8.7.1  Guidelines for Cases with Special Issues

Manual Transmittal

September 25, 2012

Purpose

(1) This transmits revised IRM 8.7.1, Technical and Procedural Guidelines, Guidelines for Cases with Special Issues.

Material Changes

(1) Revised IRM to reflect new organizational titles resulting from the Appeals 2012 Alignment Project.

(2) References and links updated throughout.

(3) IRM 8.7.1.2 (3) (b) - revised to reflect that a computation of the personal holding company tax is required.

(4) IRM 8.7.1.3 (1) (a) - revised to reflect that a computation of the accumulated earnings tax is required.

(5) IRM 8.7.1.4 (5) - revised to update information regarding referrals.

(6) IRM 8.7.1.4.2 (11) - revised to provide IRM cite regarding suspension periods on research credits.

(7) IRM 8.7.1.4.3 - revised to provide corrected procedures for preparing settlement computations involving the research credit.

(8) IRM 8.7.1.5.1 - revised to update procedures for requesting Art Appraisal Services Assistance.

(9) IRM 8.7.1.6.3 - updated to provide additional information regarding a taxpayer's request for judicial review of a jeopardy assessment.

(10) IRM 8.7.1.8.3 and IRM 8.7.1.8.4 - reversed the order of these two sections and renumbered accordingly.

(11) Moved the administrative cost and qualified offer guidance previously published in IRM 8.7.1.10 to new IRM 8.7.15, Administrative Cost and Qualified Offer Cases.

(12) IRM 8.7.1.10 - revised to add additional information about Appeals' role and the servicewide process for identifying taxpayers affected by disasters.

(13) Added new Exhibit 8.7.1-1 to show sample Forms 3610 and 6765.

Effect on Other Documents

IRM 8.7.1 dated 11/06/2007 is superseded.

Audience

Appeals Employees

Effective Date

(10-01-2012)


Susan L. Latham
Director, Policy, Quality and Case Support

8.7.1.1  (10-01-2012)
Introduction to Cases with Special Issues

  1. This section provides general information about special issues found in Appeals cases, specifically Personal Holding Company-Deficiency Dividend, Restricted Interest, and Accumulated Earnings. It also provides information on requesting assistance from Appraisal Services within Appeals and the case procedures for jeopardy assessment, termination assessments, and refund suits.

  2. The section goes into detailed procedures on the provisions of IRC 7430, covering cases with Litigation and Administrative Costs at issue.

  3. The information covers procedures applicable to Appeals Officers, Appeals Team Case Leaders, Tax Computation Specialists and Account and Processing Support (APS) employees.

8.7.1.2  (10-01-2012)
Personal Holding Company Tax Alleviated by Deficiency Dividend

  1. IRC 547 provides a method for relieving a personal holding company from payment of tax imposed under IRC 541 by paying deficiency dividends. If the taxpayer agrees to a deficiency in personal holding company tax, the Appeals Officer (AO) advises the taxpayer of the procedures required to secure the benefits of IRC 547. The information is broken down by Appeals function.

  2. Appeals Officers and Appeals Team Case Leaders:

    1. Use Form 2198, Determination of Liability for Personal Holding Company Tax, as an informal agreement for liability of personal holding company tax under IRC 547(c)(3). For authority to enter into such agreements, see Delegation Order No. 4-1 [formerly Delegation Order 8 (Rev. 11)] in IRM 1.2.43.2.

    2. Do not accept Form 2198 unless sufficient time remains to make an assessment, taking into consideration the taxpayer is allowed 120 days.

    3. Do not accept this agreement form on behalf of the IRS unless the taxpayer executes an appropriate agreement form, such as Form 870 or Form 870-AD, covering the proposed adjustments to both income tax and personal holding company tax for the years involved. Form 870 must contain conditional paragraphs as shown in IRM Part 4. Ordinarily it is not necessary to insert conditional paragraphs on Form 870-AD since the acceptance of Form 870-AD and Form 2198 are concurrent. See also Rev. Proc. 63-1, 1963-1 C.B. 471.

    4. When using closing agreements as determinations under IRC 547(c)(2), see IRM 8.13.1, Closing Agreements , and Rev. Proc. 68-16, 1968-1 C.B. 770.

    5. If Form 2198 is accepted, solicit taxpayer's claim ( Form 976) and secure necessary substantiating evidence.

    6. Specific rules for establishing the date of the determination are set forth in the Regulations. There are two deadlines that apply. The taxpayer has 90 days after the date of the determination (generally, the date the signed Form 2198 is mailed to the taxpayer by registered or certified mail) to distribute the deficiency dividend. The taxpayer has 120 days after the date of the determination to file a claim on Form 976, Claim for Deficiency Dividends Deductions by a Personal Holding Company, Regulated Investment Company, or Real Estate Investment Trust.

    7. If no unusual circumstances are involved and verification of payment of dividends can easily be made, verify the claim. Prepare Form 3189, Deficiency Dividend Deduction Case Transmittal, and Form 5402, Appeals Transmittal and Case Memo, and close the case.

    8. If unable to verify the claim, send the substantiating evidence and administrative file to Compliance to verify the claim and prepare the report. Clearly state on the transmittal that the entire case file must be returned to Appeals, including the Revenue Agent Report (RAR) reflecting the recommendation to allow or disallow the claim.

    9. When preparing settlement computations, the AO is responsible for providing the information contained in (3) below.

    10. Depending on local procedures, either APS or the AO controls the 120 days. APS must notify the AO of the date Form 2198 is mailed.

  3. Tax Computation Specialists (or employee who prepares settlement computation):

    1. Because the amount of personal holding company tax is embedded in the body of the settlement computation and hard to see, the employee preparing the settlement computations (AO or TCS) must provide the amount in Reference Number 321 field of the Form 5403 Worksheet. This requirement is valid for MFT 02 returns.

    2. The AO or TCS, whomever prepares the settlement computations, is responsible for preparing a computation of the personal holding company tax.

    3. Interest is restricted for personal holding company tax underpayments under IRC 547(f)(2) and on overpayments under IRC 547(b)(2). This information is annotated in the settlement computation (on Form 3610, 5278, etc.) when applicable.

  4. APS:

    1. APS prepares Form 5403, Appeals Closing Record, in accordance with Examination function's claim verification and closes the case to the Campus.

    2. APS mails Form 2198, Form 976 and the cover, letter prepared by the AO, to the taxpayers using certified mail. The AO prepares the cover letter to explain that the taxpayer has 90 days from the date of determination to distribute the deficiency dividend and 120 days from the date of the determination to file a claim on Form 976, Claim for Deficiency Dividends Deduction by a Personal Holding Company or Real Estate Investment Trust.

    3. Depending on local procedures, either APS or the AO controls the 120 days. APS must notify the AO of the date Form 2198 is mailed.

  5. For further information relative to the handling and disposition of Form 2198, see IRM Part 4.

  6. For docketed personal holding company tax cases, see IRM 8.4.1, Appeals Docketed Cases.

  7. Termination of Form 872-A by the taxpayer is rare. For special rules concerning the termination of a Special Consent on a personal holding company tax case, see IRM 25.6.22.7.

8.7.1.3  (10-01-2012)
Accumulated Earnings Tax IRC Notification

  1. Appeals Officers or Tax Computation Specialists: Whoever prepares the settlement computations, is responsible for providing a computation of the accumulated earnings tax when accumulated earnings tax is present in the case.

  2. Account and Processing Support (APS): Except for the items listed below, follow the instructions for completing Form 5403, Appeals Closing Record, when closing a case with Accumulated Earnings Tax (AET):

    1. Item 12 - The amount entered will be the total of income tax deficiency PLUS the AET.

    2. Item 15 - If taxable period is 198509 or prior, enter the amount of AET with Ref. Number 320.

    3. Item 800/801 - Include the Item 12 amount but DO NOT include Ref. Number 320 amount because it would duplicate the AET amount already reflected in Item 12.

    4. Item A - Special Handling Instructions - Check the " Other" box and enter "AET of $ _included in Item 12."

  3. Termination of Form 872-A by the taxpayer is rare. For special rules concerning the termination of a Special Consent on an accumulated earnings tax case or a personal holding company tax case, see IRM 25.6.22.7.

  4. See IRM 4.10.13, Examination of Returns, Certain Technical Issues, for additional information and procedural instructions for accumulated earnings tax cases.

8.7.1.4  (10-01-2012)
Credit for Increasing Research Activities, IRC 41

  1. The research credit is a nonrefundable credit generally allowed for a percentage of expenditures paid or incurred for qualified research. See IRC 41, Credit for Increasing Research Activities, for details.

  2. The research credit was first enacted in the Economic Recovery Tax Act of 1981 as IRC 44F. Major revisions were made by the Tax Reform Act of 1984 and the section was redesignated as IRC 30 and again by the Deficit Reduction Act of 1986 when it was redesignated as IRC 41, where the authority remains today.

  3. The research credit is not a permanent credit. It has been extended numerous times through December 31, 2011, with one gap: no credit is allowed for expenditures incurred after June 30, 1995 and before July 1, 1996.

  4. Currently, the research credit is not allowed for amounts paid or incurred after December 31, 2011. However, pending legislation may allow the research credit for later expenditures.

  5. Use care to ensure the correct law and applicable regulations are applied when computing the research credit for any taxable year.

    1. See the TIssue Locator at http://appeals.web.irs.gov/TG_locator/application/query.asp for more information about the Research Credit.

    2. Additional information can be found at the Business Credits Issue Practice Group's web site at https://organization.ds.irsnet.gov/sites/lbi_ipg_program/General/default.aspx

    Note:

    The Definition of a Qualified Activity under Section 41 is an Appeals Coordinated Issue – Category of Case and requires a referral to Technical Guidance, but does not require Review and Concurrence. Two other issues involving the Research Credit, Extraordinary Utilities and Allocation of Indirect Costs to Self-Constructed Supplies, are Compliance Coordinated Issues and they require both a referral to Technical Guidance and Review and Concurrence.

  6. Form 6765, Credit from Increasing Research Activities, provides for the various computations of the research credit, the reduced credit and the amount of the suspended research credit. Refer to the corresponding revision of the form and instructions for the applicable taxable year.

8.7.1.4.1  (11-06-2007)
Research Credit as Component of General Business Credit

  1. The Tax Reform Act of 1986 added the research credit to the general business credit (GBC) for years beginning after 1985. Prior to that it was a stand-alone credit. As part of GBC, it is subject to the carryback and carryforward provisions of IRC 39(a).

  2. Special rules apply where both the credit and a deduction is claimed for the same research expenditures.

    1. IRC 280C(c)(1) provides that no deduction is allowed for that portion of the qualified research expenses otherwise allowable as a deduction for the taxable year which is equal to the amount of the credit determined for such taxable year.

    2. The taxpayer must reduce deductions by the amount of the credit computed, regardless of whether the taxpayer is able to utilize the full credit in the credit computation year, unless the taxpayer elects a reduced research credit pursuant to IRC 280C(c)(3).

    3. This is a yearly election and may be claimed only on an original timely filed return (with extensions).

    4. See IRC 280C(c) for details and prior law.

    5. Appeals Officers or Appeals Team Case Leaders must take IRC 280C into consideration when providing the Tax Computation Specialist with the adjustments to the research expenditures and the research credit.

8.7.1.4.2  (10-01-2012)
Research Credit Suspension

  1. The Tax Relief Extension Act of 1999 provides for two suspension periods for the research credit. As a result, credit arising from these suspension periods cannot be taken into account on original returns.

    1. First suspension period is July 1, 1999 – September 30, 2000: The credit cannot be taken into account prior to the later of October 1, 2000 or the date the return (which includes all or part of the first suspension period) is considered filed, including approved extensions.

    2. Second suspension period is October 1, 2000 – September 30, 2001: The credit cannot be taken into account prior to the later of October 1, 2001 or the date the return (which includes all or part of the second suspension period) is considered filed, including approved extensions.

  2. No credit involving the two suspension periods may be claimed on a timely filed or late filed original income tax return, even if that original return is filed after the expiration of such suspension period. The amount can only be claimed on a Form 1040X/ Form 1120X or a Form 1045/ Form 1139.

  3. Further, any claim for refund of an overpayment of tax attributable to a research credit suspension period cannot be filed before the expiration of the applicable suspension period or before the date the original return for the applicable taxable year is filed.

  4. See Notice 2001-2 and IRM 21.7.4 for additional information on research credit suspension periods.

  5. To determine the amount of the credit that is suspended, the taxpayer must first calculate the research credit for the taxable year.

    1. Because the research credit suspension periods merely delay the use of research credits attributable to a research credit suspension period, the limitations contained in IRC 38(c), IRC 39, and IRC 41(g) on the amounts of research credit allowable to any person as a credit against tax for any taxable year remain applicable.

    2. Further, taxpayers not electing to take a reduced credit under IRC 280C(c)(3) must continue to reduce applicable deductions, amounts chargeable to capital account, and credits for the taxable year by the full amount of the research credit as required by IRC 280C(c)(1) and IRC 280C(c)(2).

  6. The amount of the total credit that is suspended is based solely on the number of months in the fiscal year before the suspension date (October 1, 2000 or October 1, 2001) and the number of months after the suspension date, not on the dollar amounts incurred for qualified research activity during the suspension periods. Any adjustment to the credit amount is to be allocated to the different periods before and after the suspension date. See the examples below:

    1. Example 1: If the taxpayer’s fiscal year runs from April 1, 1999 through March 31, 2000 and the taxpayer has a $10,000 research credit, $2,500 (25% = 3 months for April, May & June out of 12 months) is allowable on the original return and the remaining $7,500 is suspended until October 1, 2000 (the months covering July through March involve a suspension period). The taxpayer can file a claim for the $7,500 credit that was suspended on or after October 1, 2000.

    2. Example 2: If the taxpayer’s fiscal year runs from December 1, 1999 through November 30, 2000 and the taxpayer has a $10,000 research credit, no credit is allowable on the original return because all 12 months involve the first or second suspension period. The taxpayer can file a claim for $8,300 (83% = 10 out of the 12 months involved in the first suspension period, December 1999 through September 2000) after their return is filed for the period ending November 30, 2000; and the taxpayer can file a claim for the remaining $1,700 (second suspension period for October and November 2000) on or after October 1, 2001.

    3. Example 3: If the taxpayer files a calendar year return for the year 2001 and the taxpayer has a $50,000 research credit, $12,500 (25% = 3 months for October, November & December out of 12 months) is allowable on the original return. Even though the due date of the original return (3/15/2002) is after the date the second suspension period expires (10/01/2001), the taxpayer cannot claim the suspended portion of the credit on their original return. The taxpayer can file a claim for the $37,500 suspended credit anytime after they file their original return.

  7. Any research credit not allowed in the taxable year that is attributable to a research credit suspension period may not be claimed as a carryback or carryforward until the day after the end of the applicable research credit suspension period. After the end of the applicable research credit suspension period, however, research credits attributable to a research credit suspension period not used currently as a credit against tax may be carried to other taxable years under the rules of IRC 39.

  8. During these suspension periods, the research credit is not used to determine any amount required to be paid for any purpose under the Internal Revenue Code. This restriction extends to the determination of underpayments for the computation of penalties and additions to tax.

  9. In general, additions to tax for failure to pay estimated tax are made under IRC 6654 or IRC 6655 for any underpayment of income tax imposed by the Code even if the underpayment is created or increased because of the suspension of the research credit. No additions to tax for failure to pay estimated tax, however, are made for any period before July 1, 1999, for any underpayment of income tax imposed by the Internal Revenue Code to the extent the underpayment is created or increased by reason of the suspension of the research credit. See Notice 2001-2.

  10. In determining estimated tax payments, a credit created by a claim for research credit can only be applied to an estimated tax payment that is due after the suspension period expires. An example of this is a credit attributable to the second suspension period cannot be used to reduce any estimated tax payment due before October 1, 2001.

  11. Since the taxpayer can apply a credit from a suspension period to an estimated tax payment, pay special attention to the preparation of Sequa Worksheets for interest computations. See IRM 8.17.6.10.3 for information on preparing the Sequa Worksheets when the taxpayer claimed research credits which are subject to the suspension periods.

  12. The suspension periods also affect the availability dates (e.g. interest computation date) of credits/abatements against the taxpayer’s tax liability, and must therefore be taken into consideration when preparing Form 2285 for restricted interest computations.

8.7.1.4.3  (10-01-2012)
Preparing Settlement Computations Involving Research Credit

  1. These procedures are used by the Appeals employee preparing the settlement computations (AO or TCS).

  2. A statement may be required in the settlement computation (on Form 3610, 5278, 4549, etc.) as discussed below:

    1. Restricted interest information may be needed.

    2. Determine whether any of the suspension periods apply, and if so, notate this in the settlement computation.

  3. See Exhibit 8.7.1-1 for an example of a research credit case where Form 3610 is used to show the restricted interest and the suspension period information.

  4. Prepare the appropriate forms (i.e., Sequa Worksheet and/or Form 2285) necessary to identify the availability dates for interest computations.

    1. Attach the Sequa Worksheet behind the Form 5403 Worksheet. Indicate if May/Sequa applies on the Form 5403 Worksheet.

    2. If a Form 2285 is prepared, enter the applicable code section in the appropriate tax year column of the Form 5403 Worksheet. Attach the Form 2285 to the Form 5403 Worksheet.

    3. The ATE is responsible for ensuring that the Sequa Worksheet and Form 2285 are attached to the Form 5403 Worksheet when the case is closed.

8.7.1.5  (10-01-2012)
Valuation Issues in Appeals Cases

  1. The purpose of this section is to make Appeals Technical Employees aware of Art Appraisal Services, a function within Appeals, and to encourage contact with this office when needed. The office maintains a core of financial analysts and art appraisers to assist service personnel on their cases. In addition, the office can assist Appeals Technical Employees in locating experts in other fields.

8.7.1.5.1  (10-01-2012)
Requests for Art Appraisal Service Assistance

  1. The AO consults with Art Appraisal Services on any case claiming a value for a single work of art in excess of $50,000. Telephone discussions with this office are encouraged in order to take advantage of expert advice and to facilitate the handling of all referrals for valuation assistance. To determine information and items necessary to obtain valuation assistance on works of art, see IRM 8.18.1, Valuation Assistance Procedures, for detailed instructions and procedures.

  2. Requests for Art Appraisal Services assistance must be submitted through the online Specialist Referral System (SRS). Referrals may be created at https://srs.web.irs.gov/default.aspx.

  3. Requesters are encouraged to contact the valuation specialists by telephone to informally discuss a valuation problem to determine the type of assistance required. For detailed instructions and procedures, see IRM 8.18.1, Valuation Assistance Procedures.

8.7.1.6  (11-06-2007)
Jeopardy and Termination Assessments Cases

  1. Code Section 7429 provides for administrative and judicial reviews for jeopardy and termination assessments.

  2. Appeals procedures for termination assessment cases are in many respects the same as for jeopardy assessments.

  3. The following subsections provide procedures for processing these type cases.

8.7.1.6.1  (10-01-2012)
Jeopardy Assessments

  1. Jeopardy assessments are made under IRC 6861 or IRC 6862. These sections provide an expedited assessment procedure when tax collection is endangered if regular assessment and collection procedures are followed. IRC 6867 allows the Service to presume that tax collection will be jeopardized in certain circumstances where an individual is in physical possession of an unidentified large amount of cash.

    1. IRC 6861 applies to assessments of deficiencies of income, estate, gift and certain excise taxes

    2. IRC 6682 applies to taxes other than income, estate, gift and certain excise taxes whether or not the due date for filing and paying the tax expired.

  2. Service policy on jeopardy assessments is found in Policy Statement P–4–88. Also see IRM 4.15.1, Jeopardy and Terminations, and IRM 5.1.4, Jeopardy, Termination, Quick and Prompt Assessments.

8.7.1.6.2  (10-01-2012)
Jeopardy Assessment Procedures for Compliance

  1. Under IRC 7429(a), the Compliance Area Director has five (5) days after a jeopardy assessment to furnish the taxpayer with a written statement of the information the Service relied on in making the assessment. See IRM 5.1.4.1 for a pattern letter.

  2. As a result of the enactment of the IRS Restructuring and Reform Act of 1998 on July 21, 1998, it is now a statutory requirement for Chief Counsel or his/her delegate to approve all jeopardy and termination assessments and all jeopardy levies. Approval is now required by Counsel in ALL cases, not just in cases where time permits. IRC 7429(a)(1)(A).

  3. Jeopardy assessments initiated by Collection personnel are limited to proposed:

    1. Trust Fund Recovery Penalty assessments;

    2. Employment and excise tax assessments, whether or not the return due date expired;

    3. Partnership penalty assessments;

    4. Income tax assessment when there is no question about the amount of the liability.

  4. A jeopardy assessment is requested:

    1. when it is determined collection is in jeopardy;

    2. when one or more of the four conditions outlined in P-4-88 exists;

    3. for Trust Fund Recovery Penalty assessments, and IRC 6020(b) assessments, for which appropriate appeal/protest periods are not expired;

    4. when assessment/collection action is proposed after the return due date for a signed return for income tax liabilities.

8.7.1.6.3  (10-01-2012)
Jeopardy Assessments On Cases Pending in Appeals

  1. The area Examination function occasionally investigates cases pending in Appeals to determine the need for a jeopardy assessment. An investigation by the Examination function is limited to whether collection of any proposed deficiency is endangered by any circumstance that might adversely affect the taxpayer's ability to pay or the Government's ability to collect. Appeals keeps responsibility for making the final determination of the tax liability in controversy.

  2. If a jeopardy assessment is not warranted on a case referred to the area for investigation, the Area Director returns the case to the Appeals Office with a notice to that effect.

  3. When a jeopardy assessment is warranted, it is made by the Area Director. The case and jeopardy assessment file are immediately returned to the Examination function that referred the case. In income, estate and gift tax cases, Appeals issues any notice of deficiency required by IRC 6861(b). Send a copy of the notice of deficiency to the appropriate Examination function.

  4. When a case and jeopardy assessment file are returned to Appeals, only consider the issues in the tax case. The taxpayer needs to ask for a review of the jeopardy determination and appropriateness of the amount assessed for Appeals to consider it.

  5. IRC 7429(b) permits a taxpayer to seek judicial review of a jeopardy determination of the appropriateness of the amount of the jeopardy assessment. The period for seeking judicial review is the earlier of the 16th day after requesting Appeals review of the jeopardy assessment or the date Appeals notifies the taxpayer of its determination. Therefore, Appeals should complete its review of the jeopardy determination and the appropriateness of the assessed amount, and should issue a written determination to the taxpayer, within 15 days after the taxpayer makes his request for Appeals review under IRC 7429(a)(2).

  6. Some jeopardy assessments lend themselves to complete resolution of both the merits of the liability and the reasonableness of the jeopardy determination. Therefore, both aspects can be resolved by agreement if the action is taken within 15 days after the taxpayer's request is filed or the taxpayer decides not to request judicial review of the assessment in District Court.

8.7.1.6.4  (10-01-2012)
Termination Assessments

  1. The Area Director makes a termination assessment under the conditions found in Policy Statement P-4-89 and the procedures in IRM Part 4. Time limitations for holding Appeals conferences, rendering a prompt decision, and statutory provisions for filing suit in District Court are the same as for jeopardy assessment.

  2. Because of time limitations involved, if the taxpayer provides new information or documentation to the AO, the Area Director may need to promptly comment on the new evidence. Appeals retains jurisdiction over the case in instances where the Area Director comments on the new evidence.

  3. Inform the taxpayer of the right to judicial review under IRC 7429(b) when a taxpayer does not agree with the Appeals decision. Return the case file and a report, in duplicate, to the Area office Examination function.

  4. At the end of the full tax year, the taxpayer is required to file a full year return. Generally, Examination function is responsible for issuing the notice of deficiency required under IRC 6851(b) for the taxpayer's taxable year. Area office and Campus controls are established to determine whether or not the taxpayer files a full year return.

  5. Examination function either examines the taxpayer's return or prepares a substitute for the return. The taxpayer may protest the notice of deficiency and come to Appeals. In some cases, it is possible for Appeals to receive the case prior to issuance of the notice of deficiency. In these cases, Appeals issues the notice of deficiency. If Appeals issues the notice of deficiency, a copy of the notice is sent to the appropriate Examination function.

8.7.1.6.5  (10-01-2012)
APS Processing Termination and Jeopardy Assessment Cases

  1. These cases will not be controlled on AIMS unless the taxpayer files a return with Examination for the full taxable year. If the taxpayer does file, Examination will establish the full year return on AIMS.

  2. Appeals findings will result in one of the following actions:

    • Area sustained in full

    • Area sustained in part

    • Jeopardy or Termination assessment not warranted (the collection of the tax was not in jeopardy)

    • Taxpayer agreement with the action taken

  3. If Appeals sustains the area in full (taxpayer does not agree):

    1. Close ACDS following general closing instructions. CLOSINGCD = 20.

    2. Return the file to Examination.

  4. If Appeals sustains the area in part (taxpayer does not agree):

    1. On Form 5402, request Examination make the appropriate abatement.

    2. Close ACDS following general closing instructions. CLOSINGCD = 13.

    3. Return the file to Examination.

  5. If Appeals finds that the jeopardy or termination assessment was not warranted:

    1. On Form 5402, request Examination abate the entire assessment, release liens and any levies, as appropriate, and effect appropriate refund or credit.

    2. Close ACDS following general closing instructions. CLOSINGCD = 03.

    3. Return the file to Examination.

  6. If Appeals reaches agreement with the taxpayer:

    1. On Form 5402 request Examination abate any excessive tax assessed.

    2. Close ACDS following general closing instructions. CLOSINGCD = 03.

    3. Return the case to Examination.

  7. If the taxpayer files a civil suit at any time prior to the conclusion of the administrative appeal, Collection (Advisory) will request the entire file, including Form 5402. Appeals procedures will be suspended.

  8. Retain a copy of the file to issue a statutory notice of deficiency within the required period for issuance, which, for a termination assessment, is 60 days after the later of the date the taxpayer files a return for the full taxable year or the due date of the return as extended. The 60-day period does not commence until a return for the taxpayer’s annual accounting period is filed. For a jeopardy assessment, the statutory notice of deficiency must be issued within 60 days after the assessment is made. Send a copy of any report prepared by Appeals to Counsel within 24 hours. On ACDS, enter:

    1. ACTION DDJRET, and

    2. TODATE the date the case file was sent to special procedures function, Collection Division.

  9. Send the following to the Compliance Area Director:

    1. Copies of reports of reconsideration by Appeals and

    2. Copies of any statutory notices issued by Appeals on cases under jurisdiction.

  10. Transmittals to Examination and requests for abatements should be coordinated with Examination prior to returning the case files. Prepare Form 5403 marking the "Source Document Only" box at the top of the page.

    1. In Item 12 show the amount to be abated.

    2. Omit entries 800–811.

    3. In Item A, enter the following: "Abate excessive portion of jeopardy assessment manually. Full year return has not been filed. Do not process through terminal."

    4. Prepare Form 1331, Notice of Adjustment.

  11. Prepare Form 5403 for any full year returns established on AIMS. In Item 12 enter the NET deficiency (overassessment). Consider the amount previously assessed (including the termination assessment) and the tax liability on any tax return filed for the full year.

  12. Show the following computation in Item A or as an attachment, cross-referenced in Item A. Include a transcript of account in the administrative file.

    • Termination Assessment (adjusted for any overassessment allowed) $___

    • Liability per full year return (assessed or unassessed)$____

    • Total of 1 and 2 $___

    • Correct liability $____

    • Item 12 amount (+ or –) $____

8.7.1.7  (10-01-2012)
Civil Cases Involving Department of Justice

  1. The Department of Justice (DOJ) has exclusive jurisdiction over any action in which a taxpayer has filed a suit in the United States District Court or in the United States Court of Federal Claims for recovery of taxes paid.

  2. When a suit for refund of taxes is filed and the taxes at issue are part of a pending case, further consideration is postponed on the case, including all years under consideration (suit and nonsuit) and on any related cases.

  3. However, it is not necessary to postpone consideration for years not in litigation if the issues in the nonsuit years are unrelated to the issues in the years under litigation. In such situations, contact the DOJ through local Associate Area Counsel (to obtain permission to consider non-suit years).

  4. Either the Campus or Associate Area Counsel notifies the appropriate Appeals office when a suit for refund is filed in a case pending before Appeals. See IRM 5.8 for cases in suits involving offers in compromise.

8.7.1.7.1  (10-01-2012)
Closing Department of Justice Cases

  1. Appeals is notified when the case jurisdiction changes to Department of Justice (DOJ), exclusively.

  2. After the Appeals Officer prepares the case for release to DOJ, close the case on both AIMS and ACDS. Once this is complete and administrative file recharged, send the file to Counsel.

  3. Prepare Form 5403 to close the AIMS file. Use "copy" procedures:

    1. Item 12 - Enter TC 300 for $0.

    2. Items 800 through 810 - Enter appropriate statistical information.

    3. Item 811 - Enter closing code 18 or 19, as appropriate.

    4. Attach a copy of the face of the return and Form 2275, Records Request, Charge and Recharge, to the Form 5403. Forward Form 2275 to the Campus to "recharge" the administrative file and original return to Department of Justice.

  4. Update ACDS following general closing instructions:

    1. CLOSINGCD - 18 or 19, as appropriate.

    2. ACTION - ACKCLS.

    3. TODATE - Date administrative file is delivered to Counsel.

    4. FROMDATE - Date acknowledgment received from Counsel.

  5. The above instructions apply only to cases in Appeals jurisdiction. If a taxpayer petitions the District Court or Claims Court while in Examination jurisdiction, the DOJ transfer is coordinated between Examination and Counsel without involvement by Appeals. The case WILL NOT be controlled on ACDS.

8.7.1.8  (11-06-2007)
Appeals Procedures on Refund Suits

  1. This section explains procedures for handling Refund Suits in various scenarios. It provides information on the following:

    • When to issue the notice of claim disallowance.

    • What to do if the case involves an application to reconsider a claim previously disallowed.

    • What information should go in the Appeals Case Memorandum.

    • What to do before issuing a statutory notice of deficiency on the suit years.

    • What happens if the taxpayer files a petition with the Tax Court.

    • How to handle related cases that are in Appeals for consideration.

8.7.1.8.1  (10-01-2012)
Refund Suits with No Deficiency in Appeals Cases

  1. After notice that a suit has been filed in an Appeals case involving no deficiency, issue the notice of claim disallowance (when required) and prepare Form 5403, Appeals Closing Record (which identifies the case as a court case).

  2. Forward the return to Account and Processing Support (APS) for processing. APS completes action and assigns a new DLN, then promptly sends the administrative file, including the return, to Counsel.

  3. However, if the Campus maintains a follow-up control on the Refund Litigation file, forward the administrative file to the Campus, referring in the transmittal to the Campus's Refund Litigation control number.

8.7.1.8.2  (11-06-2007)
Refund Suits with Disposition of Pending Claims

  1. If a claim has not previously been disallowed or Form 2297, Waiver of Statutory Notification of Claim Disallowance, was not signed by the taxpayer, issue a statutory notice of claim disallowance.

  2. If the case involves an application for reconsideration of a claim previously acted upon, prepare Form 5403 to transmit the return to APS and enter the date the notice of claim disallowance was issued or the date Form 2297 was filed. Finally, advise the taxpayer that, because of filing suit, the case is under jurisdiction of the Department of Justice and Appeals will give no further consideration to the case.

8.7.1.8.3  (10-01-2012)
Refund Suits with Statutory Notice of Deficiency Issued

  1. Before issuing a notice of deficiency on the suit years, consult with the Department of Justice through Counsel, for advice and concurrence. If the Department of Justice concludes a notice of deficiency should be issued, they notify Counsel, who notifies the appropriate Appeals office.

  2. If the notice of deficiency raises an issue under a specific Internal Revenue Code section or Tax Court Rule 142 that places the burden of proof on the Government with respect to the issue, consider sending the proposed notice to Counsel for consideration.

  3. However, there is no need to consider sending the proposed notice to Counsel if the burden of proof issue involves only IRC 7491. Also notify Counsel if you have information the taxpayer will petition the Tax Court after receiving a notice of deficiency.

8.7.1.8.4  (10-01-2012)
Refund Suits with Deficiency in Appeals Cases

  1. If there are proposed deficiencies before Appeals for years involved in the suit, Form 5402 and accompanying ACM used to forward the return to Account and Processing Support must include the following:

    1. the amount of the proposed deficiency;

    2. the basis for determination;

    3. if possible, an expression of Appeals' views on whether a statutory notice of deficiency should be issued; and

    4. date of expiration of statutory period of limitations.

8.7.1.8.5  (11-06-2007)
Refund Suits When Petition is Filed with US Tax Court

  1. If the Tax Court acquires jurisdiction, process the case the same as other docketed cases. Chief Counsel notifies the Department of Justice that a petition was filed. See IRM 8.4.1, Appeals Docketed Cases.

8.7.1.8.6  (10-01-2012)
Refund Suits Affecting Related Appeals Cases

  1. Appeals may have pending cases related to issues in suit involving either the same or different taxpayers. Use Form 5402 to transmit the years in suit, indicating the related cases are pending before Appeals, the issue involved, and the relationship with the years in suit. Also request prompt advice on disposition of the years in suit.

  2. If further consideration of related cases appears warranted, ask Counsel to determine whether the Department of Justice has any objection to adjusting the nonsuit year(s). Before taking final action on any related case covering the nonsuit year(s), ask Counsel to determine if the Department of Justice has any objection to the proposed disposition. If the Appeals case covering the nonsuit year(s) is docketed in the Tax Court, Counsel (rather than Appeals) coordinates action with the Department of Justice.

  3. For Department of Justice cases (or related issues or cases) involving closing agreements, see IRM 8.13.1, Closing Agreements.

8.7.1.8.7  (11-30-2001)
Settlements by Department of Justice (DOJ)

  1. This section covers the different settlements handled by the Department of Justice, specifically those where the settlement affects cases pending in Appeals.

  2. If the Department of Justice receives a proposal of settlement in a case previously considered by Appeals that affects only years in suit, Counsel does not refer the proposal to the Appeals office for comment unless circumstances warrant coordination.

8.7.1.8.7.1  (10-01-2012)
DOJ Settlements Affecting Appeals Cases

  1. If the proposal of settlement affects cases pending before Appeals, other than docketed Tax Court cases, Counsel refers the proposal directly to the Appeals office for comment. Comments furnished to Counsel must be limited to adequacy of the proposal. If there is an issue in the Appeals case not present in the years in suit and not covered by the proposal of settlement, call the issue to the attention of Counsel. Also, mention any other factor which might cause problems with acceptance of the proposal. Do not enter into further settlement negotiations with the taxpayer without specific authorization.

  2. Delegation Order 155, as revised, delegates authority to Chief Counsel and the Associate Chief Counsels, to sign recommendation letters to the DOJ concerning settlement offers for years or parties not in suit, but related to pending refund suits for other years or parties.

  3. In exercising this authority, consider the advice of the Area Director of the Appeals office with jurisdiction over the nonsuit years or parties.

8.7.1.8.7.2  (11-06-2007)
Disposition Based Upon Department of Justice Settlement

  1. When Counsel notifies Appeals a settlement is accepted by the Department of Justice, dispose of the case for the nonsuit year(s) in the usual manner. Counsel disposes of the refund suit years. Resolve issues not covered in the settlement using normal procedures. Avoid entering into any agreement before the settlement of the years in suit is effective.

8.7.1.9  (11-06-2007)
Cases Involving Criminal Prosecution and Restrictions on Appeals Jurisdiction in Criminal Cases

  1. Appeals does not act on civil liability in a pending criminal prosecution case without concurrence of Criminal Investigation.

  2. In any case in which prosecution for criminal fraud is recommended to the DOJ, or in which the question of liability for criminal fraud remains under investigation, treat criminal prosecution as pending until a final disposition is made on the criminal aspects. IRM Part 4 and the Policies of the Internal Revenue Service Handbook, contain text relative to cases with criminal fraud implications.

  3. Appeals may act on civil liability when notified in writing by Criminal Investigation that:

    1. Recommended criminal prosecution was declined and no court proceedings will be instituted; or

    2. All court proceedings which were instituted as the result of the recommendation for criminal prosecution are complete.

  4. Appeals may act on civil liability when court proceedings on criminal prosecution are not fully completed, but only if the Department of Justice has given clearance for a determination or a settlement, in whole or in part.

  5. Under Policy Statement P-4-26, Appeals takes no action that would imperil successful criminal investigation or prosecution. In cases where Criminal Investigation did not recommend criminal prosecution but the case is pending with the DOJ, or an indictment was, in fact, returned charging attempt to evade or defeat tax or willful failure to file a return, coordinate with Criminal Investigation on intended action in the case. Criminal Investigation, in coordination with the DOJ, is better able to determine whether contemplated Appeals action on the case is contrary to the Government's interests in the criminal case.

8.7.1.9.1  (11-06-2007)
Appeals Jurisdiction in Criminal Cases

  1. The notice of Criminal Investigation referred to above releases Appeals from the restriction to act on criminal cases imposed by Delegation Order No. 66, as revised. However, the notice received from Criminal Investigation in pending criminal cases may have limitations or qualifications. Appeals authority is subject to any of these restrictions.

8.7.1.9.1.1  (11-06-2007)
Appeals Case Memo or Status Report on Pending Criminal Case

  1. State in the Appeals Case Memo (ACM) that there are criminal aspects in the case and indicate whether or not such aspects were completed.

  2. If Criminal Investigation's notice of clearance is prior to the completion of final criminal action and:

    1. Appeals action is completed within 45 days from the date of notice, give Criminal Investigation four extra copies of the Appeals Case Memo.

    2. Appeals action is not completed within 45 days from the date of notice, forward a status report (with four copies) at the end of that period to Criminal Investigation and send a similar report every 30 days until completion. Document the Status Report with any lack of cooperation or good faith on the part of the taxpayer or taxpayer's Counsel. Upon completion, give the Appeals Case Memo (with four extra copies) to Criminal Investigation.

8.7.1.9.2  (11-06-2007)
Report to Criminal Investigation When Convicted Taxpayer on Probation

  1. Appeals may consider the civil liability of a taxpayer convicted of violating the internal revenue laws and placed on probation for a specified period of time conditioned upon satisfactory settlement and/or payment of civil liability for taxes and penalties.

  2. Promptly inform the Special Agent in Charge, Criminal Investigation for the originating field office of any lack of cooperation, or any other act of the taxpayer, that appears intended to delay or to interfere with an orderly determination of liability. Also, give a Status Report on the case to the Special Agent in Charge, Criminal Investigation, no later than 60 days before the expiration of the probationary period or upon completion of the case, whichever occurs first.

8.7.1.9.3  (11-06-2007)
Civil Liabilities After Criminal Aspects Closed

  1. After disposition of criminal aspects of a case, the administrative file is forwarded to Appeals for consideration of any unsettled civil liabilities within its jurisdiction.

  2. The closed enforcement file received by Appeals reveals any additional facts or evidence obtained by Criminal Investigation or developed in any pretrial investigation by a special agent. It also reveals whether or not the case was tried. If tried, or if additional evidence was developed, there is a special agent's summary report, prepared in accordance with instructions in IRM Part 9. If the file does not contain the required report, request it from the area Criminal Investigation function.

  3. Include a concise statement in the ACM about the joint investigation by a special agent and revenue agent, the results, and the disposition of any recommendations for criminal prosecution.

8.7.1.10  (10-01-2012)
Disaster Relief Cases

  1. If a disaster occurs and the President declares the area to be a "federally declared disaster area" , FEMA will designate certain areas within the disaster area to be eligible for Individual Assistance under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C., Sections 5121-5206 (Stafford Act). Because taxpayers and tax practitioners may require disaster/emergency relief measures to enable them to meet their tax obligations for filing returns or paying taxes without being penalized, the IRS will provide filing and payment relief to affected taxpayers located in the areas designated by FEMA to be eligible for individual assistance. Certain compliance actions may be temporarily suspended - in accordance with IRC 7508A, Authority to Postpone Certain Deadlines by Reason of Presidentially Declared Disaster or Terroristic or Military Actions.

  2. The Disaster Assistance and Emergency Relief Program is a service-wide program under the stewardship of SBSE, Communications and Stakeholder Outreach (CSO), Stakeholder Liaison (SLHQ). The Director of CSO issues a Memorandum for Distribution stating that the president declared a "disaster area identified by the Federal Emergency Management Agency (FEMA)" to be eligible for individual assistance under the Stafford Act. This memorandum will identify the specific disaster, the disaster date (or beginning disaster date), the declaration date, "specific acts postponed," the IRS designated disaster area(s), etc. The memorandum is for internal use only. The taxpayer can obtain external notices at www.irs.gov in the section entitled, Tax Relief in Disaster Situations. See Appeals' Disaster Assistance and Emergency Relief web page for additional information, including links to specific disaster assistance declarations.

  3. The Director of FEMA appoints a Federal Coordinating Officer (FCO) to coordinate FEMA's disaster assistance efforts and work with other federal agencies on relief issues.

  4. IRS will issue a Notice of Disaster Declaration from FEMA that identifies the disaster, incident period, the FCO, the IRS designated area(s), and type of assistance available. The IRS Notice of Disaster Declaration can be amended, if additional designations are made after further evaluation. However, the Memorandum for Distribution (previously issued by CSO) is not changed as a result of additional designations. The Appeals Technical Employee (ATE) should rely on the instructions contained in the CSO's Memorandum for Distribution to determine the specific acts postponed, account freezes, the requirement for stuffers and/or soft contact letters, etc.

  5. The IRS IT organization (Information Technology) identifies the "affected taxpayers" by zip codes in the designated disaster areas.

  6. Role of Appeals - Appeals will follow the guidelines contained in the CSO's Memorandum for Distribution and IRS' Notice of Disaster Declaration from FEMA. Appeals will take the following steps after IT has identified the taxpayers in the designated disaster areas - by zip codes:

    • A Strategic Planning / Measures & Analysis (SPMA) program analyst will prepare a spreadsheet with a list of all Appeals inventory identifying taxpayers located in the IRS covered disaster area(s). The SPMA analyst will forward the list to the designated Tax Policy & Procedures (TPP) program analyst. In addition, SPMA will include the following email attachments: (a) CSO's Memorandum of Distribution and (b) the IRS Notice of Disaster Declaration from FEMA.

    • A Tax Policy & Procedures (TPP) analyst will send an e-mail notice (with attachments) to Area Technical Advisors, who will determine the need to forward information to the Appeals team level. The TPP analyst's email will contain reminders for the ATE to consider the need for Notice 1155, Disaster Relief from the IRS and/or soft contact letters, as directed in CSO's Memorandum for Distribution.

    • Appeals Policy requires the input of the "DR" (Disaster Relief) feature code on ACDS for "affected taxpayers" identified for suspension. If the ATE has not identified the taxpayer for suspension, the "DR" feature code should not be added. The ATE can determine the need to suspend action by sending the taxpayer a "soft contact letter" to determine the effect of the disaster on the taxpayer. The ATE can find a sample "soft contact letter" on Appeals' Disaster Assistance and Emergency Relief web page. The ATE should consult the ATM's manager to determine the need to suspend action on a case. Also, the ATE should review CSO's Memorandum of Distribution to determine the specific acts eligible for postponement under the servicewide guidelines. The ATE's decision to allow additional time would be based on local procedures.

  7. The ATE should refer to IRM 25.16.1,Special Topics, Disaster Assistance and Emergency Relief, Program Guidelines for the servicewide instructions in working Disaster Relief cases. It provides:

    1. Program guidelines and Stewardship;

    2. The role of the National Disaster Assistance Coordinator (DPO) and the State Disaster Assistance Coordinator (SDAC);

    3. The Government Liaison (GL) and the Stakeholder Liaison Response Plan;

    4. Disclosure Provisions When Providing Emergency Relief;

    5. General Procedures for all operating divisions;

    6. Definition of Terms and acronyms used during a disaster;

    7. A sample pre-disaster awareness message; and

    8. A complete discussion of the "-O" freeze and the "-S" freeze.

  8. Appeals employees should become familiar with specific disaster relief "freeze" codes on the Integrated Data Retrieval System (IDRS). See IRM 25.16.1.6 and refer to Document 6209, IRS Processing Codes and Information. These freeze codes are systemic disaster indicators - on IRS Master Files - available to assist in identifying and processing disaster relief cases. The freeze codes will appear on IMFOLI, BMFOLI, and TXMODA. A Transaction Code 971 AC 688 will also post to ENMOD, See IRM 25.16.1.6.1 for guidance in those instances where an employee receives a taxpayer's request to self-identify for disaster relief. Affected taxpayers who reside or have businesses located outside the designated disaster area MUST call 1-866-562-5227 to self-identify for disaster relief. After they have self-identified, a transaction code (TC) 971, action code (AC) 688 will post to IDRS.

Exhibit 8.7.1-1 
Sample Forms 3610 and 6765

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