4.71.13  Technical Assistance and Technical Advice Requests

Manual Transmittal

August 24, 2015

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 Mandatory Review (Mandatory Review) and EP Special Review (Special Review), as well as in obtaining technical advice.

Material Changes

(1) Effective January 2, 2015, the authority for issuing technical advice (including technical advice memoranda (TAMs)) has been transferred from Employee Plans Technical (EP Technical) to the Tax Exempt and Government Entities (TE/GE) Office of Associate Chief Counsel (Associate Chief Counsel). IRM 4.71.13.5 has been revised accordingly.

(2) IRM 4.71.13.2, Assistance from Rulings and Agreements, was eliminated.

(3) Editorial changes, including revisions to reflect plain language requirements, were made throughout the document.

Effect on Other Documents

This supersedes IRM 4.71.13 dated May 19, 2014.

Audience

Tax Exempt and Government Entities
Employee Plans

Effective Date

(08-24-2015)


Robert S. Choi
Director, Employee Plans
Tax Exempt and Government Entities

4.71.13.1  (08-24-2015)
Requesting Technical Assistance and Technical Advice

  1. Agents may secure technical assistance when the need arises. They can get help from:

    1. The Area field office of Division Counsel (Area Counsel)

    2. EP Special Review (Special Review)

    3. EP Mandatory Review (Mandatory Review)

  2. Agents may also obtain technical advice (tech advice) related to EP examinations from the TE/GE Office of Associate Chief Counsel (Associate Chief Counsel). See IRM 7.1.5, Employee Plans Technical Advice Procedures (as updated for Rev. Proc. 2015-2), IRM 4.71.13.4, Technical Advice Procedures, and Rev. Proc. 2015-2 (updated annually).

    Note:

    Effective January 1, 2015, Associate Chief Counsel assumed the authority for issuing tech advice (Technical Advice Memoranda (TAM))

  3. Technical advice is a written advice or guidance memo given by Associate Chief Counsel 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.

    3. Any other matter under EP Examination's jurisdiction.

      Note:

      Request a TAM when the application of the law to the facts involved in your audit is unclear. The question must be on "the interpretation and proper application of tax laws, tax treaties, regulations, revenue rulings, notices, or other precedents to a specific set of facts that concerns the treatment of an item in a period under examination" .

  4. EP Quality Assurance offers help with questions about determination cases. Send questions to: *TE/GE-EP-Determ Exam Requests.

4.71.13.2  (08-24-2015)
Assistance from Area Counsel

  1. Make informal, and if needed, written requests for assistance to Area Counsel for:

    1. Legal interpretations

    2. Case development for "unagreed" issues

  2. Obtain approval from your group manager before contacting Area Counsel.

  3. You can ask Special Review for help when preparing a request for Area Counsel assistance.

  4. When Area Counsel responds, the group manager will send a sanitized copy to the Manager, Special Review, who will determine if Area Counsel’s guidance impacts other cases.

    Note:

    Remove the taxpayer's name and taxpayer identification number (TIN) to create a sanitized copy.

  5. If the Manager, Special Review determines that Area Counsel’s guidance impacts other cases, he or she will prepare a memo describing the guidance to distribute to EP Exam agents and their managers.

    Note:

    Area Counsel can help EP Special Review to draft the memo.

  6. In general, request assistance from the Area Counsel office covering the taxpayer's state. However, if your case is part of a special project, your request is assigned to a project attorney, regardless of the taxpayer's location.

  7. 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 are:

      TE/GE Division 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 are:

      TE/GE Division 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 are:

      TE/GE Division 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 are:

      TE/GE Division 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 are:

      TE/GE Division 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 are:

      TE/GE Division Counsel
      600 17th St.
      Suite 300N
      Denver, CO 80202
      720-956-4018

  8. Generally, an opinion from Area Counsel is confined to the specific facts and circumstances of a case. You shouldn't apply the opinion to other cases without contacting Counsel.

  9. Whenever you want to pursue the six year statute of limitations (SOL) for a case, you must obtain written approval from Area Counsel. You must retain a copy of the written response in the case file.

4.71.13.3  (08-24-2015)
Assistance from Mandatory Review and Special Review

  1. Reviewers in Mandatory Review and Special Review will assist agents and managers with technical and procedural issues.

  2. Mandatory Review offers help when the agent or manager:

    1. Needs help on anticipated "unagreed" exam issues.

    2. Has procedural questions about IRM 4.71 (EP Examination Procedures).

    3. Has questions about a special exam project coordinated by a Mandatory Reviewer.

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

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

    2. Special Review doesn't make specific case related decisions as each case may have unique facts and circumstances.

  4. When submitting a question through Ask the Reviewer:

    1. State the question clearly.

    2. List the documents you researched.

    3. Summarize any suggestions from the group manager.

      Note:

      EP Special Review generally responds within two business days.

  5. 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.

  6. 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.

4.71.13.4  (08-24-2015)
Technical Advice Procedures

  1. These technical advice (tech advice) procedures follow Rev. Proc. 2015-2 guidelines (updated annually) and will provide agents with guidance when requesting a Technical Advice Memorandum (TAM) from the TE/GE Office of Associate Chief Counsel (Associate Chief Counsel) to a case under exam.

    Note:

    Effective January 1, 2015, the TE/GE Office of Associate Chief Counsel in Washington D.C. issues TAMs instead of EP Technical.

  2. These procedures cover the agent’s responsibilities through the entire TAM process.

  3. This IRM supplements the general tech advice procedures in IRM 7.1.5, Employee Plans Technical Advice Procedures as updated by Rev. Proc. 2015-2.

  4. Tech advice is defined as a written advice or guidance memorandum furnished by Associate Chief Counsel 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.

      Note:

      Request a TAM when the application of the law to the facts involved in your exam is unclear. The question must be on "the interpretation and proper application of tax laws, tax treaties, regulations, revenue rulings, notices, or other precedents to a specific set of facts that concerns the treatment of an item in a period under examination."

  5. Tech advice is advice furnished by Associate Chief Counsel through a technical advice memorandum (TAM) that responds to any request, you submit under Rev. Proc. 2015-2, for assistance on any technical or procedural question that develops during your EP exam.

  6. Contact the Area Counsel office responsible for the state in which the taxpayer is located before requesting a TAM. See paragraph (7) in IRM 4.71.13.2, Assistance from Area Counsel.

    Note:

    You must receive support from Area Counsel before proceeding with a TAM. As discussed below, Area Counsel with assist you with the submission of the TAM request.

  7. Technical advice requests are prepared on Form 4463, Request for Technical Advice Memorandum. See IRM 4.71.13 Exhibit 1, Request for Technical Advice Memorandum, at IRM 4.71 - Employee Plans Examination Exhibits for an example of a completed Form 4463.

  8. Submit all TAM requests to Associate Chief Counsel through Area Counsel.

4.71.13.4.1  (08-24-2015)
Mandatory Technical Advice

  1. Tech advice must be requested for the following issues:

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

    2. 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

      Note:

      An employee benefit plan that only covers owners and their spouses may not be subject to Title I of the Employee Retirement Income Security Act of 1974. If a plan is not subject to Title I of ERISA, a request for tech advice is not required. If there are concerns as to whether a plan is subject to Title I of ERISA, Area Counsel may be contacted for assistance.

    3. 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

  2. Requests for IRC 7805(b) relief is not listed in section 3.04 of Rev. Proc. 2015-2 as requiring mandatory technical advice; however, requests for IRC 7805(b) relief must be discussed with Area Counsel, and the advice received from Area Counsel should be followed. See section 14 of Rev. Proc. 2015-2 regarding IRC 7805(b) relief.

4.71.13.4.2  (08-24-2015)
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. If you think that technical advice is warranted, discuss the issue with your group manager.

  3. If your group manager agrees that technical advice may be warranted, the group manager will contact Area Counsel to discuss the issue.

    Note:

    Area Counsel must be consulted prior to requesting a TAM.

    Note:

    Follow the procedures in IRM 4.71.13.2, Assistance from Area Counsel, for contacting Area Counsel

    .

  4. After consulting with Area Counsel and obtaining their approval to request a TAM, the group manager must obtain written approval from his/her Area Manager and the Director, EP Exam before requesting a TAM.

    Note:

    At this point in the process, confirmation of approval by the Area Manager and the Director, EP Exam should be done through email.

  5. If the Area Manager and the Director, EP Exam agree that a TAM should be pursued, a Pre-Submission Conference must be held with Associate Chief Counsel in accordance with IRM 4.71.13.4.4, Pre-submission Conference.

  6. If Associate Chief Counsel agrees during the Pre-Submission Conference that a TAM should be requested, the agent will prepare Form 4463 with attachments setting forth the:

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

    2. Applicable law and arguments in support of the position(s) of the IRS on the issue or issues

    3. Applicable law and arguments in support of the position(s) of the taxpayer on the issue or issues

      Note:

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

      Note:

      Area Counsel will assist the field group with preparation of the TAM request. See sections 7.01 and 7.06 of Rev. Proc. 2015-2.

  7. The agent will send Form 4463 to the Director, EP Exam for approval.

    Note:

    The Director, EP Exam will be the approving official on Form 4463.

  8. The agent must notify the taxpayer of the TAM request in writing using Letter 1399-A, Technical Advice Notification. The agent should also call the taxpayer when Letter 1399-A is mailed. See IRM 4.71.13 Exhibit 2 at IRM 4.71 - Employee Plans Examination Exhibits for an example of Letter 1399-A.

  9. 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.

  10. The taxpayer has five calendar days to respond to the Technical Advice Notification. If the taxpayer requests additional time:

    1. The taxpayer must make a written request to extend the five day period before expiration of the five 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 five day period, the agent will immediately review the request and forward it to his/her group manager with a recommendation.

      Note:

      These actions can be conducted by fax or secure email.

    3. The group manager must approve the written request to extend the five day period. The group manager may prescribe the manner and the extent of documentation needed for this approval.

  11. If the taxpayer agrees with the issues and facts stated in the Technical Advice Notification, he or she should acknowledge agreement in writing.

    Note:

    Include the taxpayer's letter in the TAM request package.

  12. 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.

    Note:

    The agent and taxpayer have ten calendar days to resolve disagreements. See section 7.06 of Rev. Proc. 2015-2.

  13. 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.

  14. 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.

  15. 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.

  16. The taxpayer will have five calendar days to respond to the written notice of disagreement according to section 7.06 of Rev. Proc. 2015-2.

    Note:

    The group manager has the authority to grant an extension of the five day period.

  17. 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 the relevant facts relating to the request for technical advice, and such facts are true, correct, and complete."

  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 TAM request.

    Note:

    The Area Counsel attorney will assist the field office with preparation of the memorandum for Associate Chief Counsel, highlighting the material factual differences.

  19. If the TAM request is for a case involving a prohibited transaction, as defined in IRC 4975(c)(1), or a violation of the exclusive benefit rule under IRC 401(a)(2) which is subject to review by the Department of Labor under section 103 of Reorganization Plan No. 4 of 1978, then the agent must make a referral on Form 6212-B, Examination Referral Checksheet B, to the Department of Labor prior to submitting the TAM to Associate Chief Counsel. Follow the Procedures in IRM 4.71.6.8, Making Referrals to the Department of Labor (DOL).

4.71.13.4.3  (08-24-2015)
Taxpayer Initiated Requests For Technical Advice

  1. Per section 5.02 of Revenue Procedure 2015-2 the taxpayer may initiate a request for a TAM orally or by submitting a written statement to the agent that includes the taxpayer’s reasons for requesting the TAM.

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

  3. After you evaluate all documents and determines whether a TAM is warranted, prepare a 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 making a recommendation.

  4. Immediately forward the summary and a copy of the taxpayer’s written statement to your group manager by fax or secured email.

  5. Upon receipt, 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.

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

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

  8. If the Area Manager approves the taxpayer’s request for a TAM, he or she will solicit approval from the Director, EP Exam.

  9. If the Area Manager and Director, EP Exam both approve of the TAM, they will both inform the group manager of the decision in writing.

  10. The formal TAM request 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 in writing.

  12. The taxpayer may appeal the decision to deny the taxpayer’s TAM request by submitting to the agent, within 30 calendar days after notification that the request was denied, a written statement of the reasons why the matter should be referred to Associate Chief Counsel. The statement should include a description of all pertinent facts (including any facts in dispute); a statement of the issue that the taxpayer would like to have addressed; a discussion of any relevant statutory, regulatory, or administrative provisions, tax treaties, case law, or other authority; and an explanation of the taxpayer’s position and the need for technical advice.

    Note:

    Any extensions of the 30-day period must be requested in writing and must be approved by the Director, EP Exam.

  13. Upon receipt of the written request from the taxpayer to appeal the decision to deny the TAM request, the group manager will forward the taxpayer’s written statement, along with the field office’s statement of why the issue should not be referred to Associate Chief Counsel for technical advice, to the Director, EP Exam.

  14. If the Director, EP Exam agrees with the taxpayer that a TAM should be requested, the agent will inform the taxpayer of the decision and will submit the TAM request in accordance with IRM 4.71.13.4.2, Initiating A Request For Technical Advice.

  15. If the Director, EP Exam determines that a TAM is not warranted, the agent will inform the taxpayer in writing of the denial of the request and the reasons for the denial.

  16. If the taxpayer disagrees with the Director, EP Exam's decision to deny the TAM request, the taxpayer may request a review by the Commissioner, TE/GE.

    Note:

    The Commissioner, TE/GE has 45 days to deliver a final decision in accordance with section 5.04 of Rev. Proc. 2015-2.

4.71.13.4.4  (08-24-2015)
Pre-submission Conference

  1. After TAM approval is secured from Area Counsel, the Area Manager and the Director, EP Exam, a pre-submission conference will be scheduled.

  2. A pre-submission conference is required for all TAM requests.

  3. A pre-submission conference is conducted with an Associate Chief Counsel attorney, the Area Counsel attorney, the agent, the group manager and the taxpayer.

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

  5. Prior to the scheduled pre-submission conference, the agent must:

    1. Prepare his/her own statement of pertinent facts and issues

    2. Solicit from the taxpayer their respective statement of pertinent facts and issues

    3. Make sure Form 2848, Power of Attorney and Declaration of Representative, is secured for the representative involved with the TAM and that the Form 2848 covers all applicable periods.

    Note:

    The legal analysis provided in the parties’ statements should be sufficient to enable Counsel to be reasonably informed about the subject matter.

  6. The agent and the taxpayer must exchange proposed statements of the pertinent facts and issues. The proposed statements should include any facts in dispute, the issues that the parties intend to discuss, any legal analysis and supporting authorities, and any other background information that the parties believe would facilitate Associate Chief Counsel’s understanding of the issues to be discussed during the conference.

    Note:

    Failure of the taxpayer to provide a statement of pertinent issues and facts shall not be allowed to unduly delay the scheduling of the pre-submission conference. If it is not provided within a reasonable period of time, the conference may be scheduled without the statements.

  7. The agent will email the following items to the Area Counsel attorney:

    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. The taxpayer's statement of pertinent facts and issues

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

  8. Area Counsel will review the information and will email the information received from the agent to the Associate Chief Counsel TSS4510 mailbox, requesting a pre-submission conference. Area Counsel will also 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 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 Associate Chief Counsel.

      Note:

      The assigned branch of the Associate Chief Counsel office must receive the pre-submission materials at least 10 business days before the conference is to be held.

  9. To the extent any part of the information in paragraph (7) cannot be emailed, Area Counsel will fax it to 202-317-6718, or send the package by express mail or private delivery service to:

    Internal Revenue Service
    Attn.: CC:PA:LPD:TSS,
    1111 Constitution Ave., NW
    Room 5336
    Washington, DC 20224

  10. Associate Chief Counsel will contact the taxpayer, the agent, and the Area Counsel attorney within five business days of receipt of the request to schedule a pre-submission conference.

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

  12. Associate Chief Counsel will arrange the pre-submission conference call and notify all parties involved of the date, time and conference call number.

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

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

  15. During the pre-submission conference, Counsel may raise new issues in addition to those submitted by the field office and the taxpayer.

4.71.13.4.5  (08-24-2015)
Preparation of the Technical Advice Package

  1. The agent will prepare the technical advice package with the assistance of Area Counsel.

  2. The technical advice package generally contains the following:

    1. Form 4463.

    2. A detailed explanation of the issues the issues, facts, law, government’s position, and taxpayer’s position (as further explained in paragraph (3))

    3. Supporting documentation

    4. Documentation supporting TAM approval by the Area Manager and the Director, EP Exam

    Note:

    Whenever possible, all documents should contain the case number and name of the Associate Chief Counsel attorney assigned to the pre-submission conference for the TAM request.

    Note:

    Make sure Form 4463 reflects the Director, EP Exam as the approving official and includes the Director's address. Associate Chief Counsel will mail the TAM to this address.

  3. Every request for technical advice must include a description of the facts, issues, applicable law, and arguments supporting the taxpayer’s position on the issues and the IRS’s position on the issues.

    1. If the taxpayer and the field office disagree about ultimate findings of fact or about the relevance of facts, all of the facts should be included with an explanation that highlights the areas of disagreement.

    2. The memorandum must include an explanation of the taxpayer’s position. This explanation must include a discussion of any relevant statutory provisions, tax treaties, court decisions, regulations, revenue rulings, revenue procedures, notices, and any other authority supporting the taxpayer’s position.

    3. The memorandum must also include a similar explanation of the position of the IRS. This explanation must include a discussion of any relevant statutory provisions, tax treaties, court decisions, regulations, revenue rulings, revenue procedures, notices, and any other authority supporting the IRS position.

    4. Both the IRS and the taxpayer should comment on any existing or pending legislation, tax treaties, regulations, revenue rulings, revenue procedures, or court decisions contrary to their respective positions.

    5. If either party determines that there are no authorities contrary to its position, that statement should be noted in the memorandum. The field office submits the request for technical advice.

  4. Unless specifically requested, the exam case file will not be sent to Associate Chief Counsel with the TAM request.

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

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

  7. Remember that Associate Chief Counsel 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).

  8. Retain a copy of the technical advice package for reference if Associate Chief Counsel has any questions concerning the request.

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

  10. Send a courtesy copy of Form 4463 to Special Review. Form 4463 can be sent electronically to Special Review's Tech Advice mailbox at *TE/GE-EP-Tech Adv.

  11. Once the technical advice package is assembled, tabbed and indexed, route the package through your group manager to the Area Counsel attorney who will submit the technical advice package to the Associate Chief Counsel attorney assigned to the case.

    Note:

    The agent must send a paper copy of the entire TAM request package to Area Counsel.

    Note:

    Area Counsel will review the technical package before submitting it to Associate Chief Counsel.

  12. Area Counsel will submit Form 4463 and the rest of the technical advice package to the TSS4510 email address within ten business day of receipt from the agent. To the extent feasible, the accompanying documents should also be submitted to the TSS4510 email address, followed by any hard copy documents upon the request of Associate Chief Counsel.

  13. Any part of the technical advice package that cannot be emailed will be faxed to TSS4510 at 202-317-6718, or sent by express mail or private delivery service to:

    Internal Revenue Service
    Attn: CC:PA:LPD:TSS, Room 5336
    1111 Constitution Ave., NW
    Washington, DC 20224

4.71.13.4.6  (08-24-2015)
Electronic Submissions

  1. In lieu of submitting in hard copy form, except as provided for in paragraph (2), you may electronically submit the technical advice package.

    1. With the exception of documents listed in paragraph (2), you may scan all documents and submit the entire TAM electronically, but you are not required to do so.

    2. Documents already existing in electronic format may be transmitted electronically and the remaining items in hard copy, if desired.

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

  3. Email the electronic submission material related to the actual TAM to Area Counsel.

4.71.13.4.7  (08-24-2015)
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:

    The group manager will contact the Area Counsel attorney and the Manager, EP Mandatory Review when 180 days remains on the statute of limitations of the case and the agent is unable to secure a statute extension. The purpose of the call is to discuss how to proceed with the case.

  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 Associate Chief Counsel considers the technical advice request.

  4. The examining agent is responsible for updating the inventory control systems upon receipt of the approved Form 4463 from the Director, EP Exam.

    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. 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 Associate Chief Counsel through the Area Counsel attorney.

4.71.13.4.8  (08-24-2015)
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 10.02 of Proc. 2015-2 concerning the time for discussing the tentative conclusion with the taxpayer's representative.

    • See section 10.09 of Proc. 2015-2 regarding discussions of the contents of the TAM with the taxpayer or the taxpayer's representative.

  2. Associate Chief Counsel will give status updates of the TAM once a month to the Area Counsel attorney, who in turn will notify the agent of the status of the TAM request through email.

  3. When the TAM is complete, Associate Chief Counsel will mail or email the TAM to the Director, EP Exam and will send a copy of the TAM to the agent and the Area Counsel attorney.

4.71.13.4.9  (08-24-2015)
Review of the TAM by Associate Chief Counsel

  1. If Associate Chief Counsel determines that the TAM request package is deficient, the agent, the Area Counsel attorney and the Associate Chief Counsel attorney will work together to obtain the necessary information. If it the issue cannot be resolved within 7 days, Associate Chief Counsel may return the TAM request and a new TAM request may have to be submitted.

  2. Within 21 days after receipt, Associate Chief Counsel will contact the agent and/or Area Counsel to discuss any procedural and substantive issues in the case and to notify the agent whether any matters have been referred to another Associate Chief Counsel attorney for assistance.

  3. When Associate Chief Counsel is ready to issue the TAM, it will communicate its conclusions and reasoning to Area Counsel. Area Counsel may informally discuss any disagreements.

  4. If Associate Chief Counsel proposes to provide a TAM that is adverse to the taxpayer, and taxpayer has not waived its right to a conference, the taxpayer will be informed by Associate Chief Counsel of the time and place of the conference.

    1. The agent and his/her group manager will be given the opportunity to participate in that conference.

    2. Although the taxpayer is entitled to only one conference of right, Associate Chief Counsel may choose to offer additional conferences.

  5. If the taxpayer submits additional information after the conference, the agent must either provide Associate Chief Counsel with comments on the additional information or notate to Associate Chief Counsel that the agent has no comments.

  6. Before issuing the final TAM, Associate Chief Counsel will issue a preliminary TAM to the agent and to Area Counsel.

    1. If there is disagreement about any aspect of the TAM, normal reconciliation and reconsideration procedures will be followed to resolve the disagreement.

    2. The agent should refrain from discussing the TAM issues while Associate Chief Counsel processes the TAM request and issues the final TAM.

  7. When the TAM is complete, Associate Chief Counsel will mail or email the TAM to the Director, EP Exam and will send a copy to the agent and the Area Counsel attorney.

4.71.13.4.10  (08-24-2015)
Effect of the TAM

  1. Associate Chief Counsel'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 Associate Chief Counsel

    5. The conclusions of Associate Chief Counsel

  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 agent must process the taxpayer's case on the basis of the conclusions in 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.

4.71.13.4.11  (08-24-2015)
Responsibilities of the Exam Agent Upon Receipt of the TAM

  1. Upon receipt of the TAM, update AIMS and RCCMS to status 12, Assigned with Taxpayer Contact.

  2. If the Area Manager and group manager concur with Associate Chief Counsel’s recommendations, and don't request reconsideration, 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.

    Note:

    For this purpose, Letter 1014A may be used. Select paragraph 8 and enter the applicable information in the space provided.

  3. If the TAM pertains to issues that affect the qualified status of the plan, then give the TAM 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 send the taxpayer:

    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 Associate Chief Counsel

    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.

  5. The TAM takes effect when it is received by the taxpayer.

  6. Upon receipt, the agent will send a copy of the TAM to Special Review at *TE/GE-EP-Tech Adv.

4.71.13.4.12  (08-24-2015)
Notice 438, Notice of Intention to Disclose

  1. Notice 438 must be included with TAM notices subject to IRC 6110. The notice states the IRS’ 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)). See IRC 6110(f)(1).

  2. If Notice 438 is required, Associate Chief Counsel will send it to the agent with the TAM and all the information that the agent will need to complete the notice, 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. Per Notice 438, the Office of Chief Counsel for Disclosure is the primary contact for the taxpayer for this matter.

  5. The agent isn't 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, complete Notice 438 by filling in the taxpayer's name and the required dates. Input the dates:

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

    2. "Last date to request IRS review" : Enter the 20th day after the notice mailing date. 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 notice mailing date. 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 notice mailing date. If that Friday falls on a holiday, then enter the previous business day.

4.71.13.4.13  (08-24-2015)
Withdrawal of Requests for Technical Advice

  1. Once the request for a TAM has been sent to Associate Chief Counsel, only the Director, EP Exam may withdraw the request, and it may only be done before the responding transmittal memorandum for the TAM is signed.

  2. The agent will notify the taxpayer of the decision to withdraw the TAM unless:

    1. The period of limitation on assessment is about to expire and the taxpayer has declined to give written consent to extend, or

    2. The notification would be prejudicial to the best interest of the Government.

  3. If the taxpayer disagrees with the Director, EP Exam's decision to deny the TAM request, the taxpayer may request a review by the Commissioner, TE/GE.

    Note:

    The Commissioner, TE/GE has 45 days to deliver a final decision in accordance with section 5.04 and 11 of Rev. Proc. 2015-2.

4.71.13.4.14  (08-24-2015)
Conclusion of the Case When Technical Advice Is Received

  1. After you mail the TAM to the taxpayer, close the case based on the TAM conclusions.

  2. The normal "agreed" or "unagreed " closing procedures should be followed as applicable.

  3. If the issue covered by the TAM is still in disagreement, the TAM should be attached to the RAR.

  4. Tech advice cases aren't subject to mandatory review unless they meet one of the other criteria for mandatory review.

  5. The holdings in a TAM are applied retroactively, unless the TAM grants section 7805(b) relief.

  6. Use AIMS disposal code 10, (RCCMS disposal code 604), Unagreed Without Protest, to close your case if there is an unagreed issue for which the taxpayer is unable to file a protest to Appeals because it was the subject of a Technical Advice Memorandum.

  7. Notate on Form 3198-A that the case had been in suspense, status code 38, and attach Form 3198-A to the front of the case file before it is closed.

  8. Note in the RCCMS comment box that this case was previously in status 38, and there is a Form 3198-A. This alerts the Closing Function Tax Examiner to change the case to status 55, Cases Previously Held in Suspense.

  9. If the case is closed "agreed" , the tax examiner closing the case in ESSP will update the case from status 51, TE/GE – ESP, to status 55 first and then to status 90, Closed, when it closes.

    Note:

    The tax examiner puts the case in status code 55 immediately prior to placing the case in status 90. This tells AIMS that the return shouldn't be counted against the official table upon which cycle time is measured.


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