Part 4. Examining Process

Chapter 80. Government Entities Examinations

Section 1. Technical Assistance and Technical Advice Requests

4.80.1 Technical Assistance and Technical Advice Requests

Manual Transmittal

February 23, 2021

Purpose

(1) This transmits revised IRM 4.80.1, Government Entities Examination Program and Procedures, Technical Assistance and Technical Advice Requests.

Background

IRM 4.80.1 was published on October 1, 2018 and applied to the Indian Tribal Governments /Tax Exempt Bonds function. The two functions now operate independently of each other in the Government Entities function of Exempt Organizations and Government Entities.

IRM 4.80.1 has been revised to apply to Tax Exempt Bonds (TEB) examinations only.

Scope

This IRM provides guidance and procedures for TEB employees in obtaining technical assistance or technical advice.

Material Changes

(1) Updated previous IRM to remove references and procedures applicable to ITG.

(2) Edited IRM to replace Rev. Proc. 2018-2 with Rev. Proc. 2021-2.

(3) Updated to include various editorial changes throughout the IRM.

Effect on Other Documents


This IRM supersedes IRM 4.80.1 dated October 1, 2018. This IRM incorporates Interim Guidance Memorandum TEGE-04-0819-0015, Consolidation of policy statements and delegation orders into two new IRM sections, dated August 23, 2019.

Audience


Tax Exempt and Government Entities
Exempt Organizations and Government Entities
Government Entities
Tax Exempt Bonds

Effective Date

(02-23-2021)


Stephen A. Martin
Acting Director, Exempt Organizations and Government Entities

4.80.1.1 (02-23-2021)

Program Scope and Objectives

  1. Purpose: IRM 4.80.1 has guidance and procedures for TEB employees to follow for technical assistance or technical advice from the TEB K-Net, TEB Technical and Associate Chief Counsel when it’s unclear how to apply the law to the facts in their exam.

  2. Audience: This IRM provides procedures for TEB examiners, tax law specialists, managers and support staff.

  3. Policy Owner: Director, Exempt Organizations and Government Entities

  4. Program Owner: Director, Exempt Organizations and Government Entities

4.80.1.2 (02-23-2021)

Authority

  1. Submit requests for Technical Advice Memorandum (TAMs) under Rev. Proc. 2021-2, 2020-1 IRB 107 (or its successor). The IRS updates this revenue procedure annually as the second revenue procedure of the year, and may modify or amplify the revenue procedure during the year.

  2. If a provision of this IRM is inconsistent with Rev. Proc. 2021-2 (or its successor), follow the provisions of Rev. Proc. 2021-2 (or its successor).

4.80.1.3 (02-23-2021)

Responsibilities

  1. The TEB Program Manager (PM) determines whether to request a TAM.

  2. The TEB Exam group manager makes sure that questions submitted via a TAM are on the interpretation and proper application of the law or other legal authority to a specific set of facts under examination.

4.80.1.4 (10-01-2018)

Program Controls

  1. All examinations are conducted per the Taxpayer Bill of Rights as listed in IRC 7803(a)(3).

4.80.1.5 (02-23-2021)

Acronyms and Terms

  1. This IRM uses the following acronyms and terms:

    Acronyms and Terms Description
    AIMS Audit Information Management System
    CCDM Chief Counsel Directives Manual
    Director Director, Government Entities
    Division Counsel The area field office of Division Counsel
    Examiners TEB Examiners
    FIP Financial Institutions & Products
    IRM Internal Revenue Manual
    TEB K-Net TEB’s knowledge management function
    PM TEB Program Manager
    RCCMS Reporting Compliance Case Management System
    TAM Technical Advice Memorandum
    TEB Tax Exempt Bonds
    TEB Exam TEB Exam Groups
    TEB Technical Technical Group in TEB
    TLS Tax Law Specialist

4.80.1.6 (02-23-2021)

Requesting Technical Assistance and Technical Advice

  1. TEB examiners (typically, revenue agents) may request technical assistance and/or technical advice when needed.

    1. Generally, examiners request technical assistance through the TEB K-Net, Technical or Division Counsel.

  2. Before you request technical advice, try to resolve technical questions via research and analysis, including discussion with your group manager and peers. You may also get help from:

    1. TEB K-Net

    2. An assigned TLS

    3. TEGE Division Counsel (Division Counsel)

  3. You may also get technical advice on examinations from the Associate Chief Counsel. See IRM 4.80.1.10, Technical Advice Procedures, and Rev. Proc. 2021-2 (updated annually).

  4. Request technical advice in cases that have any of the following conditions (as generally discussed in Chief Counsel Directives Manual (CCDM) 33.2.1.9, Standards for Requesting Advice and Legal Effect of Advice):

    1. The law and regulations are unclear as to how they apply to the case’s issue and there’s no published precedent for determining how to properly treat the issue.

    2. There is reason to believe that a lack of uniformity in the treatment of the issue exists.

    3. A doubtful or contentious issue is involved in several cases.

    4. The issue is very unusual or complex and warrants the Associate Chief Counsel’s consideration.

    5. You believe that securing technical advice would be in the IRS’s best interest.

  5. Discuss requesting formal technical advice with your group manager. Request a TAM (to the extent possible) at the earliest stage of the audit, as discussed in CCDM 33.2.1.9. If your group manager agrees that technical advice is warranted, contact Division Counsel to discuss the issue with you and your group manager. You must receive a recommendation from Division Counsel before proceeding with a TAM.

4.80.1.7 (02-23-2021)

Assistance from the K-Net

  1. Examiners and their group managers may also request help from the TEB K-Net. The TEB K-Net provides technical assistance on general issues or questions, including issues you’re considering in your exam. However, it’s not intended to provide case specific guidance. You may:

    1. Call a TEB K-Net team member for quick and informal technical input on basic questions that will help you independently resolve an issue.

    2. Post questions/comments on a discussion forum to begin a peer-to-peer conversation. TEB K-Net team members participate in discussion forum conversations with other TEB tax law specialists (TLS) and examiners.

    3. Use Ask A Question to ask for technical guidance or resources that’ll help you independently resolve an issue. The assigned TEB K-Net Team Member contacts you to discuss your question.

    4. Attend a TEB K-Net event to hear technical information and ask questions. See the TEB K-Net calendar for the dates and times of events.

    Caution:

    Don’t include any PII when using the TEB K-Net.

4.80.1.8 (02-23-2021)

Assistance from TEB Technical

  1. Examiners get approval to request technical assistance from TEB Technical. They do this by filling out necessary forms and providing information to move a technical assistance request forward.

  2. Examiner: If your manager agrees that you’re likely to close the case unagreed or as a claim denial, and determines that technical assistance is warranted (with PM’s approval), prepare and send Form 14501, TEB Technical Assistance Request, to TEB Technical manager requesting a TLS for technical assistance. Your request should:

    1. Identify the taxpayer and bond issue under examination.

    2. Include your name and your manager’s name.

    3. Describe the identified area of noncompliance.

    4. Include any taxpayer or issuer correspondence with a position on the matter.

  3. PM: Approve the group manager’s request for technical assistance, if warranted.

  4. TEB Technical manager:

    1. Notify the group manager and PM of the assigned TLS.

    2. Discuss the assignment’s priority with the TLS.

  5. TLS:

    1. Review the draft document(s) and prepare a memorandum to the group manager and examiner with comments on any areas requiring further development.

    2. Coordinate with the examiner if additional information is needed.

    3. Update the TEB Technical manager on case progress.

  6. Examiner:

    1. Respond to any TLS request for additional information.

    2. Incorporate all revisions into the necessary documents.

  7. All: Share and discuss pertinent case-related communication during the technical review process.

4.80.1.9 (02-23-2021)

Assistance from Division Counsel

  1. Make informal, and if needed, written requests for assistance to Division Counsel for:

    1. Legal interpretations

    2. Case development for "unagreed" issues

  2. Get your group manager’s approval before you contact Division Counsel.

  3. You may ask for a TLS to help you prepare a request for Division Counsel assistance.

  4. Generally, an opinion from Division Counsel is confined to the specific facts and circumstances of a case. Do not apply the opinion to other cases without contacting Division Counsel.

4.80.1.10 (02-23-2021)

Technical Advice Procedures

  1. Technical advice is advice from Associate Chief Counsel via a technical advice memorandum (TAM). Either you or the taxpayer may submit a request under Rev. Proc. 2021-2 for assistance on any technical question that develops during your exam. See IRM 4.80.1.10.2 and IRM 1.2.1.5.25, Policy Statement 4-82.

  2. TAM procedures:

    1. Follow Rev. Proc. 2021-2 guidelines (updated annually).

    2. Offer examiners guidance when they request a TAM and cover their responsibilities throughout the TAM process.

  3. A TAM is a written advice or guidance memorandum furnished by Associate Chief Counsel for legal interpretations and proper application of tax law, tax treaties, regulations, revenue rulings, notices or other published precedents on a specific set of facts in the examination of a taxpayer’s return, or consideration of a taxpayer’s claim for refund or credit, or any other specific taxpayer’s matter under TEB’s jurisdiction.

    Note:

    See IRM 4.80.1.6 (4).

  4. Contact Division Counsel before requesting a TAM. See IRM 4.80.1.9, Assistance from Division Counsel.

    Note:

    You must receive Division Counsel’s support before proceeding with a TAM. As discussed below, Division Counsel will help you with the TAM request submission.

  5. Prepare technical advice requests on Form 4463, Request for Technical Advice Memorandum.

  6. Submit TAM requests to FIP Office of Associate Chief Counsel.

4.80.1.10.1 (02-23-2021)

Initiating a Request for a TAM

  1. Request a TAM (to the extent possible) at the earliest stage of the examination.

    Note:

    Consider using the TEB K-Net or asking TEB Technical for help to determine if you can resolve the issue without requesting a TAM.

  2. If you think that a TAM is warranted, discuss the issue with your group manager.

  3. If your group manager agrees that a TAM may be warranted, they contact the PM to discuss the issue.

  4. Group manager:

    1. After you get the PM’s agreement, contact Division Counsel to discuss the issue.

    2. After consulting with Division Counsel and getting their agreement to request a TAM, get the Director’s written approval before requesting a TAM.

    3. If the Director agrees that a TAM should be pursued, request a TLS to be assigned and schedule a Pre-Submission Conference with Associate Chief Counsel per IRM 4.80.1.10.3, Pre-submission Conference.

  5. Examiner and group manager: If Associate Chief Counsel agrees during the pre-submission conference that you should request a TAM, prepare Form 4463, Request for Technical Advice, with attachments describing the:

    1. Facts and the issues for which a TAM is requested.

    2. Applicable law and arguments in support of the IRS position on the issues.

    3. Applicable law and arguments in support of the taxpayer or issuer positions on the issues.

      Note:

      Generally, you should write the facts, law, government’s position, taxpayer’s position and conclusion separately for each issue. Always work with the taxpayer/representative and try to agree on the wording.

      Note:

      The assigned TLS and Division Counsel attorney will help you prepare the TAM. See Rev. Proc. 2021-2 (or successor), Sections 7.01 and 7.06.

  6. Examiner and group manager:

    1. Send the Form 4463, Request for Technical Advice or Technical Expedited Advice, to the assigned TLS for review.

    2. When the TLS approves, send the Form 4463 to the PM for review.

  7. PM: After the examiner and group manager address any comments, send the Form 4463 to the Director for signature as the approving official on Form 4463.

  8. Examiner: Notify the taxpayer of the TAM request in writing (Technical Advice Notification), using Letter 1399-A.

  9. The taxpayer doesn’t have authority to bar an internal decision to seek technical advice. However, examiners, group managers and the PM may consider and document any objections they receive from the taxpayer.

  10. The taxpayer has 10 calendar days to respond to the Technical Advice Notification. If the taxpayer requests more time:

    1. The taxpayer must: Request in writing, to extend before the 10 calendar days expire; include the specific reasons justifying the extended time requested; include a written signature of a duly authorized individual on behalf of the taxpayer.

    2. Examiner: When you receive the written request to extend the 10-day period, immediately review it and send it to your group manager with a recommendation.

    3. Group manager: You may approve the written request to extend the 10-day period. You may direct that the taxpayer must send additional documentation to be considered.

  11. If the taxpayer agrees with the issues and facts stated in the Technical Advice Notification, they should acknowledge agreement in writing.

    Note:

    Include the taxpayer's letter in the TAM request package.

  12. If the taxpayer disagrees with the examiner’s statement of issues and facts in the Technical Advice Notification, the taxpayer must:

    • Identify each point of disagreement and state the reasons for disagreement in writing.

    • Respond completely to the Technical Advice Notification.

    • Include a written signature of a duly authorized individual on behalf of the taxpayer.

    Note:

    You and the taxpayer have 10 calendar days to resolve disagreements. See Rev. Proc. 2021-2 Section 7.06.

  13. Examiner:

    1. If you don’t receive a taxpayer’s written statement or it’s incomplete, you may advise the taxpayer that the formal request for technical advice will go forward with the available information.

    2. If you disagree with the issues and facts presented in the taxpayer’s written statement, try to resolve any disagreement over the issues and facts with the taxpayer.

      Note:

      You may ask the assigned TLS for help to resolve any disagreements with the taxpayer.

    3. If you and the taxpayer disagree on the issues and facts, submit a written notice of disagreement to the taxpayer.

  14. The taxpayer has 10 calendar days from the date you mail or fax the written notice of disagreement to respond per Rev. Proc. 2021-2, Section 7.06.

    Note:

    The group manager is authorized to extend the 10-day period.

  15. The taxpayer’s statement of facts and issues must be accompanied by the following declaration: "Under penalties of perjury, I declare that I have examined this information, including accompanying documents, and, to the best of my knowledge and belief, the information contains all the relevant facts relating to the request for technical advice, and such facts are true, correct, and complete."

  16. Include all statements and correspondence between the examiner and the taxpayer on disagreement of the issues or facts in the formal TAM request.

    Note:

    The TLS and the Division Counsel attorney help the examiner prepare the memo for Associate Chief Counsel, highlighting the material factual differences.

4.80.1.10.2 (02-23-2021)

Taxpayer Initiated Requests for a TAM

  1. A taxpayer may request a TAM orally or in writing to you. The request must include the reasons for requesting the TAM (Rev. Proc. 2021-2, Section 5.02).

  2. If you receive a taxpayer’s written statement and disagree with their statements of issues and facts, send a written notice of disagreement to the taxpayer. You must respond even if you determine that a request for technical advice isn’t warranted.

  3. After you evaluate all documents and determine whether a TAM is warranted, prepare a written summary of the issues, specifically for the group manager and the PM, explaining why the taxpayer’s request for a TAM should be approved or denied.

  4. Immediately secure e-mail the summary and a copy of the taxpayer’s written statement to your group manager.

  5. Exam group manager: Upon receipt, forward the examiner’s summary and a copy of the taxpayer’s written statement with your recommendation to the PM.

  6. The PM may:

    1. Direct that the taxpayer must send additional documentation to be considered.

    2. Deny a taxpayer initiated request for a TAM based on material disagreement over issues and/or facts.

  7. If the PM approves the taxpayer’s request for a TAM, they ask the Director to review and approve.

  8. If the PM and Director both approve the TAM request, they send their written approval to the Exam group manager.

  9. The formal TAM request includes the taxpayer’s written statement and all other statements and correspondence between the examiner and the taxpayer in connection with any disagreement over issues and facts.

  10. If the PM denies the taxpayer’s request for a TAM, the examiner informs the taxpayer in writing.

  11. The taxpayer may appeal IRS’s decision to deny the taxpayer’s TAM request by submitting to the examiner, within 30 calendar days after being notified of the denied request, a written statement of the reasons why it should be referred to Associate Chief Counsel. The statement should include:

    • Description of all pertinent facts (including any facts in dispute).

    • Statement of the issue that the taxpayer would like to have addressed.

    • Discussion of any relevant statutory, regulatory, or administrative provisions, tax treaties, case law, or other authority.

    • Explanation of the taxpayer’s position and the need for technical advice.

    Note:

    To request an extension of the 30-day period, the taxpayer must do so in writing. The PM decides whether to approve the extension request.

  12. Exam group manager: Upon receipt of the taxpayer’s written request to appeal IRS’s decision to deny the TAM request, send to the PM the taxpayer’s written statement, along with the examiner/group manager’s statement of why the issue should not be referred to Associate Chief Counsel for technical advice.

  13. PM: Send the package with your recommendations to the Director.

  14. If the Director:

    1. agrees with the taxpayer that a TAM should be requested, he/she will notify the PM and group manager in writing and request a TLS to be assigned. Inform the taxpayer of your Director’s decision and submit the TAM request per IRM 4.80.1.10.1, Initiating A Request For Technical Advice.

    2. determines that a TAM is not warranted, he/she will inform the PM and the group manager in writing. Inform the taxpayer in writing that we’re denying their TAM request and explain the reasons for the denied request.

      Note:

      The Director has 45 days to deliver a final decision per Rev. Proc. 2021-2, Section 5.04.

4.80.1.10.3 (02-23-2021)

Pre-Submission Conference

  1. After you secure TAM approval from Division Counsel, the PM and the Director, schedule a pre-submission conference, which is:

    1. Required for all TAM requests to encourage agreement on the statement of the issues.

    2. Conducted with an Associate Chief Counsel attorney, the Division Counsel attorney, the examiner, the group manager, the TLS and the taxpayer.

    3. Most likely held by telephone and within 30 calendar days after the examiner is contacted.

  2. Before the scheduled pre-submission conference:

    1. Prepare your own statement of pertinent facts and issues.

    2. Solicit the taxpayer’s statement of pertinent facts and issues.

    3. Secure Form 2848, Power of Attorney and Declaration of Representative, for the representative involved with the TAM and verify it covers all applicable periods.

    Note:

    The legal analysis you and the taxpayer document in your statements should reasonably inform Associate Chief Counsel on the issue.

  3. The examiner and the taxpayer must exchange proposed statements of the pertinent facts and issues. The proposed statements should include any facts in dispute, the issues that the parties intend to discuss, any legal analysis and supporting authorities, and any other background information that the parties believe would help Associate Chief Counsel understand the issues that’ll be discussed during the conference.

    Note:

    If the taxpayer doesn’t provide a statement of pertinent issues and facts within a reasonable time, don’t delay scheduling the pre-submission conference. Schedule the conference without the statements.

  4. E-mail the following items to the Division Counsel attorney:

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

    2. A statement of pertinent facts.

    3. A statement of the facts in dispute, if any.

    4. Any legal analysis, authorities or background documents that could facilitate the understanding of the issues to be discussed. (This doesn’t need to be fully developed as there will be an analysis that will ultimately accompany the formal request for a TAM).

    5. The taxpayer's statement of pertinent facts and issues.

    6. A copy of Form 2848, Power of Attorney and Declaration of Representative.

  5. Division Counsel: review the items in IRM 4.80.1.10.3 (4), and send the following information to the Associate Chief Counsel TSS Assignments mailbox, requesting a pre-submission conference. Fax or send the package, by express mail or private delivery service, any part of the information below that can’t be e-mailed.

    • A cover memo, including contact information, requesting a technical advice pre-submission conference.

    • The name of the office expected to have jurisdiction over the request for a TAM.

      Example:

      The TEB Exam Group and the Program Manager.

    • A list of representatives from each IRS function that the examiner expects to attend the pre-submission conference.

    • A brief explanation of the primary issue.

      Note:

      The factual information should cover all collateral issues for which TEB is seeking technical advice from Associate Chief Counsel.

      Note:

      The assigned branch of the Associate Chief Counsel office must receive the pre-submission materials at least 10 business days before the conference date.

  6. Associate Chief Counsel will contact the taxpayer, the agent, and the Division Counsel attorney within five business days of receipt of the request to schedule a pre-submission conference and notify all parties involved of the date, time and conference call number.

  7. Examiner: If you, your manager and Associate Chief Counsel decide during the pre-submission conference that technical advice:

    1. Is not warranted, continue processing the case under normal procedures.

    2. Is warranted, continue to prepare and submit the formal technical advice package.

  8. During the pre-submission conference, Associate Chief Counsel may raise new issues in addition to those submitted by the field office and the taxpayer.

4.80.1.10.4 (02-23-2021)

Preparation of the Technical Advice Package

  1. Prepare the technical advice package with the assigned TLS’s and the Division Counsel attorney’s help. The package includes:

    1. Form 4463, Request for Technical Advice

    2. Agreed Statement of issue and facts (3 copies)

    3. The Exam group’s statement of law and argument (3 copies)

    4. The taxpayer’s statement of law and argument (3 copies)

    5. Other information for Associate Office consideration, including all supporting documents

    6. Form 2848, Power of Attorney and Declaration of Representative

    7. Taxpayer’s Deletion Statement (taxpayer’s request to delete certain taxpayer information)

    8. Memorandum of Issue(s), Facts, Law and Arguments

    9. Memorandum-Resolution of Disagreement and taxpayer’s Statement

    10. IRC 7805(b) Relief Request

    11. Documentation supporting Director’s approval of the TAM

    12. Any other supporting documentation

    Note:

    Whenever possible, list the case number and name of the Associate Chief Counsel attorney assigned to the pre-submission conference on all documents.

    Note:

    Make sure Form 4463 shows the Director as the approving official and his/her address. Associate Chief Counsel will mail the TAM to this address.

  2. Every request for technical advice must include a description of the facts, issues, applicable law, and arguments supporting the taxpayer’s position on the issues and the IRS’s position on the issues.

    1. If the taxpayer and the examiner/group manager disagree about ultimate findings of fact or about the relevance of facts, include all of the facts and explain the areas of disagreement.

    2. Include in the memo an explanation of the taxpayer’s position. This explanation must discuss any relevant statutory provisions, tax treaties, court decisions, regulations, revenue rulings, revenue procedures, notices, and any other authority supporting the taxpayer’s position.

    3. Include in the memo a similar explanation of the IRS position. This explanation must discuss any relevant statutory provisions, tax treaties, court decisions, regulations, revenue rulings, revenue procedures, notices, and any other authority supporting the IRS’ position.

    4. Both the IRS and the taxpayer should comment on any existing or pending legislation, tax treaties, regulations, revenue rulings, revenue procedures, or court decisions contrary to their respective positions.

    5. If either party determines that there are no authorities contrary to its position, note this in a statement in the memo.

  3. Don’t send the exam case file with the TAM request unless Associate Chief Counsel specifically requests it.

  4. Keep original documents in the exam case file. Use copies of these documents for the technical advice package.

  5. Include only relevant information, documents, correspondence etc. related to the TAM issues.

  6. Remember that Associate Chief Counsel will base their decision on the information you provide with the technical advice package, so it’s important that you include all relevant information and clearly articulate the issues.

  7. Keep a copy of the technical advice package for reference if Associate Chief Counsel has any questions.

  8. Send a courtesy copy of Form 4463, Request for Technical Advice, to the assigned TLS and your group manager. The group manager will forward to the PM and the Director.

  9. If the request involves direct pay bonds, ensure that a minimum of one year remains on the statute of limitations for all Forms 8038-CP before you submit the request.

  10. Assemble, tab, index the technical advice package. Then, send the package through your group manager to the Division Counsel attorney who submits it to the Associate Chief Counsel attorney assigned to the case.

    Note:

    Division Counsel reviews the technical package before they submit it to Associate Chief Counsel.

  11. Division Counsel will submit Form 4463 and the rest of the technical advice package to the TSS Assignments e-mail address within 10 business days of receipt from the examiner. When possible, also e-mail accompanying documents to TSS Assignments, followed by any hard copy documents if Associate Chief Counsel requests them.

  12. Fax to TSS Assignments at (855) 592-8976, or send via express mail or private delivery service any part of the technical advice package that can’t be e-mailed to (unless an updated address is provided):

    Internal Revenue Service
    ATTN: CC:PA:LPD:TSS, Room 5336
    1111 Constitution Ave, NW
    Washington, DC 20224

4.80.1.10.5 (10-01-2018)

Electronic Submissions

  1. You may electronically submit either:

    1. Scanned copies of the technical advice package.

    2. Documents already in electronic format. Send the remaining items in hard copy.

      Exception:

      You must send hard copies of executed legal documents and penalty of perjury statements.

  2. Secure e-mail the supporting documents to Division Counsel.

4.80.1.10.6 (02-23-2021)

Responsibilities of the Examiner While Technical Advice is Pending

  1. During the technical advice process, you "own" the case. Keep all exam case files and related documents involved in the technical advice:

    1. Keep all original documents you secure during the examination.

    2. Always protect the statute of limitations on the lead exam and any related case as provided under other TEB exam procedures while Associate Chief Counsel considers the technical advice request.

    3. Issue a letter to the taxpayer to formally notify them of the technical advice and the corresponding delay in the examination.

    4. Charge time to the case on the electronic WebETS Form 6490, TE/GE Technical Time Report.

  2. Update the inventory control systems when you receive the approved Form 4463 from the Director.

    1. Update the Audit Information Management System (AIMS) and Reporting Compliance Case Management System (RCCMS) to reflect the case in status 38, Suspense, All Other.

    2. Keep control of the case on AIMS and RCCMS.

  3. If you receive any additional information for an issue pending technical advice, send the information to Associate Chief Counsel through the Division Counsel attorney.

4.80.1.10.7 (02-23-2021)

Obtaining Status Updates of the TAM

  1. The taxpayer or their representative may get information on the TAM request status by contacting the examiner who requested the TAM.

  2. The Associate Chief Counsel gives TEB and the Division Counsel attorney frequent TAM status updates (Rev. Proc. 2021-2, Section 10.02).

  3. When the TAM is complete, Associate Chief Counsel mails or e-mails the TAM to the Director and sends a copy of the TAM to the examiner and the Associate Counsel attorney.

4.80.1.10.8 (02-23-2021)

Review of the TAM by Associate Chief Counsel

  1. If Associate Chief Counsel determines that the TAM request package is deficient, the examiner, the TLS, the Division Counsel attorney and the Associate Chief Counsel attorney will work together to obtain the necessary information. If the issue can’t be resolved within seven days, Associate Chief Counsel may return the TAM request and a new TAM request may have to be submitted.

  2. Within 21 days after receipt, Associate Chief Counsel will contact the examiner and/or Division Counsel to:

    1. Discuss any procedural and substantive issues in the case

    2. Notify the examiner whether any matters have been referred to another Associate Chief Counsel attorney for assistance.

  3. When Associate Chief Counsel is ready to issue the TAM, it will communicate its conclusions and reasoning to Division Counsel. Division Counsel may informally discuss any disagreements.

  4. If Associate Chief Counsel proposes a TAM adverse to the taxpayer, and taxpayer has not waived its right to a conference, Associate Chief Counsel will inform them of the time and place of the conference.

    1. The examiner and his/her group manager will be given the opportunity to participate in that conference.

    2. Although the taxpayer is entitled to only one conference of right, Associate Chief Counsel may choose to offer additional conferences.

  5. If the taxpayer submits additional information after the conference, the examiner must either provide comments on the additional information to Associate Chief Counsel or notify them that they have no comments.

    Note:

    Consult with your group manager and the assigned TLS in deciding whether to provide and prepare comments.

  6. Before issuing the final TAM, Associate Chief Counsel will issue a preliminary TAM to the examiner and to Division Counsel.

  7. Examiner:

    1. Share the preliminary TAM with your group manager and the assigned TLS and consult with them in identifying any disagreement.

    2. Don’t discuss the TAM issues with the taxpayer while Associate Chief Counsel processes the TAM request and issues the final TAM.

  8. When the TAM is complete, Associate Chief Counsel will mail or e-mail the TAM to the Director and a copy to the examiner and the Division Counsel attorney.

  9. Examiner: send a copy to your group manager, the PM, and the assigned TLS.

4.80.1.10.9 (02-23-2021)

Effect of the TAM

  1. Associate Chief Counsel's reply to a TAM request is in two parts. Each part identifies the taxpayer by name, address, identification number and years involved.

  2. The first part of the reply is a transmittal memorandum.

    1. Don’t release the transmittal memorandum to the taxpayer.

    2. Coordinate any request, by any party, for a copy of the transmittal memorandum with the examiner’s Disclosure Officer.

    3. In unusual cases, the transmittal memorandum gives TEB other information that under the nondisclosure statutes or for other reasons may not be discussed with the taxpayer.

  3. The second part is the TAM, which contains:

    1. A statement of the issues.

    2. A statement of the facts pertinent to the issues.

    3. A statement of the pertinent law, tax treaties, regulations, revenue rulings, other precedents published in the Internal Revenue Bulletin and court decisions.

    4. A discussion of the rationale underlying conclusions reached by Associate Chief Counsel.

    5. The conclusions of Associate Chief Counsel.

  4. If a TAM is subject to IRC 6110, a notice under IRC 6110(f)(1) of intention to disclose the TAM (including a copy of the version proposed to be open to public inspection and notations of third-party communications under IRC 6110(d) will be enclosed.

  5. Don’t give a TAM involving criminal or civil fraud investigations or a jeopardy or termination assessment to the taxpayer.

  6. Process the case based on the TAM conclusions.

  7. A TAM applies only to the taxpayer for which technical advice was requested.

  8. A taxpayer may not rely on a TAM the IRS issued for another taxpayer.

4.80.1.10.10 (02-23-2021)

Responsibilities of the Examiner Upon Receipt of the TAM

  1. When you receive the TAM, update AIMS and RCCMS to status 12, Assigned with Taxpayer Contact.

  2. If the Director, PM, and group manager agree with Associate Chief Counsel’s recommendations, and don't request reconsideration, send a copy of the TAM by certified mail to the taxpayer and its designated representatives within 30 days after you receive it.

  3. Send the taxpayer:

    1. A cover letter describing the enclosed attachments

      Note:

      The cover letter should emphasize the 20-day response period for additional IRC 6110 deletions.

    2. An exact copy of the TAM as received from Associate Chief Counsel.

    3. A copy of the TAM with proposed deletions under IRC 6110.

    4. Notice 438, Notice of Intention to Disclose.

  4. The TAM takes effect when the taxpayer receives it.

4.80.1.10.11 (02-23-2021)

Notice 438, Notice of Intention to Disclose

  1. IRS must include Notice 438 with TAM notices subject to IRC 6110. The notice states the IRS intends to disclose the TAM (including a copy of the version proposed to be open to public inspection and notations of third-party communications under IRC 6110(d). (See IRC 6110(f)(1)).

  2. If Notice 438 is required, Associate Chief Counsel sends it with the TAM and lists the information the examiner must complete, before sending it to the taxpayer.

  3. Notice 438 informs taxpayers of their right to request additional deletions from the sanitized TAM.

  4. Per Notice 438, the Office of Chief Counsel for Disclosure is the primary contact for the taxpayer for this matter.

  5. The examiner isn't involved in the IRC 6110 deletion process after mailing Notice 438 except to give the taxpayer directions, as needed.

  6. Before you mail the TAM Package, complete Notice 438 by filling in the taxpayer's name and the required dates. Input the dates as indicated:

    1. "Mailing date of this notice" : Enter the certified mailing date.

    2. "Last date to request IRS review" : Enter the 20th day after the notice mailing date. If the 20th day falls on a weekend or holiday, then enter the next business day.

    3. "Last Date to petition Tax Court" : Enter the 60th day after the notice mailing date. If the 60th day falls on a weekend or holiday, then enter the next business day.

    4. "Date open to public inspection" : Enter the Friday preceding the 90th day. Enter the date after the notice mailing date. If that Friday falls on a holiday, then enter the previous business day.

4.80.1.10.12 (10-01-2018)

Withdrawal of Requests for Technical Advice

  1. Once the request for a TAM has been sent to Associate Chief Counsel, only the Director may withdraw the request, and it may only be done before the responding transmittal memorandum for the TAM is signed.

4.80.1.10.13 (10-01-2018)

Conclusion of the Case When Technical Advice is Received

  1. After you mail the TAM to the taxpayer, complete the case based on the TAM’s conclusions.

  2. Follow the normal "agreed" or "unagreed" closing procedures, as applicable.

  3. If the issue covered by the TAM is still in disagreement, include the TAM in the RCCMS Workpapers.

  4. Technical advice cases aren't subject to mandatory review unless they meet one of the other criteria for mandatory review.

  5. The holdings in a TAM are applied retroactively, unless the TAM grants section 7805(b) relief.

  6. Note on Form 3198-A that the case had been in suspense, status code 38, and attach Form 3198-A to the front of the case file before it is closed.

  7. Note in the RCCMS comment box that this case was previously in status 38, and there is a Form 3198-A. This alerts the Closing Function tax examiner to change the case to status 55, Cases Previously Held in Suspense.

  8. The Closing Unit tax examiner closing an "agreed" case updates the case from status 51 to status 55 first and then to status 90, Closed, when it closes.

    Note:

    The closing unit puts the case in status code 55 immediately before placing the case in status 90. This tells AIMS that the return shouldn't be counted against the official table upon which cycle time is measured.