8.23.1  Offer in Compromise Overview

Manual Transmittal

October 10, 2014

Purpose

(1) This transmits revised IRM 8.23.1, Offer in Compromise, Offer in Compromise Overview.

Material Changes

(1) Revised to include Interim Guidance memorandums AP-08-0614–0003 and AP-08-0714–0005, Implementation of the Appeals Judicial Approach and Culture (AJAC) Project - Collection Phase 2 (Attachment 2), and AP-08–0814–0008, Appeals Judicial Approach and Culture (AJAC) Feature Codes and Premature Referral Reason, and the fcother editorial changes noted in the table below:

IRM Section Description of Change
Throughout Revised to incorporate Interim Guidance memorandums AP-08-0614-0003, AP-08–0714-0005 and AP-08-0814-0008 pertaining to the OIC program.
In General Revised for grammar, plain language and other editorial changes
In General Updated IRM cross-references

Effect on Other Documents

This supersedes IRM 8.23.1, dated November 20, 2013, and Incorporates Interim Guidance memorandums AP-08-0614–0003 and AP-08-0714–0005, Implementation of the Appeals Judicial Approach and Culture (AJAC) Project - Collection Phase 2 (Attachment 2), and AP-08–0814–0008, Appeals Judicial Approach and Culture (AJAC) Feature Codes and Premature Referral Reason pertaining to the OIC program.

Audience

Appeals Employees

Effective Date

(10-10-2014)


John V. Cardone,
Director, Policy, Quality and Case Support

8.23.1.1  (10-10-2014)
General

  1. This IRM provides instruction to you for the consideration of offer in compromise (OIC) cases. The procedures in IRM 8.23 are intended to be consistent with the procedures in IRM 5.8, Offer in Compromise , IRM 5.15, Financial Analysis, as well as with other sections of IRM Part 8 - Appeals. Section 509 of the Tax Increase Prevention and Reconciliation Act of 2005 (TIPRA) significantly impacted the offer in compromise program. Your responsibilities under TIPRA differ between Collection Due Process (CDP) and non-CDP offers. Guidance on CDP offers is available in IRM 8.22.7.

  2. You should research IRM 5.8 and related interim guidance to evaluate Compliance actions, decisions and valuation methods for Offers in Compromise. In addition to IRM 8.23, other IRM sections impacting your consideration of an offer in compromise (OIC) may include:

    • IRM 8.1.1, Appeals Operating Directives and Guidelines

    • IRM 8.2, Pre-90-Day and 90-Day Cases (contains general information for all Appeals cases)

    • IRM 8.6.1, Conference and Issue Resolution

    • IRM 8.6.4, Reaching Settlement and Securing an Appeals Agreement Form

    • IRM 8.7.6, Appeals Bankruptcy Cases

    • IRM 8.21, Appeals Statute Responsibility

  3. An OIC is an agreement between a taxpayer and the government that, generally, settles a tax liability in exchange for payment of less than the full amount owed. IRM 5.8.1 contains a general overview of the OIC program, including:

    • Authority

    • Policy

    • Objectives

    • Bases of Compromise

    • Payment terms

    • Fees and required initial payments

  4. Per IRC 7122(f) and Notice 2006-68, an OIC shall be deemed accepted if it is not rejected, returned, withdrawn or treated as withdrawn under IRC 7122(c)(1)(B)(ii), because the taxpayer failed to make the second or later installment due on a periodic payment OIC (see IRM 5.8.8), before the date which is 24 months after the date of the submission of the offer. Any period during which any tax liability which is the subject of the OIC is in dispute in any judicial proceeding shall not be taken into account in determining the expiration of the 24-month period. Per Notice 2006-68, the date of submission of an offer for purposes of IRC 7122(f) is the date on which the offer is received by the Service. The postmark date is irrelevant in determining when an offer is submitted.

  5. In general, you have jurisdiction to make decisions on OIC cases in the following circumstances:

    1. Offers appealed after being rejected by Collection or Examination.

    2. Offers based on doubt as to liability (DATL) if the liability was previously determined by Appeals.

    3. Offers submitted as an alternative to the proposed collection action in a CDP or equivalent hearing (EH) case before the CDP Notice of Determination or EH Decision Letter is issued.

    4. Offers being evaluated by Collection when a Notice of Federal Tax Lien (NFTL) is filed and the taxpayer requests a CDP or equivalent hearing.

      Note:

      Appeals will not accept jurisdiction over an OIC if the IRS does not have the authority to determine the type of tax that is being compromised, e.g. Alcohol, Tobacco and Firearm (ATF) taxes.

      Note:

      Appeals has no authority to compromise a liability if the Department of Justice (DOJ) can settle the case. A transaction code (TC) 550 with definer code "04" indicates that a judgment was obtained. Also, a TC 520 with a Closing Code (cc) 70, 71, 73, 75, 80 or 82 may indicate that litigation is pending (see IRM 25.3.6-1 and IRM 5.8.1. Consult with Area Counsel if these codes are present.

      Note:

      The Service will not consider an offer that is solely for a tax period or tax year that has not been assessed unless the Integrated Data Retrieval System (IDRS) indicates a return was received or an assessment is pending. See IRM 5.8.1.

  6. Absent special circumstances or effective tax administration conditions, an OIC will not be accepted if it is believed that the liability can be paid in full as a lump sum, or by installment payments extending through the remaining statutory period for collection, or other means of collection. See IRM 5.8.1.

    Note:

    Other provisions may apply. See IRM 8.23.3.3.2.2.

  7. Per Revenue Procedure 2012-18, OIC cases are subject to ex parte provisions. The third party contact waiver provision found in Section 8 of Form 656 pertains to non-IRS contacts only and is not a waiver of prohibited ex parte communications between Appeals and other IRS functions such as Examination, Collection, and IRS Counsel.

  8. IRM 5.8 is your primary resource for working OIC cases. However, while following the general OIC procedures found in IRM 5.8, you will exercise independent judgment concerning the disputed valuations and business decisions made by Collection. You will also make independent determinations regarding offers based upon DATL.

8.23.1.2  (11-20-2013)
Suspension of Levy While Offer is Pending

  1. IRC 6331(k) provides that no levy may be made

    • during the period that the offer is pending,

    • for an additional 30 days after the offer is rejected, and

    • during the time any appeal of the rejection is pending.

  2. Treasury Regulation 301.7122-1(d)(2) states that an offer becomes pending once it is accepted for processing. This is the date the Service official signs the Form 656, Offer in Compromise and inputs Transaction Code (TC) 480.

    Note:

    The date an offer becomes pending (TC 480 date) is usually not the same as the offer submission date under TIPRA. Be aware of this important difference when determining the statute date under IRC 7122(f).

  3. IRC 7122(e) states there must be an independent administrative review of any rejection of an OIC before such rejection is communicated to the taxpayer, and Treasury Regulation 301.7122-1(f)(1) provides that an offer in compromise has not been rejected until IRS issues a written notice to the taxpayer or his representative advising of:

    • The rejection,

    • The reason(s) for rejection, and

    • The right to an appeal.

  4. Treasury Regulation 301.7122-1(f)(5) further provides that a taxpayer may administratively appeal the rejection of an offer to the IRS Office of Appeals if, within the 30-day period commencing the day after the date on the letter of rejection, the taxpayer requests such an administrative review in the manner provided by the Secretary.

  5. IRC 6331(i)(5) provides that the period of limitations to collect the tax under IRC 6502 shall be suspended for the period during which levy is prohibited. See also Treasury Regulation 301.7122-1(i)(1).

    Note:

    The suspension of the collection statute expiration date (CSED) was repealed by the Community Renewal Tax Relief Act, effective December 21, 2000. The Job Creation and Workers Assistance Act re-established the suspension of the CSED, effective March 9, 2002. Appeals hearing officers considering cases involving older liabilities with multiple prior OICs must be aware of the proper CSED. IRM 5.8.10 and IRM 8.21.5 contain detailed information on CSED issues involving OICs.

8.23.1.3  (10-10-2014)
Conference and Settlement Practices

  1. The Appeals process in an OIC case is not an extension of the Compliance OIC process. The role and mission of Appeals are different from that of Compliance. You must employ Appeals' standard conference and settlement practices for all work streams, including OICs.

  2. The primary obligations you have in a non-CDP OIC appeal are to:

    • Provide the taxpayer with an opportunity for the conference he/she asked for under IRC 7122(e)(2).

    • Determine whether Compliance was correct in rejecting the taxpayer's offer by addressing the disputed issues that caused the offer to be rejected.

    • Provide a reasonable opportunity for the taxpayer to submit clarifying information or other documentation that the taxpayer believes is necessary to properly evaluate the offer and/or make the offer acceptable.

      Note:

      It is not intended that Appeals will ask for additional information thought by Appeals to be necessary for issue development. You will ask the taxpayer for clarifying information if the taxpayer (particularly a pro se taxpayer) is unsure of what to provide to clarify a position that is being advanced by the taxpayer. You will primarily rely on the case development that is in the case file at the time of Appeal.

    • Accept offers improperly rejected by Compliance.

    • If an offer cannot be accepted, communicate the reason(s) why and discuss alternatives (such as installment agreements and Currently Not Collectible status, as applicable) that the taxpayer may pursue with Collection. Do not refer the taxpayer back to COIC or field offices. Close the offer and refer the taxpayer to Form 9465 Installment Agreement Request, and/or 1-800-829-1040.

    Note:

    IRM 8.6.1 discusses conference and settlement practices applicable to all Appeals cases and makes no exceptions to offering the taxpayer an opportunity for a conference. This applies even in cases in which the taxpayer is not in compliance with filing and/or payment requirements. You should not close a non-CDP offer case as sustaining rejection of the offer without first offering the taxpayer an opportunity for a conference. See also IRM 8.23.2.4 and related subsections, and IRM 8.23.2.5.

  3. You should not investigate or continue development of an offer that was rejected by Compliance. You should consider those items in dispute at the time of rejection, or which are raised later by the taxpayer. However, as may be necessary following IRM 8.23.1.3(2), requests for the taxpayer to provide supplemental information to Appeals should clearly indicate:

    • precisely what is needed, and when

    • that the information, documentation, unfiled return, payment, etc., is necessary. See IRM 8.23.3.2.4, its related subsections and 8.23.2.5 for tax compliance matters.

    • that you will make your decision based upon available information if all of the requested items are not received by the due date provided. See IRM 8.23.3.3.1.2.

  4. You should document in the case activity record any reason for granting the taxpayer an extension of time to provide information or other documentation.

    Note:

    Ensure that the taxpayer had a full opportunity to present information and/or documentation to Collection to address relevant Reasonable Collection Potential (RCP) issues before the offer was rejected. Refer to IRM 8.23.3.3 for Appeals OIC evaluation procedures.

  5. IRM 8.1.1, Appeals Operating Directives and Guidelines, IRM 8.6.1, Conference and Issue Resolution, and IRM 8.6.4 , Reaching Settlement and Securing an Appeals Agreement Form, contains general guidance on conference and settlement practices and other general responsibilities. Your decision to sustain the rejection of a non-CDP offer is not subject to judicial review, therefore, not all of IRMs 8.1.1, 8.6.1 and 8.6.4 relate to OICs, but some sections that are relevant include:

    1. Conduct conferences in an open atmosphere that fosters cooperation in the resolution of disputes. Above all, it is of utmost importance to be a good listener. (See IRM 8.6.1.3 and IRM 8.6.4.1.4.)

    2. Consider whether the taxpayer demonstrates a lack of technical knowledge. The Appeals hearing officer will assist the pro se taxpayer to an appropriate extent. Assistance should be consistent with the Appeals role of impartiality. In the absence of an agreement, ensure the taxpayer fully understands their appeal rights.

  6. Consideration of certain issues, as well as an overall judgment as to the appropriateness of compromise often requires subjective judgments to be made by you. With this in mind, some general factors to consider when evaluating an OIC are:

    • The success, or lack thereof, of prior collection efforts against the taxpayer

    • The advantage of the taxpayer's future compliance, secured through acceptance of an OIC

      Note:

      Such factors are not stand-alone bases of acceptance of compromise, but should be considered in developing a frame of mind that is open to compromise.

8.23.1.4  (10-10-2014)
Requirements for Compromise

  1. This IRM section contains only the most basic compromise requirement details plus some information that's unique to Appeals. Considering an offer, you must be familiar with the revised guidelines in IRM 5.8, which contain numerous post-TIPRA changes. To avoid duplication of procedures, the bulk of the most necessary information in terms of OIC processability, perfecting and payment requirements, is found in IRM 5.8.2, Offer in Compromise, Offer Receipts, and IRM 5.8.3, Offer in Compromise, Processability .

  2. Except as indicated below, an offer must be filed on the current revision of Form 656 to be accepted. The Form 656-B instruction booklet provides specific details for completing the offer.

    Note:

    Collection will process an offer even if the Form 656 does not list all outstanding tax debts. However, an amended Form 656 listing all known tax debts need not be secured prior to accepting the offer because Section 8 of the Form 656 allows the Service to include any assessed liabilities on the form, even after its submission by the taxpayer. New, related offers, however, may need to be secured later. See IRM 8.23.3.4.

  3. If an OIC case is under consideration where the original offer was mailed before July 16, 2006, the offer may be accepted using the July 2004 revision of Form 656. This is a pre-TIPRA offer. If an amendment is needed on a pre-TIPRA offer, the July 2004 revision of Form 656 may be used, as the taxpayer is not required to make a TIPRA payment with the amended offer.

  4. A Form 656-LOffer in Compromise (Doubt as to Liability), is used for an offer based upon doubt as to liability. A DATL offer must be submitted using Form 656-L. There is no provision on the Form 656 or 656-B for DATL offers. No TIPRA payment(s) are required for DATL offers.

  5. Each separate tax period and type of tax must be listed on the Form 656. If an offer involving a Trust Fund Recovery Penalty (TFRP) assessment is accepted, the case file must include information identifying the Business Master File (BMF) periods comprising the TFRP assessment(s). A TFRP assessed prior to August of 2000 reflects only the last quarterly period that was the subject of the TFRP. In August of 2000, IRS began assessing TFRPs for each respective quarter. Verification on IDRS is required to determine how the assessment was made. See also IRM 8.23.3.4, concerning amended offers and the periods to be listed on the amended Form 656.

  6. IRC 7122(b) requires an opinion from Chief Counsel on all offers recommended for acceptance in which the unpaid liability (including tax, penalties and interest) is $50,000 or more. Counsel's review of a proposed acceptance has two separate and distinct components:

    1. Certification that the legal requirements for compromise were met.

    2. Review of the proposed compromise for consistent application of the Service's acceptance policies.

      Note:

      A finding by Counsel that a proposed acceptance is not in keeping with Service policy is not a justification for withholding an opinion if all of the legal requirements for compromise have been met.

  7. Further details concerning Counsel's review and statutorily required opinion are in IRM 8.23.4.2.2, Counsel Review of Acceptance Recommendations..

8.23.1.4.1  (10-10-2014)
Application Fees, Offer Terms, Payments and Deposits

  1. On May 17, 2006, TIPRA was signed into law. Offers received on or after July 16, 2006, must include the applicable user fee and an additional partial payment under TIPRA. The offer terms and associated initial partial payment requirements are:

    1. Payment Option 1 - Lump Sum Cash Offer: Payable in five or fewer installments beginning on or after notice of acceptance. The Form 656 must be accompanied by payment of 20% of the amount of the proposed offer, unless Low Income Certification Guidelines are met. See Section 4 of the Form 656. Section 5 of the Form 656 (Rev. March 2011) asks for specific dates for payments made under payment option 1, but since the date of acceptance is not known at the time an offer is submitted, exact payment dates cannot be used. In section 5, where the exact date of payment is not known, use less specific language for the "date" (see the example below).

      Example:

      If the offer will have payment(s) made on the 10th day of the month, use the following language for the "date" : "Day 10 of the first month following the date of acceptance of the offer" . Subsequent dates will simply repeat the language using "second month" , "third month" , etc.

    2. Payment Option 2 - Periodic Payment Offer: Payable in more than five installments, beginning with the date the offer is received by the Service. The Form 656 must be accompanied by the first proposed installment payment unless Low Income Certification Guidelines are met. See Section 4 of the Form 656. Additional installments must be paid in accordance with the taxpayer's proposed terms while the offer is being considered, unless the offer is based upon DATL or the taxpayer meets the low-income exemption under Section 4 of Form 656. See paragraph (4) below for information on the low-income exemption.

    Note:

    If payments involving irregular dates and/or amounts are proposed under payment option 2, it will be necessary to include an attachment for the Form 656. Create and name a Word document as "Attachment 1" to specifically enumerate the date and amount of each payment and, at payment option 2, mark the Form 656 to "See Attachment 1" . Include on the attachment the taxpayer's SSN/EIN. The taxpayer and/or representative must sign and date the attachment.

  2. The Form 656-AIncome Certification for Offer in Compromise Application Fee and Payment, was made obsolete when the Form 656 was revised in March 2011. For offers submitted on the earlier Form 656 (March 2009), the Form 656-A was required for requesting a waiver of the TIPRA application fee and payment.

  3. If an amended Short Term Periodic Payment Offer is secured, the 24-month period during which the taxpayer must pay the Short Term Periodic Payment Offer begins the date the amended offer is accepted. The taxpayer is still required to make the proposed periodic payments while the amended offer is being considered, but the 24-month period to make such payments doesn't begin until the date the offer is accepted. See IRM 5.8.1.

  4. The 24-month time period during which the taxpayer must pay the Short Term Periodic Payment Offer also begins the date such offer is accepted if the Short Term Periodic Payment Offer is based upon DATL, the taxpayer qualifies for the waiver under Section 4 of the Form 656, or if Appeals accepts the original Short-Term Periodic Payment Offer that was rejected by Collection, without amendments.

    Example:

    As a collection alternative in a CDP case, on May 15, 2011, Appeals received a Short Term Periodic Payment OIC based upon doubt as to collectibility. The taxpayer made the required monthly periodic payments, and on January 18, 2012, submitted an amended Short Term Periodic Payment Offer. The amended offer was accepted February 15, 2012. The amended offer is payable in six or more installments before February 15, 2014.

  5. If the offer is accepted and is either based upon DATL or the taxpayer qualified for the waiver under Section 4 of the Form 656, the taxpayer must begin making periodic payments in accordance with the terms of the accepted offer after Appeals issues the written notice of acceptance.

  6. The TIPRA requirement for a taxpayer to make proposed periodic installment payments while a periodic payment offer is being considered ends when Collection rejects the offer. Taxpayers are not required to continue making periodic installment payments while a rejected offer is being considered by Appeals unless Appeals secures an amended offer. See IRM 8.23.3.4 for additional guidance on amended offers secured by Appeals.

  7. IRC 7122 provides that the Secretary may issue regulations waiving any partial payments required with the submission of the offer. The only available waivers per Notice 2006–68 are for offers based upon doubt as to liability and offers received from low-income taxpayers. Such taxpayers are not required to pay the $150 processing fee, initial payment, or periodic installment payments.

  8. The IRS OIC Monthly Low Income Guidelines found in the Form 656 information booklet were recently increased, so an increased number of taxpayers will likely be exempt from the user fee and TIPRA payment requirements. A taxpayer seeking a low-income exemption must complete Section 4 of the Form 656 when submitting the offer. The low-income exemption applies only to individuals.

  9. If an individual taxpayer is granted a low-income exemption, the taxpayer is exempted from payment of the application fee as well as the 20% TIPRA payment, and any proposed periodic monthly payments, unless the offer is formally accepted. Once formally accepted, the taxpayer will be responsible for payment, subject to the terms on the accepted offer. However, no application fee or 20% TIPRA payment will ever be required of the taxpayer, even if the offer is accepted.

  10. The IRS no longer requires that installment agreements in effect prior to receipt of an OIC remain in effect while an offer is being considered.

  11. IRM 5.8.1 and IRM 5.8.4 contain detailed information concerning OIC payment terms, processability issues and initial payment requirements for offers. See also IRM 8.23.3.1.1.1.

8.23.1.4.1.1  (10-10-2014)
Processing OIC Payments

  1. You may process all "pre-acceptance" TIPRA payments using a Form 3244, Payment Posting Voucher, except for the payment that's due with the original Form 656. The user fee and initial payment are part of the overall processability determination so they must be forwarded to the appropriate Centralized Offer in Compromise (COIC) site. Subsequent periodic installment payments made prior to acceptance of the offer may be processed by you as follows:

    1. For tax debts other than employment or excise taxes, apply designated payments per the written designation using Designated Payment Code (DPC) 35.

    2. For tax debts other than employment or excise taxes, apply undesignated payments to the liability with the earliest CSED using DPC 35.

    3. For tax debts other than employment or excise taxes, apply designated payments received with an amended Form 656 per the written designation using DPC 34.

    4. For tax debts other than employment or excise taxes, apply undesignated payments received with an amended Form 656 to the liability with the earliest CSED using DPC 34.

    5. For employment or excise tax (trust fund) debts, apply payments designated to trust fund taxes per the written designation using DPC 02.

    6. For employment or excise tax debts, apply undesignated payments to all unpaid Forms 1120 and 940 liabilities, and then to other non-trust fund liabilities beginning with the liability with the earliest CSED using DPC 35.

      Note:

      This is different than the standard TFRP payment application procedures outlined in IRM 5.7.4.3, Trust Fund Compliance - Investigation and Recommendation of the Trust Fund Recovery Penalty, Calculating the TFRP, because offer payments are applied in the best interest of the government, unless otherwise designated.

    7. Apply payments designated to trust fund taxes that are received with an amended Form 656 per the written designation using DPC 02.

    8. Apply undesignated payments for employment or excise tax debts that are received with an amended Form 656, to all unpaid non-trust fund liabilities beginning with the liability with the earliest CSED using DPC 34.

  2. Per IRC 7122(c)(2)(A) and Notice 2006-68, taxpayers are entitled to designate all payments required under TIPRA while the offer is under consideration. The designation must be made in writing at the time the payment is made. Absent a written designation, the payments will be applied in the best interest of the government. Once the taxpayer designates application of a payment, it cannot be changed at a later date.

    Note:

    The OIC user fee cannot be designated and will be applied to the taxpayer's liability in the best interest of the government.

  3. Once the offer is accepted, the taxpayer no longer has the right to designate subsequent offer payments. All post-acceptance payments should be processed by the Monitoring Offer in Compromise (MOIC) unit.

  4. Payments received for offers that have been accepted should be sent to the payment address that is shown on the taxpayer's offer acceptance letter. If the address is not known or cannot be readily identified, the payment may be routed to the most convenient remittance drop point in Appeals.


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