Part 4. Examining Process
Chapter 18. Exam Offer-In-Compromise
Section 3. Effective Tax Administration Offers
February 28, 2017
(1) This transmits revised IRM 4.18.3, Exam Offer-in-Compromise, Effective Tax Administration Offers.
This IRM provides instructions and guidance for examiners evaluating Effective Tax Administration Offers.
(1) Minor editorial changes have been made throughout this IRM. Website addresses, legal references, and IRM references were reviewed and updated as necessary.
|IRM Reference||Description of Changes|
|126.96.36.199||Removed previous item (3) due to obsolete information.|
|188.8.131.52||IRM 184.108.40.206(1) - Note was added to clarify when compromise is permitted if there are compelling public policy or equity considerations. IRM 220.127.116.11 - Removed previous items (3), (4), and (5) which repeated information and examples in Treas. Regs. 301.7122-1.|
|18.104.22.168||IRM 22.214.171.124(2) - Updated processing procedures. IRM 126.96.36.199 - Updated for changes in procedures. Added information regarding Non-Economic Hardship - Effective Tax Administration (NEH-ETA) offers.|
|188.8.131.52||IRM 184.108.40.206 - Updated item (1) and removed previous items (2) and (3) due to obsolete procedures.|
|220.127.116.11||IRM 18.104.22.168(2) - Changes made to clarify authority needed to approve an OIC. IRM 22.214.171.124 - Added new items (3) and (4) and removed previous item (4) regarding acceptable procedures. IRM 126.96.36.199 - (6 renumbered) Revised to reflect updated procedures.|
|188.8.131.52||IRM 184.108.40.206(2) - Revised to reflect updated procedures.|
|220.127.116.11||IRM 18.104.22.168 - Revised items (2), (3) and (4) to reflect updated procedures.|
Acting Director, Exam - Field and Campus Policy
Small Business/Self Employed
This section provides information for examiners considering effective tax administration Offer in Compromise (OIC) requests.
As part of the IRS Restructuring and Reform Act of 1998 (RRA 98), Congress added IRC 7122(c), Rules for Submission of Offers-in-Compromise. That section provides that the Service shall set forth guidelines for determining when an OIC should be accepted. Congress explained these guidelines should allow the Service to consider:
Public policy; and
26 CFR 301.7122-1, authorizes the Service to consider OIC’s raising these issues. These offers are called Effective Tax Administration (ETA) offers. See IRM 5.8.11, Effective Tax Administration, for more information and examples.
If there are no grounds for compromise under the doubt as to collectibility or doubt as to liability provisions, a compromise may be entered into to promote effective tax administration when compromise of the liability will not undermine compliance with the tax laws, and:
Collection of the full liability will create economic hardship within the meaning of Treasury Regulation 301.6343-1; or,
Regardless of the taxpayer's financial circumstances, exceptional circumstances exist such that collection of the full liability will be detrimental to voluntary compliance (DVC).
If there are no grounds for compromise based on doubt as to collectibility, doubt as to liability or because collection would cause an economic hardship, compromise is permitted if compelling public policy or equity considerations identified by the taxpayer provide a sufficient basis for compromising the liability. Compromise will be justified only where, due to exceptional circumstances, collection of the full liability would undermine public confidence that the tax laws are being administered in a fair and equitable manner. A taxpayer proposing compromise under this provision will be expected to demonstrate circumstances that justify compromise even though a similarly situated taxpayer may have paid his liability in full.
Factors supporting (but not conclusive of) a determination that compromise would not undermine compliance with the tax laws include:
Taxpayer does not have a history of noncompliance with the filing and payment requirements of the IRC;
Taxpayer has not taken deliberate actions to avoid the payment of taxes; and
Taxpayer has not encouraged others to refuse to comply with the tax laws.
Collection has jurisdiction over offers based on effective tax administration for public policy reasons or equity considerations.
Collection's Non-Economic Hardship - Effective Tax Administration (NEH-ETA) group reviews offers submitted under public policy or equity consideration.
In some instances, the NEH-ETA group may request review or input from Examination relative to a tax law issue or an issue that would undermine public confidence that the tax laws are being administered in a fair and equitable manner or would undermine compliance.
In instances where Examination consideration is warranted, Collection will forward the offer to the appropriate Exam Area Office based on the PSP coordinator listing. See IRM 4.18.2, Doubt as to Liability Offers, which provides guidance in considering doubt as to liability offers.
If the taxpayer requested consideration of the Effective Tax Administration provisions on Form 656, Offer in Compromise, and the case has been forwarded from Collection for consideration, the examiner is required to fully document any and all relevant tax law considerations and provide a recommendation whether the case is appropriate for compromise based on the specific facts and issues raised.
The examiner should consider equity already established in the tax law in assessing/analyzing the taxpayer's DVC offer.
See procedures in IRM 22.214.171.124, Doubt as to Liability Offer Accepted.
IRM 126.96.36.199, Delegation Order 5-1 (Rev. 4), outlines the level of authority needed to approve an OIC. Under IRC 7122(b), Record, if the total liability for an offer is $50,000 or more, Counsel must provide an opinion to ensure the OIC meets the legal requirements for compromise and conforms to the Service's policy and procedure. See IRM 188.8.131.52, Legal Opinion of Counsel.
Doubt as to liability offers will be rarely, if ever, closed as an acceptance.
Examiners and taxpayers should be able to arrive at a correct tax liability amount.
In most circumstances, the offer will close either as a rejection or as a withdrawal.
If an examiner believes that an offer should close as an acceptance, they should reach out to their PSP OIC-DATL coordinator (or WSD classifier) for assistance.
If Collection Policy approval has been secured, the completed case is routed via Form 3198, Special Handling Notice for Examination Case Processing, to the attention of the Technical Services OIC reviewer. See IRM 184.108.40.206.4, Accepted Offers, for further information.
Form 7249, Offer Acceptance Report, is prepared by Technical Services and will be annotated "effective tax administration" as the reason for acceptance.
See procedures as outlined under "doubt as to liability" provisions in IRM 220.127.116.11, Doubt as to Liability Offer Withdrawn.
Once a determination is made, the case file is routed via Form 3198, Special Handling Notice for Examination Case Processing, to the attention of the Technical Services OIC Reviewer.
See procedures as outlined under "doubt as to liability" provisions in IRM 18.104.22.168, Doubt as to liability Offer Rejected.
The file is routed via Form 3198, Special Handling Notice for Examination Case Processing, to Technical Services for an independent administrative review. If the OIC-Independent Administrative Reviewer (IAR) agrees with the examiner’s determination, they process the file. If the OIC-IAR disagrees, the file is returned to the group via Form 3990, Reviewers Report, to communicate the OIC-IAR’s observations.
The taxpayer has 30 calendar days from the date of the rejection letter to file an appeal request. The OIC-IAR Reviewer in Technical Services issues the rejection letter to the taxpayer. If the taxpayer requests an appeal, the file will be forwarded to the Office of Appeals.
The OIC-IAR Reviewer in Technical Services completes the Automated Offer-in-Compromise (AOIC) Exam/Specialty Checklist (including the date of the rejection letter) and returns the Exam Checklist to PSP OIC-DATL Coordinator.