4.71.13  Technical Assistance and Technical Advice Requests

Manual Transmittal

May 19, 2014

Purpose

(1) This transmits revised IRM 4.71.13, Employee Plans Examination of Returns, Technical Assistance and Technical Advice Requests.

Background

IRM 4.71.13 provides guidance and procedures for EP agents in obtaining technical assistance from EP Rulings and Agreements, Area Counsel, EP Examinations Mandatory Review (Mandatory Review) and EP Examinations Special Review (Special Review), as well as in obtaining technical advice.

Material Changes

(1) Detailed Technical Advice procedures have been added in IRM 4.71.13.5.

(2) Information about Ask the Reviewer was added to IRM 4.71.13.4.

(3) The links to the IRM Exhibits have been updated. The Exhibits are now posted on TE/GE Connect under the JOB tab at IRM 4.71 - Employee Plans Examination Exhibits.

Effect on Other Documents

This supersedes IRM 4.71.13 dated September 25, 2012.

Audience

TE/GE Employee Plans

Effective Date

(05-19-2014)


Robert Choi
Director, Employee Plans
Tax Exempt and Government Entities Division

4.71.13.1  (05-19-2014)
Requesting Technical Assistance and Technical Advice

  1. Agents may secure technical assistance when the need arises. As provided below in IRM 4.71.13.1 through IRM 4.71.13.4, agents can obtain assistance from:

    1. Employee Plans Rulings and Agreements (Rulings and Agreements)

    2. Area Counsel

    3. EP Examinations Special Review (Special Review)

    4. EP Examinations Mandatory Review (Mandatory Review)

  2. Agents may also obtain technical advice related to EP examinations from Employee Plans Technical (EP Technical).

    1. Guidance is provided in IRM 7.1.5, Employee Plans Technical Advice Procedures, IRM 4.71.13.5, Technical Advice Procedures, and in Rev. Proc. 2014-5 (as updated annually).

    2. These requests are routed through Special Review.

  3. Except as provided for in IRM 4.71.13.4(2), send requests for technical assistance and technical advice for examination issues through Special Review at the following address:

    Internal Revenue Service
    Attn: Manager, Special Review
    31 Hopkins Plaza
    Room 1550
    Baltimore, MD 21201

  4. Send technical assistance requests related to the determination letter process through EP Quality Assurance at the following address:

    Internal Revenue Service
    Attn: EP Rulings and Agreements, Quality Assurance
    550 Main Street
    Room 7008 (T:EP:RA:QA)
    Cincinnati, OH 45202

4.71.13.2  (05-19-2014)
Assistance from Rulings and Agreements

  1. Rulings and Agreements provides technical assistance under the following conditions:

    1. The matter is not related to an examination of a return.

    2. The matter is not related to a request for a determination letter.

    3. The matter does not relate to a specific case under consideration by an Examination Area or an Appeals Office.

  2. When technical advice is required on an issue that is case related, agents must follow the procedures for technical advice provided in IRM 4.71.13.5, IRM 7.1.5, Employee Plans Technical Advice Procedures and Rev. Proc. 2014-5 (as updated annually).

  3. Technical assistance may involve any tax matter, but is generally requested when:

    1. A potential problem is recognized from a newspaper or magazine article.

    2. State or local law or ordinance is recently enacted.

    3. Uncertainty exists regarding the interpretation of internal revenue laws, related statutes and regulations, published revenue rulings, revenue procedures, or any other published precedent.

  4. Agents should prepare a memorandum when requesting technical assistance from Rulings and Agreements for an issue related to determination submissions when the issue does not pertain to a procedural matter.

    1. Address the memorandum to the Director, EP Rulings and Agreements (SE:T:EP:RA).

    2. Explain the facts and relevant information needed to evaluate the request.

    3. Ensure the memorandum is signed by the group manager.

    4. Route the request through Special Review.

  5. Following are special instructions to submit a request for technical assistance to the Director, EP Rulings and Agreements.

    Responsible Party Action
    a. Agent • Prepare memo requesting technical assistance.
    b. Manager, Special Review • Review for appropriateness.
    • Forward request to Rulings and Agreements.
    c. Special Review Staff • Log-in all requests for technical assistance.
    d. Rulings and Agreements • Prepare written response to each request for technical assistance.
    • Return response to Manager, Special Review, who will forward the response to the requesting group manager.
  6. When an agent or manager would like to know the status of a request for technical assistance, the group manager will contact the Manager, Special Review, who will:

    1. Forward the inquiry to Rulings and Agreements.

    2. Update the group manager on the status of the request as provided by Rulings and Agreements.

  7. The guidance that is provided by Rulings and Agreements on requests for technical assistance will be shared with the EP agents and managers.

  8. While the sharing of technical assistance from Rulings and Agreements with plan sponsors is not encouraged, a specific request for disclosure should be honored with group manager approval.

4.71.13.3  (05-19-2014)
Assistance from Area Counsel

  1. Agents are encouraged to make informal, and if necessary, written requests for assistance to Area Counsel on issues that require the interpretation of law, or for assistance on the development of cases that may be litigated in Tax Court or sent to Appeals.

  2. The agent will make the request for assistance to Area Counsel through their group manager.

    Note:

    Area Counsel has requested that the group manager make the initial contact.

  3. Special Review is available to assist the agent in the preparation of a request for assistance to Area Counsel.

  4. When a written response is received from Area Counsel, the group manager will send a sanitized copy to the Manager, Special Review, who will determine if the provided guidance has an impact beyond the immediate case.

    Note:

    A sanitized copy is one where the taxpayer's name and taxpayer identification number (TIN) should be removed.

  5. If the Manager, Special Review determines that there is an impact beyond the immediate case, he or she will prepare a generic memorandum, containing the guidance, which will be distributed to EP Exam agents and their managers.

    Note:

    Area Counsel is available to work with EP Special Review to help draft and review this document.

  6. The Office of Chief Counsel will establish an EP support network consisting of Area Counsel attorneys who are available to provide necessary support to the EP Examination Areas.

  7. In general, agents should request assistance from the Area Counsel office responsible for the state in which the taxpayer is located. However, for a case that is part of a special project, requests for assistance will be assigned to a project attorney, regardless of the location of the taxpayer.

  8. The following is a list of Area Counsel offices that EP agents may contact for assistance.

    1. Northeast Area Counsel covers the states of Maine, Vermont, New York, New Hampshire, Connecticut, Massachusetts, New Jersey and Rhode Island. The address and contact phone number is:
      TE/GE Area Counsel
      1600 Stewart Avenue
      Suite 601
      Westbury, New York 11590
      516-688-1721

    2. Mid-Atlantic Area Counsel covers the states of Ohio, West Virginia, Maryland, Pennsylvania, Delaware, D.C., Virginia, North Carolina and South Carolina. The address and contact phone number is:
      TE/GE Area Counsel
      31 Hopkins Plaza
      Suite 1300
      Baltimore, Maryland 21201
      443-853-5442

    3. Great Lakes Area Counsel covers the states of North Dakota, South Dakota, Nebraska, Minnesota, Iowa, Wisconsin, Michigan, Illinois, Indiana, Kentucky and Tennessee. The address and contact phone number is:
      TE/GE Area Counsel
      200 West Adams Street
      Suite 2300
      Chicago, Illinois 60606
      312-368-8531

    4. Gulf Coast Area Counsel covers the states of Texas, Oklahoma, Arkansas, Louisiana, Mississippi, Alabama, Georgia and Florida. The address and contact phone number is:
      TE/GE Area Counsel
      4050 Alpha Road
      13th Floor
      MC 2000 NDAL
      Dallas, Texas 75244-4203
      972-308-7435

    5. Pacific Coast Area Counsel covers the states of Washington, Oregon, California, Alaska and Hawaii. The address and contact phone number is:
      TE/GE Area Counsel
      300 N. Los Angeles Street
      Stop 2000
      Room 3018
      Los Angeles, California 90012
      213-894-3027 x 162

    6. Mountain States Area Counsel covers the states of Montana, Idaho, Wyoming, Nevada, Utah, Colorado, Kansas, Missouri, Arizona and New Mexico. The address and contact phone number is:
      TE/GE Area Counsel
      600 17th St.
      Suite 300N
      Denver, CO 80202
      720-956-4018

  9. Generally, an opinion from Area Counsel is confined to the specific facts and circumstances of a case and should not be interpreted as a statement of law that can be applied to other cases.

  10. Technical assistance from Area Counsel is advisory only and may not be cited as authority. Copies of technical assistance originating in Area Counsel may be protected from disclosure by privileges and should not be shared with plan sponsors or practitioners.

  11. Whenever an agent wants to pursue the six year statute of limitations (SOL) for a case, he or she must obtain written approval from Counsel. The agent must retain a copy of the written response in the case file.

4.71.13.4  (05-19-2014)
Assistance from Mandatory Review and Special Review

  1. Reviewers in Mandatory Review and Special Review are available to assist agents and managers on technical and procedural issues.

  2. Mandatory Review will provide guidance when:

    1. The agent needs help on an exam issue on a case that is expected to be closed "unagreed."

    2. The agent or manager has a question about a procedure covered in IRM 4.71 (EP Examination Procedures).

    3. The agent or manager has a question that pertains to a special exam project that is being coordinated by a reviewer in Mandatory Review.

  3. Guidance on all other exam related issues should be obtained from Special Review through Ask the Reviewer.

    1. Ask the Reviewer function is a source of technical and procedural guidance.

    2. Because each case may have unique facts and circumstances Special Review will not make specific case related decisions.

    3. Submit your question to Ask the Reviewer using the following email address: *TE/GE-EP-Ask Special Review.

    4. When submitting a question, clearly state the question, list the documents you researched and summarize any suggestions from the group manager.

    5. EP Special Review will generally respond within the next two business days.

  4. Agents should attempt to resolve technical and procedural issues at the group level before requesting assistance. This will include requesting assistance from senior agents and the group manager prior to contacting Mandatory Review or Special Review.

  5. Group managers may contact the Manager, Mandatory Review or the Manager, Special Review to request a reviewer to give a presentation of a specific topic of interest at a group meeting.

4.71.13.5  (05-19-2014)
Technical Advice Procedures

  1. These technical advice procedures adhere to Rev. Proc. 2014-5 guidelines (as updated annually) and will provide agents with examination case guidance when requesting a Technical Advice Memorandum (TAM) from EP Technical. These procedures will detail the agent’s responsibilities prior to the TAM submission, during EP Technical’s consideration and after it’s returned to the group.

  2. This IRM sets forth the applicable procedures that supplement the general technical advice procedures contained in IRM 7.1.5, Employee Plans Technical Advice Procedures.

  3. Technical advice is defined as a written advice or guidance memorandum furnished by EP Technical as to:

    1. The interpretation and proper application of tax law, tax treaties, regulations, revenue rulings, notices or other published precedents,

    2. A specific set of facts in connection with the examination of a taxpayer's return, consideration of a taxpayer’s claim for refund or credit, or

    3. Any other matter under the jurisdiction of EP Examinations.

  4. Administrative procedures for requesting technical advice on matters under the jurisdiction of the TE/GE Commissioner are found in Rev. Proc. 2014-5 (updated annually during the month of January). Further references to this annually updated Revenue Procedure will be referred to as the "Annual Revenue Procedure."

  5. Requests for technical advice are encouraged on any technical or procedural questions, which cannot be resolved on the basis of law, regulations, rulings, or other published precedent.

  6. Send all technical advice requests related to examination issues through EP Examinations Special Review at:
    Internal Revenue Service
    Attn: Manager, Special Review
    31 Hopkins Plaza
    Room 1550
    Baltimore, MD 21201

4.71.13.5.1  (05-19-2014)
Mandatory Technical Advice

  1. The agent must request technical advice when considering the following issues:

    1. Requests for IRC 7805(b) relief with respect to all EP matters,

    2. Proposed adverse or proposed revocation letters on collectively-bargained plans,

    3. Plans for which the IRS is proposing to issue a revocation letter because of certain fiduciary actions that violate the exclusive benefit rule of IRC 401(a) and are subject to Part 4 of Subtitle B of Title I of the Employee Retirement Income Security Act of 1974, Pub. L. No. 93-406, 1974-3 C.B. 1, 43, or

    4. Amendments to defined contribution plans under Rev. Proc. 2004-15 in connection with a waiver of the minimum funding standard and a request for a determination letter.

4.71.13.5.2  (05-19-2014)
Initiating A Request For Technical Advice

  1. Initiate a request for a TAM (to the extent possible) at the earliest stage of the examination.

  2. Request a TAM when there is a lack of uniformity in the disposition of an issue or when an issue is unusual or complex in nature.

  3. The EP Examinations Area Manager (Area Manager) determines whether to request a TAM for an issue. Each request must be submitted through proper channels and signed by a person who is authorized to sign for the Area Manager.

  4. If an EP Examinations technical advice request to EP Technical is for a case with either an unagreed prohibited transaction, as defined in IRC 4975(c)(1), or a violation of the exclusive benefit rule of IRC 401(a)(2), then EP Examinations must submit a Form 6212-B, Examination Referral Checksheet B, to the U.S. Department of Labor prior to submitting the request to EP Technical.

  5. If the agent decides that technical advice is warranted, the agent will immediately forward a recommendation to his/her group manager for approval.

  6. If approved, the group manager will then immediately forward his/her recommendation to the Area Manager.

  7. All requests for technical advice must have the approval of the Area Manager. The Area Manager may prescribe the manner and the extent of documentation needed for this approval.

  8. After securing approval to initiate the request for a TAM, the agent must prepare a document setting forth the:

    1. Facts and the issues for which a TAM is requested,

    2. Applicable law and arguments in support of the Service’s positions on the issue or issues, and

    3. Applicable law and arguments in support of the taxpayer’s positions on the issue or issues.

      Note:

      Generally, there should be separate sections for the facts, law, government’s position, taxpayer’s position and conclusion for each issue.

  9. After securing approval to initiate the request for a TAM, the agent will initiate the process by notifying the taxpayer in writing that he or she intends to request technical advice, using Letter 1399-A, Technical Advice Notification. See IRM 4.71.13 Exhibit 1 at IRM 4.71 - Employee Plans Examination Exhibits for an example of Letter 1399-A.

  10. The taxpayer has no authority to bar an internal decision to seek technical advice. However, agents, group managers and Area Managers may consider and document any objections received from the taxpayer.

  11. If the taxpayer requests additional time to respond to the Technical Advice Notification:

    1. The taxpayer must make a written request to extend the ten day period before expiration of the ten calendar days. The request must include the specific reasons justifying the extended time requested and a written signature of a duly authorized individual on behalf of the taxpayer.

    2. Upon receipt of the written request to extend the ten day period, the agent will immediately review the request and forward it to his/her group manager with a recommendation. The group manager will then immediately forward the request to the Area Manager with a recommendation.

      Note:

      These actions can be conducted by fax or secure email.

    3. The Area Manager must approve the written request to extend the ten day period. The Area Manager may prescribe the manner and the extent of documentation needed for this approval.

  12. If the taxpayer agrees with the issues and facts stated in the Technical Advice Notification, that letter will be includible in the formal request for technical advice package.

  13. If the taxpayer disagrees with the agent’s statement of issues and facts in the Technical Advice Notification, the taxpayer should identify each point of disagreement and state the reasons for disagreement in writing. The taxpayer’s written statement should respond completely to the Technical Advice Notification and must include a written signature of a duly authorized individual on behalf of the taxpayer.

  14. If the taxpayer’s written statement is not received or is incomplete, the agent may advise the taxpayer that the formal request for technical advice will go forward with the information available, but if the taxpayer supplies additional information, it will not necessarily be denied if the agent has already submitted the formal request.

  15. If the agent disagrees with the issues and facts presented in the taxpayer’s written statement, the agent will make every effort to resolve any disagreement over the issues and facts with the taxpayer.

  16. If an agreement on the issues and facts cannot be reached between the agent and the taxpayer, the agent will submit a written notice of disagreement to the taxpayer.

  17. The taxpayer will have ten calendar days to respond to the written notice of disagreement according to section 11.04 of the "Annual Revenue Procedure." The Area Manager has the authority to grant an extension of the ten day period.

  18. All statements and correspondence between the agent and the taxpayer in connection with disagreement over the issues or facts will be included in the formal request for technical advice package.

4.71.13.5.3  (05-19-2014)
Taxpayer Initiated Requests For Technical Advice

  1. Taxpayers may initiate a request for a TAM by submitting a written statement to the agent that includes the taxpayer’s reasons for requesting the TAM.

    1. The statement should include the information specified in section 10 of the "Annual Revenue Procedure."

    2. The request must include a written signature of a duly authorized individual on behalf of the taxpayer.

  2. Upon receipt of the taxpayer’s written statement, the agent will determine whether issuance of a TAM is warranted based on the criteria of sections 4, 5, 6 and 8 of the "Annual Revenue Procedure" and his/her own knowledge of the case.

  3. If upon receipt of the taxpayer’s written statement the agent disagrees with the taxpayer’s statements of issues and facts, the agent should respond with a written notice of disagreement to the taxpayer. This response is required even if it is determined that technical advice is not warranted.

  4. The taxpayer will have ten calendar days to respond to the agent’s written notice of disagreement in accordance with section 11.04 of the "Annual Revenue Procedure." Authority to extend the ten day period rests with the Area Manager.

  5. After the agent evaluates all documents and determines whether a TAM is warranted, he/she will prepare written summary of the issues, specifically for the group manager and the Area Manager, explaining why the taxpayer’s request for a TAM should be approved or denied, and a recommendation.

  6. The agent will immediately forward the summary and a copy of the taxpayer’s written statement to his/her group manager by fax or secured email.

  7. The group manager will then immediately forward the agent’s summary and a copy of the taxpayer’s written statement with his/her recommendation to the Area Manager.

  8. The Area Manager may prescribe the manner and the extent of additional documentation needed for this approval.

  9. The Area Manager may deny a taxpayer initiated request for a TAM on the basis of material disagreement over issues and/or facts.

  10. If the Area Manager approves the taxpayer’s request for a TAM, the formal request for technical advice package will include the taxpayer’s written statement and all other statements and correspondence between the agent and the taxpayer in connection with any disagreement over issues and facts.

  11. If the Area Manager denies the taxpayer’s request for a TAM, the agent will inform the taxpayer.

  12. Refer to section 12 of the "Annual Revenue Procedure" for procedures if the taxpayer disagrees with this decision.

4.71.13.5.4  (05-19-2014)
Requests For Pre-submission Conference

  1. Requests for pre-submission conferences are required for all TAM requests, except for "mandatory TAMs" described above in IRM 4.71.13.5.1.

  2. A pre-submission conference is conducted with EP Technical, the agent, the group manager and the taxpayer.

  3. The purpose of the conference is to help facilitate agreement on the issue.

  4. The factual information should include any and all collateral issues in the request so that EP Technical can provide the parties with an expeditious response. For detailed instructions on pre-submission conference procedures refer to section 9 of the "Annual Revenue Procedure."

  5. If the Area Manager approves a request for Technical Advice, the agent must submit a request for pre-submission conference to EP Technical using secured email to William Hulteng, Manager, EP Technical, at William.Hulteng@irs.gov. To the extent any part of this document cannot be emailed, fax it to 202-317-8810, or sent by express mail or private delivery service to:
    Employee Plans Internal Revenue Service
    Attn.: SE:T:EP:RA
    111 Constitution Ave., NW-NCA
    Washington, DC 20224

  6. Include the following in the request for pre-submission conference:

    • A cover memo, including contact information, requesting a technical advice pre-submission conference

    • The name of the office expected to have jurisdiction over the request for a TAM. For example, the EP Examination Group and Area

    • A copy of the area manager’s approval

    • A list of representatives from each IRS function known to the agent that he/she expects to attend the pre-submission conference

    • A brief explanation of the primary issue.

      Note:

      The factual information should cover all collateral issues for which EP Exam is seeking technical advice from EP Technical. For detailed instructions on pre-submission conference procedures refer to section 9 of the "Annual Revenue Procedure."

  7. EP Technical will contact the examining agent within five business days of receipt of the request to schedule a pre-submission conference.

  8. The pre-submission conference (most likely by telephone) should be held within 30 calendar days after agent is contacted.

  9. EP Technical will arrange the pre-submission conference call and notify all parties involved of the date, time and conference call number.

  10. No later than ten business days before the scheduled pre-submission conference, the agent should submit:

    1. A statement of issues that the parties would like to discuss.

    2. A statement of pertinent facts.

    3. A statement of the facts in dispute, if any.

    4. Any legal analysis, authorities or background documents that could facilitate the understanding of the issues to be discussed. (This need not be fully developed as there will be an analysis that will ultimately accompany the formal request for a TAM).

    5. A copy of Form 2848, Power of Attorney and Declaration of Representative.

  11. If it is determined during the pre-submission conference that technical advice is not warranted, then the agent should continue to process the case to completion under normal procedures.

  12. If it is determined during the pre-submission conference that technical advice is warranted, then the agent should continue to prepare and submit the formal technical advice package.

4.71.13.5.5  (05-19-2014)
Preparation of the Technical Advice Package

  1. Prepare a technical advice request generally consists of the following three items:

    • Form 5565, Request for Technical Advice – TE/GE

    • A statement of the issues, facts, law, government’s position, and taxpayer’s position

    • Supporting documentation

      Note:

      The agent should tab and index all supporting documentation required under Item 13 of Form 5565, as well as any others being submitted by the agent or the taxpayer. The index should be the first page after the Form 5565, followed by the attachments.

      Note:

      See IRM 4.71.13 Exhibit 2 at IRM 4.71 - Employee Plans Examination Exhibits for an example of Form 5565.

  2. Unless specifically requested, do not send the exam case file to EP Technical.

  3. Retain original documents in the exam case file. Copies of these documents will be used for the technical advice package.

  4. Include only relevant information, documents, correspondence etc. related to the issue(s) in the request.

  5. Remember that EP Technical will base their decision on the information provided with the technical advice package, so it is important that you include all relevant information and clearly articulate the issue(s).

  6. Retain a copy of the above items for reference if EP Technical has any questions concerning the request.

  7. Prepare one copy of a full and complete technical advice package containing items a, b and c from (1) above and one additional copy consisting only of items a and b from (1) above.

  8. Ensure that a minimum of one year remains on the statute of limitations for all returns prior to submitting the request.

  9. Once the technical advice package is assembled, tabbed and indexed, route the package through your group manager to Special Review who will submit the technical advice request to EP Technical in Washington, D.C.

  10. Attach Form 3198-A, TE/GE Special Handling Notice, to the outside folder(s) containing the technical advice package.

    1. Write "EP Examinations Special Review - Technical Advice Request" across the top of Form 3198-A.

    2. Send the package to:
      Internal Revenue Service
      Attn: Manager, EP Examinations Special Review
      31 Hopkins Plaza, Room 1550
      Baltimore, MD 21201

4.71.13.5.6  (05-19-2014)
Electronic Submissions

  1. An agent may electronically submit the technical advice package, except for the Form 5565, as an option.

    1. An agent is not expected to convert hardcopy documents into electronic format to email data.

    2. Data already existing in electronic formats may be transmitted, if desired.

  2. Executed legal documents and penalty of perjury statements should be transmitted in hard copy.

  3. Follow these guidelines to submit information electronically:

    1. Email the electronic submission material related to the actual TAM (after the pre-submission conference) to the EP Examinations Technical Advice Coordinator at Brian.Hohler@irs.gov with "Tech Advice" in the subject line.

    2. Virus-scan the files attached using Microsoft Word, Excel or Access or Adobe Acrobat software prior to forwarding.

    3. Encrypt the email transmission of the files inside the IRS firewall using secure messaging (encryption).

      Note:

      Do not encrypt the attached files.

    4. Retain electronic data, other than Form 5565, in folders cross-referenced by folder name or linked to the Form 5565 similarly to hard copy data.

    5. Transmit the Form 5565 as a stand-alone file in your email.

    6. Send hard copies overnight on the business day before you submit the TAM to the Manager, EP Examination Special Review. This will make it easier to associate hard copy data (the attachments) with your an electronic submission.

4.71.13.5.7  (05-19-2014)
Technical Advice Procedures - EP Special Review

  1. The EP Examination Technical Advice Coordinator (the Coordinator) will review the technical advice package.

    1. The purpose of this review is to ensure that the request meets the requirements of the "Annual Revenue Procedure."

    2. The Coordinator will ensure that the package is well put together and complete.

    3. The Coordinator will not review the entire examination.

    4. This review will not determine if the issue is appropriate for technical advice. EP Technical is responsible for that decision.

  2. If the technical advice request is complete, Special Review will be forward it to the Area Manager, EP Examinations, Programs and Review for approval.

  3. After approval by the Area Manager, EP Examinations, Programs and Review, Special Review will return a copy of the signed Form 5565 to the originating group and ship the technical advice package to EP Technical.

  4. If the submission from the group is complete, Special Review will process the technical advice package within ten to fifteen workdays from the date received by EP Special Review.

  5. If Special Review determines additional information is required, they will submit the TAM to EP Technical within three workdays of the receipt of the additional information.

  6. The signed Form 5565 must be sent secured email to William Hulteng, Manager, EP Technical, at William.Hulteng@irs.gov.

  7. Any part of the technical advice package that cannot be emailed can be faxed to 202-317-8810, or sent by express mail or private delivery service to:
    Internal Revenue Service - Employee Plans
    Attn.: SE:T:EP:RA
    111 Constitution Ave., NW-NCA
    Washington, DC 20224

4.71.13.5.8  (05-19-2014)
Responsibilities of the Exam Agent While Technical Advice is Pending

  1. During the technical advice process, the examining agent will have "ownership" of the case and will maintain possession of all exam case files involved in the technical advice and all related exam files.

    Note:

    A rare exception would be if there is if there is a short statute that is in danger of expiring. The group manager should contact the Technical Advice Coordinator and the Manager, EP Mandatory Review if a case file under technical advice or a related case file has a short statute and the agent is unable to secure a statute extension.

  2. The examining agent will maintain possession of all original documents secured during the examination.

  3. The examining agent is always responsible for ensuring that the statute of limitations is protected on the lead exam and any related case while EP Technical considers the technical advice request.

  4. The examining agent is responsible for updating the inventory control systems upon receipt of the approved Form 5565 (See IRM 4.71.13.5.7(3)).

    1. Update the Audit Information Management System (AIMS) and Reporting Compliance Case Management System (RCCMS) to reflect the case in status 38, Suspense, All Other.

    2. The group number on AIMS and RCCMS should always be that of the group retaining physical possession of the original case files.

    3. The agent number on AIMS and RCCMS should always be that of the agent retaining physical possession of the original case files.

    4. AIMS and RCCMS should continue to reflect case control at the group level.

  5. The agent must issue Letter 1014-A, Taxpayer Notification of Examination Delay, to the taxpayer to formally notify them of the technical advice and the corresponding delay in the examination. See IRM 4.71.13 Exhibit 3 at IRM 4.71 - Employee Plans Examination Exhibits for an example of a Letter 1014-A.

  6. The examining agent will complete the case time charges on his/her Form 6490, TE/GE Technical Time Report, using WebETS.

  7. If an agent receives any additional information for an issue pending technical advice, he/she will route the information to EP Technical through the EP Examination Technical Advice Coordinator in Special Review.

4.71.13.5.9  (05-19-2014)
Obtaining Status Updates of the TAM

  1. The taxpayer or the taxpayer's representative may obtain information on the status of the request for a TAM by contacting the EP agent who requested the TAM.

    • See section 16.07 of the "Annual Revenue Procedure" concerning the time for discussing the tentative conclusion with the taxpayer's representative.

    • See section 17.03 of the "Annual Revenue Procedure" regarding discussions of the contents of the TAM with the taxpayer or the taxpayer's representative.

  2. EP Technical will give status updates of the TAM once a month to the Manager, EP Special Review.

  3. In addition, an Area Manager may get current information on the status of the TAM request by calling the person whose name and telephone number are shown on the acknowledgment of receipt of the request for the TAM.

  4. EP Technical will notify EP Special Review when the TAM is mailed.

4.71.13.5.10  (05-19-2014)
Responsibilities of EP Special Review Upon Receipt of TAM

  1. Responses to technical advice requests will be sent from EP Technical to the Manager, EP Special Review.

  2. EP Special Review will forward a response to the exam group within three business days of receiving EP Technical’s response. A copy of EP Technical’s response will be forwarded to the Area Manager of the exam group.

  3. EP Technical will prepare and send a redacted electronic copy of the TAM to the Manager, EP Special Review.

  4. If EP Special Review doesn't receive a redacted electronic copy of the TAM from EP Technical within a reasonable time, the Technical Advice Coordinator will request a copy from the EP Technical group manager who is responsible for the TAM.

  5. The request for a redacted TAM must state "In order for EP Special Review to comply with Section 508, the requested redacted copy of a Technical Advice Memorandum must be electronically submitted in Word document format. PDF files, scanned documents and facsimiles of documents cannot be accepted as these files and documents are not Section 508 compliant when posted to the intranet or internet."

4.71.13.5.11  (05-19-2014)
Effect of the TAM

  1. EP Technical's reply to a TAM request is in two parts. Each part identifies the taxpayer by name, address, identification number and year or years involved.

  2. The first part of the reply is a transmittal memorandum.

    1. The transmittal memorandum, which is sent with the technical advice memorandum, should never be released to the taxpayer.

    2. Coordinate any request, by any party, for a copy of the transmittal memorandum with the agent’s Disclosure Officer.

    3. In unusual cases, the transmittal memorandum gives the EP Examinations office other information that under the nondisclosure statutes or for other reasons may not be discussed with the taxpayer.

  3. The second part is the TAM, which contains:

    1. A statement of the issues,

    2. A statement of the facts pertinent to the issues,

    3. A statement of the pertinent law, tax treaties, regulations, revenue rulings, other precedents published in the Internal Revenue Bulletin and court decisions,

    4. A discussion of the rationale underlying conclusions reached by EP Technical, and

    5. The conclusions of EP Technical.

  4. If a TAM is subject to IRC 6110, a notice under IRC 6110(f)(1) of intention to disclose the TAM (including a copy of the version proposed to be open to public inspection and notations of third party communications under IRC 6110(d) will be enclosed.

  5. A TAM involving criminal or civil fraud investigations or a jeopardy or termination assessment is not furnished to the taxpayer.

  6. The Area Manager must process the taxpayer's case on the basis of the conclusions in the TAM unless he or she requests EP Technical to reconsider the TAM.

  7. A TAM applies only to the taxpayer for which technical advice was requested.

  8. A taxpayer may not rely on a TAM issued by the IRS for another taxpayer.

4.71.13.5.12  (05-19-2014)
Responsibilities of the Exam Agent Upon Receipt of the TAM

  1. The group retaining physical possession of the original case files is responsible for updating its inventory control systems upon receipt of the TAM.

    1. AIMS and RCCMS must be updated to return the case to status 12, Assigned with Taxpayer Contact.

    2. The group number on AIMS and RCCMS should always be that of the group retaining physical possession of the original case files.

    3. The agent number on AIMS and RCCMS should always be that of the agent retaining physical possession of the original case files.

  2. If the Area Manager and group manager concur with EP Technical’s recommendations, and don't request reconsideration, the agent will send a copy of the TAM by certified mail to the taxpayer and its designated representatives within 30 days after the exam group receives the TAM.

  3. If the TAM pertains to issues that affect the qualified status of the plan, then the TAM will be provided to the taxpayer without any deletions, omissions or sanitizing marks.

  4. If the TAM pertains to issues that do not affect the qualified status of the plan, then the taxpayer will receive:

    1. A cover letter describing the enclosed attachments

      Note:

      The cover letter should emphasize the 20-day response period for additional IRC 6110 deletions.

    2. An exact copy of the TAM as received from EP Technical

    3. A copy of the TAM with proposed deletions under IRC 6110

    4. Notice 438, Notice of Intention to Disclose

    5. If applicable, waiver form(s) soliciting agreement for the issues covered by the TAM, including Form 4549-E, Income Tax Discrepancy Adjustments; Form 870, Waiver of Restrictions on Assessment and Collection of Deficiency in Tax and Acceptance of Overassessment; Form 2297, Waiver of Statutory Notification of Claim Disallowance; Form 3363, Acceptance of Proposed Disallowance of Claim for Refund or Credit; or Form 2504, Agreement to Assessment and Collection of Additional Tax and Acceptance of Overassessment.

      Note:

      See IRM 4.71.13 Exhibit 4 at IRM 4.71 - Employee Plans Examination Exhibits for an example of a Notice 438.

4.71.13.5.13  (05-19-2014)
Notice 438, Notice of Intention to Disclose

  1. A notice under IRC 6110(f)(1) of intention to disclose the TAM (including a copy of the version proposed to be open to public inspection and notations of third party communications under IRC 6110(d)) will accompany a TAM subject to IRC 6110.

  2. If Notice 438 is required, EP Technical will send it to the agent with the TAM and all the information that the agent will need to complete, before sending it to the taxpayer. See IRM 4.71.13 Exhibit 4 at IRM 4.71 - Employee Plans Examination Exhibits for an example of a Notice 438.

  3. Notice 438 informs taxpayers of their right to request additional deletions from the sanitized TAM.

  4. In accordance with Notice 438, the Office of Chief Counsel for Disclosure will be the primary contact for the taxpayer over this matter.

  5. The agent will not be involved in the IRC 6110 deletion process after mailing Notice 438 except to provide direction to the taxpayer, as needed.

  6. Prior to mailing the TAM Package, the agent will complete Notice 438 by filling in the name of the taxpayer and the required dates. The agent will input the dates as follows:

    1. "Mailing date of this notice" : Enter the certified mailing date.

    2. "Last date to request IRS review" : Enter the 20th day after the date of mailing the notice. If the 20th day falls on a weekend or holiday, then enter the next business day.

    3. "Last Date to petition Tax Court" : Enter the 60th day after the date of mailing the notice. If the 60th day falls on a weekend or holiday, then enter the next business day.

    4. "Date open to public inspection" : Enter the Friday preceding the 90th day. Enter the date after the date of mailing the notice. If that Friday falls on a holiday, then enter the previous business day.

  7. On the same day the TAM is mailed to the taxpayer, the agent will mail a copy of the modified TAM package (without the items listed in IRM 4.71.13.5.12(4)(e)) to:
    Internal Revenue Service
    Attention: CC:PA:LPD:DLS, Room 5201
    Ben Franklin Station
    Post Office Box 7604
    Washington, D.C. 20044

4.71.13.5.14  (05-19-2014)
Conclusion of the Case When Technical Advice Is Received

  1. After the agent issues the TAM to the taxpayer, the case will be closed on the basis of the conclusions of the TAM.

    1. A copy of the TAM should be attached to the RAR that refers to it.

    2. Normal agreed or unagreed closing procedures should be followed as applicable.

  2. All cases involving technical advice are not subject to mandatory review unless they meet one of the other criteria for mandatory review.

  3. Disposal code 10 (generally entered by review staff) may be used to close an examination in which there is an unagreed issue and the taxpayer is unable to file a protest to Appeals because the issue was the subject of a Technical Advice Memorandum.

  4. When the case is prepared for closing to Examinations Special Support and Processing (ESSP), the group manager must ensure that the agent indicates on a Form 3198-A that the case had been in suspense, status code 38. Attach Form 3198-A to the front of the case file before it is closed.

  5. Make a notation in the comment box in RCCMS indicating that this case was previously in status 38, and there is a Form 3198-A to alert that a move to status 55, Cases Previously Held in Suspense, will be needed.

  6. The Closing Function Tax Examiner closing the case in ESSP must update the case from status 51, TE/GE – ESP, to status 55 first and then to status 90, Closed, when it closes.

    Note:

    Status code 55 must be input immediately prior to placing the case in status 90. This tells AIMS that the return should not be counted against the official table upon which cycle time is measured.


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