advice furnished to the Director will be considered to be the Service's position and will be adopted by the Director.

  5. See Rev. Proc. 2012-2 (or subsequent annual update), Section 10 for more information.

4.23.15.5  (07-17-2009)
Coordination of Employment Tax Rulings With Social Security Administration

  1. When there are divergent views between representatives of field office examination and a field office of the Social Security Administration, in a case under examination affecting the tax and benefit status of services or remuneration under the employment tax laws, including determinations for self-employment tax purposes, every effort should be made to coordinate and resolve such differences by consultation or exchange of views at the field level.

  2. If the divergent views are resolved at the field level and the taxpayer is not in agreement with the proposal, he/she will be accorded the usual appeal rights.

  3. If the difference of opinion cannot be resolved so as to render consistent the views of the field office examination and the Social Security Administration's field office regarding the tax and benefit status of a particular case, the matter will be referred to the Office of Chief Counsel for appropriate action. No case will be referred to the Appeals Office in which the views of the field office examination and the Social Security Administration are in divergence.

  4. There should be included with such referral to the Office of Chief Counsel a clear and comprehensive statement of the entire factual situation, including a brief statement of the basis for the conclusions reached by the field office examination, together with copies of any information or evidence made available by the Social Security Administration.


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