4.75.36  Procedures For Processing Technical Advice Cases

4.75.36.1  (06-08-2010)
Introduction

  1. These procedures are based on the procedures described in Rev. Proc. 20010-5; 2010-1 I.R.B. 165 updated annually) and are being written to provide examiners with guidance when submitting cases to R&A when requesting a Technical Advice Memorandum (TAM). This will include the examiners responsibilities prior to the submission, during consideration of the TAM , and after it is returned to the group.

  2. These procedures also emphasize that any request for reconsideration of a previously issued Technical Advice Memorandum (TAM) requires the approval of the requesting Area Office and EO Mandatory Review. If these two offices cannot agree whether to protest a TAM, the matter will be decided by the Director, EO Examinations.

4.75.36.2  (06-08-2010)
Technical Advice

  1. Technical Advice is defined as a written advice or guidance memorandum furnished by Exempt Organizations (EO) Rulings and Agreements, (Washington POD) as to:

    1. The interpretation and proper application of Internal Revenue Laws, related statutes and regulations;

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

    3. Any other matter under the jurisdiction of the EO Area Manager.

  2. Administrative procedures for requesting Technical Advice on matters under the jurisdiction of the Tax Exempt Government Entities (TE/GE) Commissioner are found in Rev. Proc. 2010-5, 2010-01 I.R.B. 165, updated annually during the month of January.

  3. 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.

  4. All technical advice requests must be mailed to EO Rulings & Agreements in Washington, D. C. Additionally, a copy of the advice must be routed to EO Mandatory Review concurrently to the following address:

  5. Internal Revenue Service
    MC 4920 DAL
    1100 Commerce Street
    Dallas, TX. 75242

    Note:

    Rev. Proc 2010-2, 2010–1 I.R.B. 90 updated annually during the month of January, provides the administrative procedures for requesting Technical Advice on matters concerning Employment Tax issues.

    Caution:

    Technical Advice Memoranda (TAM) should not be confused with Technical Expedited Advice Memoranda (TEAM). TEAM's cannot be used in lieu of a TAM. See Rev. Proc. 2010-2, IRB 2010-1 I.R.B. 90.

  6. All cases involving technical advice are no longer subject to mandatory review unless they meet one of the other criteria for mandatory review. See IRM 4.75.17.4 for mandatory review criteria.

4.75.36.3  (06-08-2010)
Mandatory Technical Advice

  1. The examiner must request Technical Advice when considering the following issues:

    1. Relief pursuant to IRC § 7805(b);

      Note:

      Section 4.04 of Revenue Procedure 2010-5, I.R.B. 2010-1 I.R.B. 165 (updated annually), provides that requests for IRC § 7805(b) relief are mandatory TAMs with respect to all exempt organizations matters. However, this section also states that a request for a TAM is not required if the Director, EO Examinations proposes to revoke or modify (1) a letter ruling found to be in error or not in accord with the current views of the Service, or (2) a letter recognizing tax-exempt status issued by the headquarters office.

    2. Private Schools with a racially discriminatory policy. Refer to IRM 7.1.4.2.2.1. for further details;

    3. Cases concerning qualifications for exemption or foundation status for which there is no published precedent or on which non-uniformity exists;

    4. Revocation or modification is being proposed to an organization that secured its exempt status from a ruling issued by R&A, (Washington POD);

    5. Abatement of Chapter 42 first tier taxes when the taxes exceed $200,000. See IRM 7.1.4.2.2.2 (concerning IRC § 4962 abatements); or

    6. If the Area Manager, after applying the rationale of U.S. v. American College of Physicians, 106 S. Ct. 1591 (1986), determines that the conduct of advertising in an exempt organization’s journal, or other publication, is substantially related to the organization’s exempt purposes.

  2. The examiner must submit separate Technical Advice requests for a proposed revocation of an organization and a request by a disqualified person for abatement under IRC § 4962 of the first tier Chapter 42 tax, if the total first tier taxes involving all related parties and transactions within the period of limitations exceeds $200,000. For further detailed instructions on these types of cases refer to IRM 7.27.30.

    Note:

    Delegation Order No. 237 (Rev. 2) IRM 1.2.2. 138, provides that EO Area Managers have the authority to abate chapter 42 taxes of $200,000 or less. For chapter 42 taxes of more than $200,000, only the Director, EO has the authority to abate. For more detailed instructions and procedures refer to IRM 7.27.30.14. Amounts for which several parties are jointly and severally liable are counted only once.

4.75.36.4  (06-08-2010)
Items That Must Be Included In The Request For Technical Advice

  1. The Technical Advice file is made up of an original and two copies. If an authorized representative is involved, a copy of a filed Form 2848, Power of Attorney and Declaration of Representative, must accompany the file.

  2. The following, at a minimum, should be included in a Technical Advice Memorandum (TAM) request:

    1. A statement of the facts, law, issues, and Area Office conclusions; .

    2. A statement pertaining to verification of the statute of limitations. There must be at least one year remaining on the statute prior to the TAM submission. If there is not at least one year remaining on the statute when it is submitted to R&A, it will be returned to the group;

    3. A statement identifying information to be deleted from public inspection per IRC § 6110;

      Note:

      The text of a TAM is subject to IRC § 6110 of the Code and may be open to public inspection, therefore, the Service deletes certain information from the text before it is made available for inspection. To help the Service make the deletions required by § 6110(c), the taxpayer must provide a statement indicating the deletions desired. If the taxpayer does not submit the deletion statements, the Service will follow the procedures in section 11.05 of Rev. Proc. 2010-5 . (updated annually).

    4. Form 5565, Request for Technical Advice-EP/EO

      Note:

      In completing the Form 5565, the designation of the approving official, formerly the " Chief, EP/EO Division" , should be replaced with "Area Manager." Additionally, the named "District Contact" , should be replaced with "Area Contact" , who would be the Staff Assistant to the respective Area Manager.. All other information boxes are self-explanatory.

    5. Valid Power of Attorney (Form 2848), if applicable;

    6. Case file, including all returns and workpapers for all years involved; and

    7. Taxpayer statement of facts, if applicable.

  3. All attachments to the Form 5565 should be tabbed and an index prepared. The index should be the first page after the Form 5565, followed by the attachments. It is recommended that the examiner retain a copy so that he/she will have it available to refer to if EO Rulings & Agreements has any questions concerning the request.

  4. The advice case file should consist of all original returns and consent forms (872, 872-B, 872-E, SS-10, etc.). A minimum of one year must remain on the statute for all returns prior to submission of the request.

  5. If the examination of an organization is not complete and the Request for Technical Advice is being submitted under the early referral procedures, the Technical Advice file should include copies of all the workpapers relating to the issues. Refer to IRM 8.6.1, Appeals, Conference and Settlement Practice.

  6. If the examination is complete, the EO group must ensure that:

    1. All case files, return file(s), service center file(s) and Technical Advice file(s) are forwarded to R&A with a copy mailed to EO Mandatory Review.

    2. The case is closed off of the examiner’s Form 6490, EP/EO Technical Time Report.

    3. The return file for the oldest primary return contains copies of the documents necessary to verify the legal name of the organization and the individuals who have the authority to bind the organization. R & A will need these documents if it is necessary to secure consents extending the statute of limitations while the case is being considered.

    4. All returns have at least one year remaining on the statute when the request is submitted. This includes returns for all subsequent tax periods even if the subsequent years were not included in the examination.

      Note:

      The only time the statute on subsequent years would not have to be protected is when the issue(s) involve the assessment of tax rather than revocation or modification and it is known that the issue is definitely not present in any subsequent year. If this exception applies, it should be noted on Form 5773.

    5. A statement of the issue(s) for which Technical Advice is requested, facts, law considered, analysis, examiner’s and taxpayer’s position.

    6. Copy of any required powers of attorney, on Form 2848

    7. Copy of the 10-Day Notice of Intent Letter (if initiated by the examiner).

    8. Copy of the Taxpayer’s Written Statement whether in response to the 10-Day Letter of Notice of Intent Letter or as an initial request, and any other written correspondence (including attachments) between the taxpayer and the Area in connection with the Technical Advice request.

    9. Examiners are generally required to submit the entire case file; however some exceptions apply. R&A would only need the parts that are relevant to the issues to be resolved.

    10. The case must be updated to status 39, group suspense on AIMS.

    11. When the case is returned to the group, it should be updated to status 12. .

    12. Also, Form 3198-A, TEGE Special Handling Notice, should be attached to the case when it is closed to ESS, with instructions to ESS to update the case to status 55 just before status 90. This is necessary so that the case will be excluded from the cycle time computations.

    13. A Suspense Cover Sheet, Exhibit 4.75.36-2, should be attached to the case when it is closed to ESS, and an e-mail sent by the group manager to the manager of ESS to notify them of the pending receipt of the case.

    14. If an examiner is in doubt about the relevancy of certain parts of the file, then it would be prudent to include those materials rather than omit them. If the examiner submits the entire case file, he or she should retain a copy of key documents from the case file of the primary return.

    15. Examiners may consult with the assigned EO Tax Law Specialist if certain items in the case file need to remain with examiner, or if the case file is too voluminous (more than 1 box).

  7. The group is responsible for securing statute updates, requesting quarterly status reports from EO Rulings & Agreements and communicating this information to the Area Office, while the request for Technical Advice is pending.

  8. Unless the taxpayer chooses otherwise, the examiner remains the primary contact for the organization

4.75.36.5  (06-08-2010)
Initiating A Request For Technical Advice

  1. To the extent possible, requests for a TAM should be initiated at the earliest stage of the examination

  2. Examiners will attempt to resolve technical questions locally through appropriate research and by seeking assistance from the following sources:

    • Experienced peers

    • on-The-Job Instructors

    • Group Managers

    • EO Review Staff

    • Available reviewers

    • Technical Advisors in accordance with IRM 4.75.33

    • EO Technical Coordinator

    • Counsel

  3. If technical questions remain after reasonable research and consultation options have been exhausted within EO Examinations, the examiner must acquire approval from the group manager to contact a subject matter expert (EO Tax Law Specialist) from R&A – EO Technical in Washington D.C.

  4. If approved by the group manager, the examiner will consult with the EO Tax Law Specialist in order to determine whether it would be appropriate and feasible to request a TAM given the technical issues presented.

  5. If the examiner decides that Technical Advice is warranted, the examiner will immediately forward his/her recommendation to the group manager. The group manager will then immediately forward his or her recommendation to the Area Manager.

  6. 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.

  7. After securing approval to initiate the request for a TAM, the examiner will initiate the process by notifying the taxpayer in writing that he or she intends to request Technical Advice. See Exhibit 4.75.36-1 for a sample of the 10-Day Notice of Intent Letter, The taxpayer has no authority to bar an internal decision to seek Technical Advice; however, examiners, group managers and Area Managers may consider and document any objections received from the taxpayer.

  8. If the taxpayer requests additional time to respond to the 10-Day Notice of Intent Letter:

    1. The taxpayer must make a Written Request to Extend the 10-Day Period before expiration of the 10 calendar days. The request must include the specific reasons justifying the extended time requested along with a written signature of a duly authorized individual on behalf of the taxpayer.

    2. Upon receipt of the Written Request to Extend the 10-Day Period, the examiner will immediately review the request and forward it to the 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 E-mail.

    3. The Written Request to Extend the 10-Day Period requires the approval of the Area Manager. The Area Manager may prescribe the manner and the extent of documentation needed for this approval.

  9. (9) If the taxpayer agrees with the issues and facts stated in the 10-Day Notice of Intent Letter, that letter will be includible in the Formal Request for Technical Advice package. See IRM 4.75.36.7 Requests for Pre-Submission Conference.

  10. If the taxpayer disagrees with the examiner’s statement of issues and facts in the 10-Day Notice of Intent Letter, the taxpayer should identify each point with which they disagrees and state reasons for the disagreement in the Taxpayer’s Written Statement. The Taxpayer’s Written Statement should respond completely to the 10-Day Notice of Intent Letter and must include a written signature of a duly authorized individual on behalf of the taxpayer

  11. If the Taxpayer’s Written Statement is not received or is incomplete, the examiner may advise the taxpayer that the Formal Request for Technical Advice will go forward with the information available, but additional information provided by the taxpayer will not necessarily be denied if the examiner has already submitted the formal request.

  12. If the examiner disagrees with the issues and facts presented in the Taxpayer’s Written Statement, the examiner will make every effort to resolve any disagreement over the issues and facts with the taxpayer.

  13. If an agreement on the issues and facts cannot be reached between the examiner and the taxpayer, the examiner will submit a Written Notice of Disagreement to the taxpayer.

  14. The taxpayer will have 10 calendar days to respond to the Written Notice of Disagreement in accordance with section 11.04 of Rev. Proc, 2010-5 (updated annually). Authority to grant an extension of the 10 day period rests with the Area Manager.

  15. All statements and correspondence between the examiner and the taxpayer in connection with disagreement over the issues or facts will be includible in the Formal Request for Technical Advice package. See IRM 4.75.36.8, Formal Request for Technical Advice.

4.75.36.6  (06-08-2010)
Taxpayer Initiates Request For Technical Advice

  1. Taxpayers may initiate a request for a TAM by submitting a Taxpayer’s Written Statement to the examiner that includes the taxpayer’s reasons for requesting the TAM. The statement should include the information specified in section 10 of Rev. Proc. 2010-5 (updated annually) which is the same information needed in response to the 10 day notice. 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 examiner will determine whether issuance of a TAM is warranted based on the criteria of sections 4, 5, 6 and 8 of Rev. Proc. 2010-5 (updated annually) and his/her own knowledge of the case. Examiners should seek assistance from the sources identified in paragraphs (2) through (4) of IRM 4.75.36.5, Initiating A Request For Technical Advice, to aid in their determination.

  3. If upon receipt of the Taxpayer’s Written Statement the examiner disagrees with the taxpayer’s statements of issues and facts, the examiner should respond with a Written Notice of Disagreement to the taxpayer. This should be done even if it is determined that Technical Advice is not warranted.

  4. The taxpayer will have 10 calendar days to respond to the examiner’s Written Notice of Disagreement in accordance with section 11.04 of Rev. Proc. 2010-5 (updated annually). Authority to extend the 10-day period rests with the Area Manager. See IRM 4.75.36.3 for extension procedures.

  5. After the examiner evaluates all documents and determines whether a TAM is warranted, he/she will prepare an Examiner’s Summary 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 examiner will immediately forward the Examiner’s Summary and a copy of the Taxpayer’s Written Statement to the group manager. This can be done by fax or secured E-mail.

  7. The group manager will then immediately forward the same with his/her recommendation to the Area Manager. The Area Manager may prescribe the manner and the extent of additional documentation needed for this approval.

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

  9. If the Area Manager approves the taxpayer’s request for a TAM, the Taxpayer’s Written Statement will be includible in the Formal Request for Technical Advice package. All other statements and correspondence between the examiner and the taxpayer in connection with any disagreement over issues and facts will also be included. See IRM 4.75.36.7, Request for Pre-Submission Conference.

  10. If the Area Manager denies the taxpayer’s request for a TAM, the examiner will inform the taxpayer. Refer to section 12 of Rev. Proc. 2010-5 (updated annually) for procedures if the taxpayer disagrees with this decision.

4.75.36.7  (06-08-2010)
Requests For Pre-submission Conference

  1. Requests for Pre-submission Conferences are required for all TAM requests, except for "mandatory TAMs" described in section 4.04 of Rev. Proc. 2010-5 (updated annually).

  2. A Pre-submission conference should be considered in order to facilitate agreement between all parties as to the scope of the request. The factual information should include any and all collateral issues in the request in order for EO Rulings & Agreements to provide the parties with an expeditious response. For detailed instructions on pre-submission conference procedures refer to section 9 of Rev. Proc. 2010-5, (updated annually).

  3. If the Area Manager approves a request for Technical Advice, the examiner must submit a Request for Pre-submission Conference to R&A by secured E-mail to tege.eo.ra@irs.gov. To the extent any part of this document cannot be submitted electronically, it can be faxed to 202-283-8858, or sent by express mail or private delivery service: Internal Revenue Service Attn.: SE:T:EO:RA 1111 Constitution Ave., NW-PE Washington, DC 20224

  4. The Request for Pre-submission Conference will include the following:

    1. Identify the office expected to have jurisdiction over the request for a TAM. For example, the EO Examination Group and Area.

    2. Copy of approval by the Area Manager.

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

    4. A brief explanation of the primary issue.

    Caution:

    Managers are reminded that when using electronic signatures they are fully aware of the issues, and they agree to the representations and statements of the underlying documents and their attachments.

  5. No later than 10 working days before the scheduled pre-submission conference, the examiner should submit:

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

    2. Statement of pertinent facts

    3. 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. Copy of any required powers of attorney, on Form 2848.

  6. An assigned EO Tax Law Specialist from R&A should contact the examiner within 5 working days of receiving the request. A pre-submission conference (most likely by telephone) should be held within 30 calendar days after examiner is contacted.

4.75.36.8  (06-08-2010)
Formal Request For Technical Advice

  1. The examiner must send the Formal Request for Technical Advice by secured E-mail to tege.eo.ra@irs.gov To the extent any part of this document cannot be submitted electronically, it can be faxed to tege.eo.ra@irs.gov, or sent by express mail or private delivery service to the following address:
    Internal Revenue Service
    Attn.: SE:T:EO:RA
    1111 Constitution Ave., NW-PE
    Washington, DC 20224

  2. Documents that are mailed should be sent one business day prior to the secured E-mail.

  3. The examiner must forward a copy of the Formal Request for Technical Advice (not including the case file) to EO Mandatory Review at the same time the formal request is sent to R&A. A reviewer will be assigned to the Formal Request for Technical Advice in order to monitor the process, and will also be Mandatory Review’s primary contact with R&A

  4. The examiner will update the case to AIMS status 39, " Suspense in Group" , using RCCMS. Cases that are not ready for closure and that have certain other issues remaining to be developed may remain in status 12.

    Example:

    1. Taxpayer Z’s 2008 Form 990 is under examination. The examiner has identified two issues in connection with this examination. The 1st issue is primarily an exemption issue involving impermissible private benefit through a complex partnership arrangement. The examiner is requesting Technical Advice on the 1st issue. The case is not ready to close because the examiner is developing a 2nd exemption issue relating to the CEO’s excessive compensation involving inurement. The 990 return should remain in status 12.

    Example:

    2. Assume the same facts in Example 1, except that the 2nd issue is a tax issue involving understated wages on Form 941. The 990 return may be updated to AIMS status 39, while the 941 returns und er examination may be established or updated to status 12.

    Example:

    3. Assume the same facts in Example 1, except that the 2nd issue is a tax issue involving an unrelated business. The 990 return may be updated to AIMS status 39, while the 990-T returns under examination may be established or updated to status 12.

  5. The examiner will maintain the case in his or her inventory on Form 6490, EP/EO Technical Time Report.

  6. The EO groups are responsible for securing statute updates, requesting quarterly status reports from R&A and communicating this information to EO Mandatory Review, while the request for Technical Advice is pending. See section 15 of Rev. Proc. 2010-5 (updated annually).

  7. The examiner will remain the taxpayer’s primary contact. However refer to step (49) regarding the matter of the IRC § 6110 deletion process between the taxpayer and Chief Counsel Office for Disclosure. The examiner is not authorized to share tentative conclusions of the TAM with the taxpayer.

  8. R&A may request additional documents from the examiner and/or the taxpayer. When responding to R&A, the taxpayer should submit copies of their responses to the examiner. 16.11 of Rev. Proc. 2010-5 (updated annually).

  9. If it appears a TAM adverse to the taxpayer will be given, R&A may inform the taxpayer of a "conference of right." The examiner should be offered an opportunity to attend.

  10. The examiner should forward to the EO Tax Law Specialist any additional documents the taxpayer submits to the examiner relating to the issue at hand, even if they are received after a suspense date.

  11. Only the Area Manager can withdraw a TAM request. See section 13 of Rev. Proc. 2010-5 (updated annually) for withdrawal procedures.

  12. Once a ruling has been made with regard to a TAM, R&A will send the TAM directly to EO Mandatory Review. The TAM takes effect on the earlier of the date the TAM is mailed to the taxpayer or 30 days after Mandatory Review receives the TAM.

4.75.36.8.1  (06-08-2010)
The Effect Of The Technical Advice Memorandum

  1. Once a ruling has been made with regard to a TAM, it applies only to the taxpayer for which Technical Advice was requested. A favorable TAM to the taxpayer must be followed unless reconsideration by the Washington POD is requested from the Area Office or Appeals.

  2. The Appeals Director has settlement authority on issues other than exempt status and private foundation classification where an unfavorable TAM was given to the taxpayer.

  3. The taxpayer must first exhaust all administrative remedies before appealing with the Courts, where an unfavorable decision is issued by the Washington POD. This applies to cases not dealing with exempt status or private foundation classification. Refer the taxpayer to 26 CFR 601.201. for further instructions.

4.75.36.8.2  (03-01-2004)
Withdrawal Of A Technical Advice Request

  1. Once a request for a TAM has been sent to the Headquarters Office, Washington, POD, the taxpayer may not withdraw it. Only an EO Area Manager may withdraw the request at any time before the responding Transmittal Memorandum for the TAM is signed.

    Note:

    In cases where Appeals has jurisdiction of the case, only the Area Director, Appeals has the authority to withdraw the request.

  2. The Area Manager must notify the taxpayer in writing of an intent to withdraw the request for a TAM, except:

    1. When the period of limitations on assessment is about to expire and the taxpayer has declined to sign a consent to extend the period; or

    2. When the notification would be prejudicial to the best interests of the Government.

  3. If the taxpayer does not agree with the decision to withdraw the request for a TAM, he/she cannot appeal to the EO Examinations Area Manager, but the decision not to seek Technical advice can be reviewed by the Commissioner of the Tax Exempt and Government Entities Division through the Director, Exempt Organizations.

  4. The taxpayer must submit to the examiner, within 10 calendar days after being told of the decision, a written statement of the facts, law, and arguments on the issue and the reasons why the taxpayer believes the matter should be referred to EO Rulings & Agreements for technical advice.

    Note:

    A taxpayer who needs more than 10 calendar days must justify in writing the request for an extension of time. The extension is subject to the approval of the EO Area manager.

  5. No conference will be held with the taxpayer or the taxpayer's representative.

  6. While the matter is being reviewed, the area office will suspend action on the issue (except when the delay would prejudice the Government's interest).

4.75.36.9  (06-08-2010)
Receipt And Management Of The TAM

  1. Upon EO Mandatory Review’s receipt of the TAM, EO Examinations (collectively EO Mandatory Review, the Area and the Group) has 30 days to ensure that either the TAM is mailed to the taxpayer, or a proper protest is sent to R&A

  2. In order to give all parties involved adequate time to meet this 30 day suspense, EO Mandatory Review will, immediately upon receipt of the TAM, overnight or fax an advanced unofficial copy of the TAM to the EO group marked, "DO NOT RELEASE TO TAXPAYER" . This will give both the examiner and Mandatory Review the time they need to consider concurrence of the TAM, seek counsel, and resolve any differences concerning adoption of the TAM.

  3. The reviewer will prepare a Reviewer’s Transmittal Memorandum which will recommend either adoption of the TAM or request for reconsideration (Written Protest) of the TAM. The reviewer will indicate on the Reviewer’s Transmittal Memorandum the date the TAM was received and the date the examiner must either send the TAM via certified mail to the taxpayer, or send a Memorandum of Request for Reconsideration (Written Protest) to the reviewer. This date shall be known as the examiner’s "Performance Date" .

  4. Within 14 days after receipt of the TAM, the reviewer will send the official TAM along with the Reviewer’s Transmittal Memorandum (collectively the TAM Package) to the EO group, with a copy to the Area Manager. The reviewer will nevertheless endeavor to send the TAM Package as soon as possible during this period.

  5. The examiner’s Performance Date should be no later than 21 days after EO Mandatory Review received the TAM.

  6. Upon receipt of the TAM Package from Mandatory Review, the examiner should update the case back to AIMS status 12 on Form 5595.

  7. Upon receipt of the TAM Package from Mandatory Review, the examiner should have already reviewed the advanced non-releasable copy of the TAM, consulted with the group manager, the Area Manager and Area Counsel where appropriate, and taken steps to decide whether to adopt or protest the TAM.

  8. The examiner will consider the reviewer’s recommendations in his or her determination to adopt the TAM or submit a Written Protest. The examiner will not share the conclusions of the TAM with the taxpayer until mailing the official TAM to the Taxpayer by certified mail.

4.75.36.10  (06-08-2010)
EO Examinations Concurs with TAM

  1. If the EO group concurs with EO Mandatory Review’s recommendations, and reconsideration is not requested, the examiner will send by certified mail to the taxpayer and their designated representatives the following no later than the Performance Date.:

    1. A Cover Letter addressing the enclosed attachments. The Cover Letter should emphasize the 20 day response period for additional IRC § 6110 deletions ;

    2. One un-sanitized copy of the TAM;

    3. One sanitized copy of the TAM; and

    4. Notice 438, Notice of Intention to Disclose (Technical Advice).

    5. e. If applicable, waiver form(s), including Forms 6018, 6018-A, 4549, 870, 870-E, 2297, 3363, 2504 or 2504-WC soliciting agreement for the issues covered by the TAM.

  2. Prior to mailing the TAM Package, the examiner will complete Notice 438 by filling in the name of the taxpayer, and the required dates. The Dating Schedules are based on the following rules:

    Note:

    The dating schedule can be obtained from Rulings and Agreement in Washington, D.C.

    Notice 438 Block To be filled in by Examiner
    Mailing date of the notice Enter the mailing date by certification
    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.
    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 previous business day
    Date Open to Public Enter the Friday preceding the 90th day
    Inspection after the date of mailing the notice. If that Friday falls on a holiday, then enter the previous business day.

  3. On the same day the TAM is mailed to the taxpayer, EO groups will mail a copy of the Modified TAM Package (without the items listed in IRM 4.75.36(2)(e) to the following address.
    Internal Revenue Service
    Attention: CC:PA:LPD:DLS, Room 5201
    Ben Franklin Station
    Post Office Box 7604
    Washington, D.C. 20044

    Caution:

    Do not send this package piecemeal.

  4. In lieu of mailing, the examiner can send the copy of the Modified TAM Package including Notice 438 electronically by secured email to the following officials or their designates in the Disclosure and Litigation Support Branch of the Procedures and Administration Branch of the Office of Chief Counsel:

    Legal Assistant Lori Cox Lori.Cox@irscounsel.treas.gov
    Legal Assistant Tyrone Drew Tyrone.Drew@irscounsel.treas.gov
    Branch Chief Melva Tyler Melva.A.Tyler@irscounsel.treas.gov

  5. The subject line of the secured email will read in all caps, " IRC 6110(f)(1) NOTICE MAILED TO TAXPAYER – SEE ATTACHED"

  6. Notice 438 informs taxpayers of their right to request additional deletions from the sanitized TAM. In accordance with Notice 438, the Office of Chief Counsel for Disclosure will be the primary contact for the taxpayer over this matter.

  7. The examiner will not be involved in the IRC § 6110 deletion process after mailing Notice 438 except to provide direction to the taxpayer as needed.

4.75.36.11  (06-08-2010)
EO Examinations Does Not Concur with TAM

  1. If after receipt of the TAM from Rulings and Agreements, Mandatory Review and EO Examinations do not concur with the TAM, the examiners and reviewers will not inform the taxpayer that a TAM is subject to a request for reconsideration, or other similar internal disagreements over the TAM.

  2. If Mandatory Review and the Area agree to protest the TAM, upon receipt of the TAM package from Mandatory Review, the examiner will immediately prepare a Memorandum of Request for Reconsideration (The Written Protest) addressed to the Manager in Rulings and Agreements that signed the TAM in question. The memorandum will have the following information:

    1. The name and phone number of the primary contact in Mandatory Review for R&A, normally the assigned reviewer.

    2. A signature block for the Manager, EO Mandatory Review on the memo (electronic signature permitted).

    3. A signature block for the Area Manager (electronic signature permitted).

    4. A description of the specific errors in the TAM analysis and conclusions. Do not re-argue points raised in the initial request. Instead focus on points the TAM overlooked or misconstrued in the arguments by EO Examinations in support of their request. Attach a copy of the TAM in question

    5. Attach other pages from the technical advice case file that have a direct bearing on the issues or arguments that are being made in the request for reconsideration. The examiner may submit additional documents later.

    6. R&A may request additional documents from the field or from the taxpayer.

  3. The examiner will secure the signature of the Group Manager and the Area Manager on the Written Protest.

  4. By no later than the Performance Date, the examiner will send the Written Protest to the reviewer.

  5. After submitting the Written Protest, the examiner should update the case back to AIMS status 39," Suspense in Group" , unless there are certain other issues the examiner is developing

  6. The reviewer will then secure the signature of the Manager, EO Mandatory Review (electronic signature is permissible). The reviewer will forward the completed Written Protest and its attachments to the Manager, R&A who signed the TAM in question.

  7. R&A will send their R&A Reply Memorandum in response to the Written Protest to EO Mandatory Review with instructions. The R&A Reply Memorandum will either include a re-issued TAM, or confirm the initial TAM in question.

  8. EO Mandatory Review will forward the R &A Reply Memorandum and its attachments to the examiner with instructions.

  9. The examiner will return the case to AIMS status 12 when he or she receives the R&A Reply Memorandum with a re-issued TAM, or a confirmation of the initial TAM in question.

  10. If Rulings and Agreements re-issues a new TAM, the examiner will follow the procedures in IRM 4.75.36.6 ; however, there will generally not be another request for reconsideration (protest).

  11. If Rulings and Agreements denies the Written Protest and confirms the initial TAM, the examiner will follow the procedures outlined in IRM 4.75.16.6 on sending the initial TAM and other documents to the taxpayer and to the Office of Chief Counsel for Disclosure.

4.75.36.12  (06-08-2010)
Mandatory Review And Area Manager Disagree Over Whether To Protest

  1. Immediately upon receipt of the TAM Package from Mandatory Review, if the EO group does not concur with EO Mandatory Review’s recommendations, and reconsideration is requested by the EO group, the examiner will contact the reviewer to discuss the TAM and consider the EO group’s request for reconsideration.

  2. If the reviewer concurs that reconsideration is appropriate, the examiner must prepare the Written Protest addressed to the Manager, R&A who signed the TAM in question and follow the procedures in IRM 4.75.36.8 If the examiner concurs with adoption of the TAM, the procedures outlined in IRM 4.75.36.10 must be followed.

  3. In the event EO Mandatory Review recommends adoption of the TAM, but the Area Manager insists on protesting the TAM, a protest cannot be submitted unless Mandatory Review subsequently agrees to submit a protest, or the Director, EO Examinations approves it. A Written Protest is a document of EO Examinations (not the Area or any other unit acting alone). See sections 17.01 and 17.02 of Rev. Proc. 2010-5 (updated annually).

  4. In the event of a disagreement of the type where EO Mandatory Review recommends a protest of the TAM, but the Area Manager prefers to adopt the TAM, the Area Manager’s decision to adopt will be final and the TAM will be issued to the taxpayer following the procedures outlined in IRM 4.75.36.10.

  5. If the reviewer does not concur that reconsideration is appropriate, a conference call will be held between the examiner, the affected group manager, the reviewer, and the Manager, EO Mandatory Review, in an attempt to reach agreement.

  6. In the event of any significant disagreement between EO Mandatory Review and the EO group, a conference will be held between the affected group manager, his or her Area Manager, the Manager, EO Mandatory Review, and the Manager, EPR, to resolve the issue. Ultimately, the decision of the Area Manager and Manager, EPR is final.

  7. The final decision can be made at anytime up to 28 calendar days after EO Mandatory Review receives the initial TAM in question; but in enough time to allow the examiner and the reviewer to submit the Written Protest timely with appropriate signatures if that is the decision.

  8. If the final decision is to adopt the TAM in question, the examiner will follow the procedures outlined in IRM 4.75.36.10 in order to send the official TAM to the taxpayer and to the Office of Chief Counsel for Disclosure.

  9. Whether R&A accepts or denies a Written Protest of the initial TAM, a TAM will be issued. There can be no withdrawal of a request for Technical Advice after the initial TAM has been issued.

4.75.36.13  (06-08-2010)
Conclusion of the Case

  1. After the examiner issues the TAM to the taxpayer, the case will be closed on the basis of the conclusions of the TAM. A copy of the TAM should be attached to the RAR that refers to it. Normal agreed or unagreed closing procedures should be followed as applicable.

  2. 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 based on a Technical Advice Memorandum.

  3. All cases involving technical advice are no longer subject to mandatory review unless they meet one of the other criteria for mandatory review. See IRM 4.75.17.4.1 for mandatory review criteria.

Exhibit 4.75.36-1 
10 Day Letter of Intent

DEPARTMENT OF THE TREASURY
Internal Revenue Service
TEGE EO Examinations Group 7XXX
Street Address, Suite No.
City, State 11111
 
    Date:
       
      Form Number:
     
      Tax Year Ended:
     
      Taxpayer Identification number:
     
Taxpayer Name   Person To Contact:
Attention line  
Street Address   Employee Identification number:
City, State, Zip Code  
      Employee Telephone number:
      Phone:
      Fax:
         
Dear
         
In connection with the examination of the return(s) for the period(s) indicated, we intend to initiate a request for Technical Advice from R&A (EO Technical) in Washington D.C. Technical Advice procedures are set forth in Revenue Procedure 2007-5, 2007-1 I.R.B. 161 (updated annually). [If the issue involves employment taxes, also cite Rev. Proc. 2008-2, 2008-1 I.R.B. 88].
Requests for Technical Advice are generally initiated when there is no published precedent or there is reason to believe that non-uniformity exists in resolving an issue or an issue is unusual or complex enough to warrant consideration by EO Technical
We have attached a statement presenting the issues for which we seek Technical Advice, including the facts, applicable law, and our position with respect to these issues. See ATTACHMENT.
 
Before we submit the case for Technical Advice, we ask that you furnish us the following information within 10 calendar days from the date of receipt of this letter. If you need more time to respond to this Letter of Intent, you must request it in writing and state your reasons.  
           
1. Would you agree to a pre-submission conference with us and EO Technical?  
2 .Do you agree with our presentation of the facts, which would serve as the basis for a decision by EO Technical? If not, you must specifically identify those facts subject to disagreement. Before a case can be submitted for Technical Advice, every effort must be made to agree on the facts.  
3 .You may state your own established legal precedent, and your position with respect to the issue(s) subject to this proposal to request Technical Advice.  
4. You are encouraged to comment on any legislation, tax treaties, regulations, revenue rulings, revenue procedures, or court decisions contrary to your position. If you determine that there are no contrary authorities, we ask that you provide a statement to this effect.  
5 By authority of IRC §6110, Technical Advice Memoranda are available for public inspection with certain deletions allowed under IRC §6110(c). Under a letter of separate cover, please indicate whether you request deletions other than names, addresses, and identifying numbers. If you want additional deletions, the deletion statement must be accompanied by a copy of the proposed facts, law, and position (yours and ours), on which you must clearly bracket the information you want to delete. The deletion statement must indicate the specific paragraph under section 6110(c) upon which each deletion is based.  
6. If an adverse decision is indicated, will you want a conference with EO Technical?  
           
If you do not respond to this Letter of Intent, the facts stated in the ATTACHMENT and its accompanying exhibits would constitute the facts on which a ruling would be based. We will however present your arguments as we understand them. [If the issue is a declaratory judgment issue, include the following statement: "Because the issue(s) involved [is/are] subject to Declaratory Judgment under section 7428, we have attached a notice of Declaratory Judgment" ]  
           
If you have any questions, you can call me at the number indicated at the heading of this letter. Thank you for your cooperation.  
           
    Sincerely,  
           
    Name  
    Signature Line  
    EO Examiner  
           
Enclosures:    
Declaratory Judgement
Section 7428(a) provides that the Tax Court, the United States Claims Court, or the District Court of the United States for the District of Columbia may make a declaration with respect to a continuing qualification of an organization as an organization described in section 501(c)(3) in the case of actual controversy involving a determination by the Secretary.
Section 7428(b)(2) of the Internal Revenue Code provides that a declaratory judgment shall not be issued in any proceeding unless the Tax Court, the Claims Court, or the District Court of the United States for the District of Columbia determines that the organization involved has exhausted administrative remedies available to it within the Internal Revenue Service.

Exhibit 4.75.36-2 
Suspense Case Cover Sheet

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