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Appeals Technical Employees include the following positions:
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Appeals Officer (AO)
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Settlement Officer (SO)
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Technical Guidance Coordinator
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Appeals Team Case Leader (ATCL)
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International Specialist
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Tax Specialist and Appeals Service Center Program Specialist
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Tax Computation Specialist (TCS) working Appeals Officer cases
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Appeals Account Resolution Specialist (AARS)
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Appeals Technical Employees are responsible for protecting assessment statutes and monitoring collection statutes on all cases assigned to them. Their responsibility includes:
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Monitoring statutes on non-docketed cases they send to Counsel.
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Verifying suspended statutes to ensure they fit the suspension criteria.
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If Appeals Technical Employees are not in the office, absent a factor outside the technical employee's control, such as an emergency, they must notify their Appeals Team Manager (ATM) of any action needed to protect a short statute in their absence.
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Within five (5) workdays from receipt of the case, the Appeals Technical Employee reviews the file to determine all statute dates are correctly shown on Appeals Centralized Database System (ACDS). This review includes verification of the original statute, as well as validation of all extensions.
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Since many cases are transferred due to workload considerations, additional consideration is necessary with respect to special consents. If the preliminary review indicates one or more statutes are extended using a Form 872-A, Form 872-IA, Form 872-O, or Form 872-R special consent, mail Form 872-U, Change of IRS Address to Submit Notice of Termination of Special Consent to Extend the Time to Assess Tax, to the taxpayer.
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Make an entry in the Case Activity Record (CAR) to indicate that the statute date was verified. Also, include an explanation of any unusual considerations pertaining to the statute of limitations.
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If the statute date shown on ACDS is incorrect, the Appeals Technical Employee provides the correct statute date(s) to Appeals Processing Services (APS) by generating and sending the ACDS Update Request Form following the procedures below:
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Send the ACDS Update Request Form by secure email to the Processing Team Manager (PTM) responsible for the location. The ACDS Update Request Form located on APGOLF must be used.
Note:
The ACDS Update Request Form is only used to correct statute dates. Do not use it to update the statute when a consent is received. See IRM 8.21.3.1.3.4. for procedures to follow when updating the statute because of a consent
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The PTM forwards the e-mail to the Tax Examiner assigned to correct ACDS.
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Once the request is complete, the Tax Examiner e-mails the requestor and PTM. If the error is not corrected within 72 hours, the PTM makes the correction and notifies the requestor and Tax Examiner that it is complete.
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The PTM files the completed e-mail along with the request document, in an offline e-mail subfolder entitled "ACDS Updates."
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If the correction is not completed within 72 hours, the requester contacts the same PTM who was sent the original ACDS Update Request Form.
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After submitting the correct statute date(s) to APS, the Appeals Technical Employee verifies the update was made by accessing ACDS. If ten (10) workdays pass and the correction does not appear, the Appeals Technical Employee contacts his/her ATM who will contact the Processing Team Manager (PTM).
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If there is doubt as to the correct statute date, use the earliest date determined. Immediately notify APS that a correction to ACDS is needed.
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If assigned a docketed case, the Appeals Technical Employee reviews one of the following documents to ensure that all non-petitioned spouses (NPS) and non-petitioned years (NPY) are assessed:
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Form 5403 with a noted DLN and 23c date.
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TXMOD/IMFOL/BMFOL showing the assessment.
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Appeals Technical Employees should request a transcript every six months on any tax period with an ACDS statute code "SUB" to verify that a return was filed by the taxpayer. The filing of a return starts the running of a live statute from the date the return is received.
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Appeals Technical Employees are responsible for monitoring their time sheet and monthly statute lists to ensure APS correctly and timely updated statute dates on ACDS.
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Appeals Technical Employees will generate a monthly 180-day Statute Report from ACDS on inventory cases. They will annotate the list by the 5th workday of the month with appropriate status/actions to be taken and submit it to the ATM. The comments will include the date consents were solicited, received and sent to APS.
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The ATM must be made aware of any previously submitted cases appearing on the list with 45 days or less remaining on the statutory period. In these instances, the ATM will follow-up with the PTM to confirm the case will timely close.
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The Appeals Technical Employee determines if a statute requires protection to ensure the statutory period for assessment does not expire. The statute is protected by doing any of the following:
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Assessing the appropriate deficiency or overassessment on an agreed case.
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Securing a consent to extend the statute of limitations.
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Issuing a statutory notice of deficiency.
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Consider seeking advice from Counsel when unusual or complex consent/statute questions arise.
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Generally cases are received with ample time left on the statute to resolve the issues and close the case. Initiate statute protection at the point in time it is determined that resolution of the case may not occur within the specified time frame.
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The protection can be initiated at any time; however, when there are 150 days left on the statute and it has been determined that no settlement will be reached, the Appeals Technical Employee must protect the statute by securing a consent or initiating preparation of a Statutory Notice of Deficiency (SND).
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Below are time-frames to follow:
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Solicit a consent from the taxpayer or authorized representative no later than150 days before the statutory period expires.
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Follow-up within 30 days to ensure receipt of the consent by 120 days before the statutory period expires.
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If the 30 days elapse and there are only 120 days remaining on the statute and a consent has not been secured, consult with the ATM to determine whether to continue working on the case or to initiate preparation of an SND. Written permission from the ATM is required to keep a case beyond the 120-day guideline. Granting permission does not address the performance aspects of the employee's Critical Elements.
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If 90 days remain on the statute and no consent is received, immediately initiate preparation of SND. Notify the ATM, PTM and Appeals Tax Computation Specialist Manager (ATCTM) by secure email that the case is being submitted for SND preparation.
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If a consent is received while the case is in TCS for preparation of a SND, immediately notify the ATCTM to withdraw the work request.
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Statute dates on estate tax cases cannot be extended by consent under any circumstance. Since many new estate tax cases are received in Appeals near the 180-day deadline for accepting cases, the time to consider and resolve an estate tax case may be very limited.
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Appeals Technical Employees must consult with their ATM on any estate tax case that has only 120 days remaining on the statute. Written permission from the ATM is required to keep a case beyond the 120-day guideline. It is recognized that under these guidelines, a statutory notice of deficiency may need to be prepared even though Appeals consideration is just getting underway. Granting permission does not address the performance aspects of the employee's Critical Elements.
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Follow the time frames below. However, if a settlement is imminent, the ATM and Appeals Officer should discuss whether to allow more time in order to proceed to preparing a settlement computation, rather than preparing an SND.
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Initiate preparation of SND when no settlement is reached and only 90 days remain on the statute.
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Notify the ATM, PTM and the ATCTM by secure email the case is being submitted for SND preparation with only 90 days remaining on the statute.
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Complete Form 10495 (Memorandum Re Statute Paragraph) when at least 120 days remain on the statute and no statute protection is necessary. The ATM countersigns the form.
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The Appeals Technical Employee assigned the case forwards a copy of the completed Form 10495 to APS and attaches a copy of the form to each affected tax return.
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When soliciting a consent from the taxpayer, ensure that the consent form contains the notification required by IRC Section 6503(c)(4)(B), requiring the Service to notify taxpayers of their right to refuse to extend the period of limitations.
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Section 3201(d) of the Internal Revenue Service Restructuring and Reform Act of 1998 (RRA 98) requires the Service, whenever practicable, to send any notice related to a joint return separately to each individual filing a joint return. Chief Counsel's office has advised that Appeals can satisfy the requirements of Section 3201(d) for joint returns, by sending only one consent form and Letter 967 (Letter Transmitting Consent Extending Period of Limitation) when the Appeals Technical Employee is confident that both spouses live at the same address.
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To verify that both spouses live at the same address, the Appeals Technical Employee must verify (either by phone or in person) during the first contact that the last known mailing address is still correct for each spouse.
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One consent form signed by both spouses or two consent forms signed by each spouse is sufficient verification that both spouses received notice of their rights.
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If a consent form is received with only one signature, it cannot be determined with any certainty that the other spouse received the required notice of their rights. In this case, the employee must contact the non-signing spouse to determine why there was only one signature on the consent form. The employee will obtain a correct address and send a separate consent form and Letter 967 to the spouse who did not sign the consent form.
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When a valid, signed consent is received from the taxpayer or authorized representative, the Appeals Technical Employee or other delegated individual will execute the consent and forward a copy to APS within five (5) days. See IRM 8.21.2.5 for a discussion of actions taken by APS.
Note:
Normally, faxed signatures are not valid; however, Counsel has advised in certain circumstances faxed signatures may be valid. Consult Area Counsel if you receive an executed consent via fax.
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APS will update the statute on ACDS and AIMS within 5 workdays of the receipt of the executed consent.
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If the statute is not updated on ACDS and AIMS within 10 workdays of the notification, the Appeals Technical Employee is responsible for notifying the ATM in writing the statute on ACDS is not accurate.
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The Appeals Technical Employee takes the following steps:
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Prepares Letter 968 and send it to the taxpayer and the authorized representative with a copy of the executed consent.
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Attaches a copy of the executed consent to each affected tax return.
Note:
It is no longer a requirement to attach Letter 967 to each affected return since the taxpayers' notice of rights is located directly above the signature lines of the consent form. However the letter must be attached if the Power of Attorney signs the consent on behalf of the taxpayers. See 7c) below.
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When the designated individual shown on the Power of Attorney signs the consent form on behalf of the taxpayers, attach a copy of the Letter 967 mailed to the taxpayer to the returns along with the executed consent form. Retaining a copy of the letter in this situation shows the taxpayers were provided their rights.
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Annotate the Case Activity Record (CAR) that consent form, Letter 967 and Publication 1035, (Extending the Tax Assessment Period) were sent to the taxpayer and representative, if applicable.
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Consents pertaining to returns (including dummy returns where the original return was not available) under the control and jurisdiction of Appeals are prepared, executed, and accepted in duplicate. Attach the original executed consent to the reverse side of the front page of the latest year's return. Attach copies of the executed consent to the reverse side of the front page of the return of the other years covered in the consent.
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When the original executed consent must be forwarded to another office to be affixed to the return, retain a copy of the consent in the office file for use in the event the original is not received by the addressee.
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If required consents are not obtainable, or are not acceptable, Appeals issues a notice of deficiency for those taxes subject to a petition to the United States Tax Court, and takes necessary action to protect the interests of the Government for all other taxes. See IRM 8.7, Technical and Procedural Guidelines, with references to criminal prosecution cases.
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Never alter the extension date on the consent form. Prepare new consents if the date is in error or needs to be changed.
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When prepayment credits are overstated, the appeals officer determines whether a different statutory period of limitation applies to such credits and takes action to protect the Government’s interest. When claimed prepayment credits are understated and expiration of the statutory period of limitation is imminent, invite the taxpayer, in writing, to file a claim for refund to protect his or her interests.
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Scrutinize the signed consent form for any unauthorized alterations. Inform the Chief Appeals, through management channels, of any unauthorized alterations.
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If income tax and other taxes are involved, indicate each type of tax in the "kind of tax" portion of the consent form.
For example, one of the issues on a Form 1040 may involve an individual retirement account (IRA). The IRA issue may give rise to a Chapter 43 excise tax. If the "kind of tax" line of the consent is completed only for "income tax," the statutory period for assessing any Chapter 43 excise tax deficiency may expire, barring the assessment. Thus, in the above example, the "kind of tax" on the consent form should read "income and Chapter 43."
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Follow all of the above procedures each time a consent is solicited.
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Form SS-10, Consent to Extend the Time to Assess Employment Taxes.
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Form 872, Consent to Extend the Time to Assess Tax.
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Form 872-A, Special Consent to Extend the Time to Assess Tax.
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Form 872-B, Consent to Extend the Time to Assess Miscellaneous Excise Taxes.
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Form 872-D, Consent to Extend the Time on Assessment of Tax Return Preparer Penalty.
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Form 872-F, Consent to Extend the Time to Assess Tax Attributable to Items of a Partnership or S Corporation That Have Converted Under Section 6231(b) of the Internal Revenue Code.
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Form 872-I, Consent to Extend the Time to Assess Tax As Well As Tax Attributable to Items of a Partnership.
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Form 872-IA, Special Consent to Extend the Time to Assess Tax and Tax Attributable to Items of a Partnership.
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Form 872-N, Notice of Termination of Special Consent to Extend the Time to Assess Tax Attributable to Items of a Partnership.
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Form 872-O, Special Consent to Extend the Time to Assess Tax Attributable to Partnership Items.
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Form 872-P, Consent to Extend the Time to Assess Tax Attributable to Partnership Items.
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Form 872-Q, Notice of Termination of Special Consent to Extend the Time to Assess Tax Attributable to Items of an S Corporation.
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Form 872-R, Special Consent to Extend the Time to Assess Tax Attributable to Items of an S Corporation.
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Form 872-S, Consent to Extend the Time to Assess Tax Attributable to Items of an S Corporation.
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Form 872-T, Notice of Termination of Special Consent to Extend the Time to Assess Tax.
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Form 872-U, Change of IRS Address to Submit Notice of Termination of Special Consent to Extend the Time to Assess Tax.
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Form 977, Consent to Extend the Time to Assess Liability at Law or in Equity for Income, Gift, and Estate Tax Against a Transferee or Fiduciary.
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Form 900, Tax Collection Waiver.
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Form 2750, Waiver Extending Statutory Period for Assessment of Trust Fund Recovery Penalty.
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Form 9247, Agreement to Extend the Time to File a Petition for Adjustment by Notice Partner (Shareholder) with Respect to Partnership or Subchapter S Items.
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Form 9248, Agreement to Extend the Time to File a Petition for Adjustment by the Tax Matters Partner (Person) with Respect to Partnership or Subchapter S Items.
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In each gift tax case in which a husband and wife elect to split their gifts pursuant to IRC section 2513, prepare two sets of consent agreements in duplicate for each taxable year using Form 872 or Form 872-A. Prepare one set for the husband as donor with the wife as consenting spouse, and another set for the wife as donor with the husband as consenting spouse. The signature of both spouses must appear on all the forms.
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When jurisdiction of a case is transferred to Counsel, they become responsible for controlling the statute on any returns in the file or for any returns requisitioned. Prominently reflect that they now have control of the statutes in the remarks section of Form 2828, Transmittal Memorandum, or in Item 11 of the Form 5402, Appeals Transmittal and Case Memo. Counsel may request that Appeals execute the consents that they secure.
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In the event it is determined that a consent is unnecessary, prepare a Form 10495, Memorandum Re Statute, for the file setting out the facts. Attach the original of the memorandum to the return.
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IRC section 6502 provides that the length of period for collection after assessment of a tax liability is ten years. IRC 5.1.19, General Collecting Procedures - Collection Statute Expiration, provides the reasons for Collection Statute Expiration Date (CSED) suspensions.
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The Restructuring and Reform Act of 1998 (RRA 98), under IRC 6501(c) and IRC 6502(a) enacted on July 22, 1998, provides that the Service's authority to extend the collection statute of limitations by agreement ended on December 31, 1999. Any extension of collection statute already in effect on December 31, 1999, expires on the later of the last day of the 10-year collection period in IRC section 6502(a) or December 31, 2002. There is an exception for extensions relating to the acceptance of an installment agreement. Refer to IRM 5.14.2, Installment Agreements.
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Delegation Order No. 42 delegates the authority to execute consents fixing the period of limitation on collection to Directors of Appeals Operating Units who may re-delegate this authority to Appeal/Settlement Officers. Refer to IRM 1.2.52.8. If Appeals secures an extension of the statutory period for collection using Form 900, Tax Collection Waiver, prepare the form in accordance with IRM Part 5, Collecting Process.
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Some Collection cases come to Appeals with less than one year left on the Collection Statute Expiration Date (CSED). If this occurs take the following steps:
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If the case came from the field, the Settlement Officer notifies either the Revenue Officer (RO) or the RO's Group Manager (GM) when a year or less remains on CSED.
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If the case came from ACS, ACS does not need to be notified about pending CSEDs. There is nothing they can do to protect the CSED nor are they required to remove it from their inventory. They only ask that when the CSED has expired the case be returned to them as quickly as possible so they may close it out of inventory.
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Settlement Officers and/or Specialists should document their Case Activity Record of imminent CSEDs. With a field case, the Appeals employee should document their notification to the RO or GM of the imminent CSED. Refer to IRM 8.7.2.
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Appeals considers cases where the taxpayer does not agree to a potential deficiency or overassessment even though, as a result of carrybacks, there is no deficiency or overassessment. In such instances assessment of restricted interest may have to be made.
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Assess restricted interest on potential deficiencies (before allowance of carrybacks) within the period of limitations applicable to the tax even though the deficiency in tax was eliminated by the carryback.
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If a consent cannot be obtained or if the consent secured is not acceptable, complete a Form 2285, Concurrent Determinations of Deficiencies (Increases in Tax) and Overassessments (Decreases in Tax) in Cases Involving Restricted Interest Provisions of the Internal Revenue Code, and a Form 5403, Appeals Closing Record. Generally Form 2285 is prepared by the Appeals Tax Computation Specialist (TCS).
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Forward the case to the Campus for computation and assessment of the restricted interest.
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The period of limitations on assessment of unrelated business income tax reported on Form 990-T, Exempt Organization Business Income Tax Return, is extended by securing proper consents when the period is about to expire. If either of the following exist and the period of limitations for assessment (determined from later of due date or date of filing Form 990) is expiring, secure the necessary consent as a precaution:
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an unrelated business income.
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a tax liability for tax imposed by IRC section 511.
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When multiple years exist and all are extended to the same date, use one consent Form 872, Form 872–A, Form 872–I, or Form 872–IA, executed in duplicate. If the extension is restricted to one or more issues, use a multiple-year consent only when the same restriction applies to all tax years.
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Securely attach the original executed consent to the return of the latest year involved. Attach a copy of the executed consent to the returns for each of the other years covered by the consent.
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Use one Form 872, Form 872–A, Form 872–I, Form 872–IA, Form 872–B, or Form SS-10 to obtain a consent for a parent corporation and all of its subsidiaries. For additional information on the preparation of these type consents, see Rev. Proc. 72-38 72–38, 1972–2 C.B. 813 as clarified by Rev. Proc. 82-6, 1982–1 C.B. 409.
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Securely attach the original executed consent to the parent corporation’s latest return and copies of the executed consent to each additional return of the parent and to the returns of the subsidiary corporations.
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Rather than attaching copies of the executed consent to each additional return of the parent and the returns of the subsidiary corporations, you can attach a statement to each one showing the following:
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name
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address
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identification number of the parent corporation
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the office in which the return of the parent corporation was filed
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the year, years or periods involved
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period of extension agreed to in the consent
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For consolidated income tax returns, one consent suffices to cover all companies included in the consolidated income tax return.
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Generally the parent, acting as agent for the group, executes Form 872, Form 872–A, Form 872–I, or Form 872–IA covering Chapter 1 Income Taxes. This authority of the parent does not automatically extend to taxes outside Chapter 1 Income Taxes such as excise taxes, employment taxes, or withholding taxes on foreign parties ( IRC section 1441 and IRC section 1442).
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When the consolidated return case involves multiple tax years, one consent can be obtained but only if the parent and subsidiary corporations involved are identical in all years. See IRM 25.6.22 for additional guidance on preparation of consents in consolidated settings.
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Generally approval from Area Counsel must be obtained before securing consents from the dissolved corporation. See IRM 25.6.22 for detailed information concerning this issue.
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The period of limitations on civil liability starts from the date of delinquent filing in a case involving willful failure to file provided the delinquent return is non-fraudulent. This applies even if circumstances surrounding initial non-filing are sufficient to support the fraud penalty.
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If the period of limitations is about to expire and criminal prosecution is pending, do not take action to secure consents without the concurrence of Counsel. See IRM 8.7, Technical and Procedural Guidelines.
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IRM 25.6.22.81 provides details concerning restricted consents, including the taxpayers rights, issues not subject to restrictions, restrictive statements, etc.
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When a restricted consent is secured on a case, all future consents for that case must contain the same restrictions.
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See IRM 25.6.22.7 for details concerning Special Consents Form 872–A and Form 872–IA and the procedures to follow when there is a termination of the Special Consent.
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Forms 872–T sent by Appeals may only be signed by the Operating Unit Director or his/her delegate, Appeals Team Manager or Appeals Team Case Leader.
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In the Letter 968, Letter Transmitting Executed Copy of Consent to Taxpayer, inform the taxpayer that a Form 872–T used to terminate Form 872–A, may be requested from the appeals officer
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Form 872 is accepted in place of Form 872–A if the taxpayer prefers Form 872. Form 872–A is requested only at the time Form 872 is normally requested and may be used as a renewal consent if Form 872 was previously executed. Cases involving Form 872–A receive the same priority of attention and expeditious consideration as those involving Form 872. See Rev. Proc. 79-22, 1979–1 C.B., 563.
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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 26.5.22.7.
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For Joint Committee cases involving Form 872–A, see IRM 8.9, Joint Committee Cases.
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Use Form SS-10, Consent to Extend the Time to Assess Employment Cases, to extend the period for assessment of taxes imposed by the Federal Insurance Contributions Act including FICA tax on tip income, Federal Unemployment Tax Act, the Railroad Retirement Tax Act, and Code provisions relating to withholding of income tax on wages at the source.
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See IRM 25.6.22.6 for information concerning consents on employment tax cases, including employee share of FICA, FICA on tips and trust fund recovery penalty cases.
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The general instructions for consents (see above) also apply to cases where the civil fraud penalty is asserted, i.e., the appeals officer generally requests the taxpayer to execute a consent prior to the expiration of the three year period under IRC section 6501(a) or the six year period under IRC section 6501(e), if applicable. If the civil fraud penalty is not asserted and the case is solely open under IRC section 6501(e), the appeals officer also considers obtaining a consent prior to the expiration of the six year period.
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Language restricting the consent may be added to the consent form. For example, "This consent is subject to the applicability of IRC section 6501(e)" .
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See IRM 25.6.22.6.16, Special Situations, for additional information on consents involving civil fraud cases and cases involving the 25% omission of income provisions of IRC section 6501(e).
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Form 872–A, Form 872–IA, Form 872–O, and Form 872–R are open-ended consents which provide an address that the taxpayer must use when mailing or hand carrying a notice of termination of consent (Form 872–T, Form 872–N, or Form 872–Q). Each consent also tells the taxpayer the address shown on the consent form can be superseded by the address shown on a Form 872–U Change of Address to Submit Notice of Termination of Special Consent to Extend the Time to Assess Tax or Form 872–COA which has been replaced by Form 872–U.
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Use Form 872-U, to notify taxpayers, who previously executed an open-ended special consent when one of the following situations occurs:
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Their case is received from Compliance.
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Their case is transferred to an appeals officer who is working at a location other than the one shown on the consent form.
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There is a change in the location or mailing address of the appeals office working the case.
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The following identifies who sends Form 872–U to the taxpayer and provides notice of change in IRS address.
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Cases coming to Appeals from Compliance with an open-ended consent: If the consent refers to the Form 872–COA or Form 872–U, the appeals officer assigned to the case sends the taxpayer the Form 872–U.
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Change in appeals officer location: The receiving appeals officer sends the Form 872–U notifying the taxpayer that the notification address has been changed.
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Change in office address: The appeals officer assigned to the case sends out the Form 872–U.
Note:
Generally APS runs a statute report showing all the cases in that office that are extended by a Form 872–A, Form 872–IA, Form 872–O, or Form 872–R.
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Appeals Technical Employees are responsible for ensuring that the statutory notice of deficiency (SND) issued by Appeals, as well as the Final Partnership Administrative Adjustment (FPAA) and Final S Corporation Administrative Adjustment (FSAA) on TEFRA key cases, are timely prepared and issued. The decision to issue an SND must be approved by the ATM.
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To ensure the statute is protected, a case must have at least 90 days remaining on the statute before it is submitted for preparation of an SND.
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If an SND is returned undeliverable, APS notifies the Appeals Technical Employee assigned to the case. The Appeals Technical Employee immediately reviews the file to ensure that the proper address was used in the notice.
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If the last known address was used in the notice, no further action is needed and the Appeals Technical Employee initials, dates and immediately returns the notice to APS. If the notice is to be re-mailed or re-issued, the Appeals Technical Employee advises APS of the actions to take.
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When an SND is forwarded to Counsel for review, statute control responsibility remains with the Appeals Technical Employee assigned the case even though Counsel has the case in its possession and was advised of the short statute.
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On an annual basis, all Appeals Technical Employees and their ATMs, conduct a physical inventory and statute verification of all returns in their inventory by comparing an inventory listing generated from ACDS against their actual inventory. Annotations are made to the listing and returned to APS for update of ACDS. See IRM 8.20.9.2.1.
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Appeals Technical Employees ensure that the procedural dates concerning jeopardy and termination assessments are met, as provided in IRM 8.7.1.1.6 and IRM 8.7.1.1.7.
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The Appeals Technical Employee is responsible for ensuring that there are at least 120 days remaining on the statute when a case is submitted to the ATM for review and closing. See See IRM 8.21.3.1.3.2. for special rules concerning Estate Tax cases where settlement discussions break down after ATM permission is granted to keep the case open beyond the 120 day date.
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Written permission from the ATM is required to keep a case beyond the 120-day guideline. Granting permission does not address the performance aspects of the employee's Critical Elements.