4.80.1 Technical Assistance and Technical Advice Requests

Manual Transmittal

October 01, 2018

Purpose

(1) This transmits new IRM 4.80.1, Indian Tribal Governments (ITG) and Tax Exempt Bonds (TEB) Examination Program and Procedures, Technical Assistance and Technical Advice Requests.

Background

IRM 4.80.1 was previously published as IRM 4.81.9, Tax Exempt Bonds (TEB) Examination Program and Procedures, Technical Assistance and Technical Advice Requests.

IRM section 4.88.1.14.2, Indian Tribal Governments Examination Issues and Procedures, Examination Issues Pertaining to ITG Cases, Technical Advice Memorandums (dated October, 2, 2015) was also incorporated in to this new IRM.

Scope

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

Material Changes

(1) Updated previous IRM to add internal controls.

(2) Edited IRM to replace Rev. Proc. 2017-2 with Rev. Proc. 2018-2.

(3) Revised the former IRM 4.81.9 to comply with the Plain Writing Act. For additional information on the Plain Writing Act and using plain language.

(4) Revised the guidance and procedures in the previous IRM to include ITG specialists and TEB agents.

Effect on Other Documents


This IRM supersedes IRM 4.81.9 dated September 29, 2016.
This IRM supersedes IRM section 4.88.1.14.2 dated October 5, 2015.

Audience

Tax Exempt and Government Entities
Government Entities/Shared Services
Indian Tribal Governments/Tax Exempt Bonds

Effective Date

(10-01-2018)

Christie J. Jacobs
Director, Tax Exempt Bonds
Indian Tribal Governments/Tax Exempt and Government Entities

Program Scope and Objectives

  1. Purpose: IRM 4.80.1 provides guidance and procedures for ITG/TEB employees seeking technical assistance or technical advice from the Knowledge Networks (K-Nets), ITG/TEB Technical and the TE/GE Office of Associate Chief Counsel when the application of the law to the facts of their exam is unclear.

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

  3. Policy Owner: Director, ITG/TEB

  4. Program Owner: Director, ITG/TEB

Authority

  1. TAMs are submitted under Rev. Proc. 2018-2 , 2018-1 IRB 102 (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. To the extent that a provision of this IRM is inconsistent with Rev. Proc. 2018-2 (or its successor), the provision(s) of Rev. Proc. 2018-2 (or its successor) must be followed.

Responsibilities

  1. The ITG/TEB field office determines whether to request a TAM.

  2. The ITG/TEB Field Office group manager ensures that questions ITG/TEB employees submit via a TAM:

    • Interpret and properly apply the law or other legal authority

    • To a specific set of facts on the treatment of an item in a tax period under exam or in Appeals.

Program Controls

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

Acronyms and Terms

  1. This IRM uses the following acronyms and terms:

    Acronyms and Terms Description
    Agents ITG Specialists and TEB Examiners
    AIMS Audit Information Management System
    CCDM Chief Counsel Directives Manual
    Director Director, ITG/TEB
    Division Counsel The area field office of Division Counsel
    FIP Financial Institutions & Products
    FO Field Operations
    FOM Manager, Field Operations
    GE Government Entities
    IRM Internal Revenue Manual
    ITG Indian Tribal Governments
    K-Nets TEGE Knowledge Networks
    ET K-Net Employment Tax Knowledge Network
    TEB K-Net TEB Knowledge Network
    RCCMS Reporting Compliance Case Management System
    Rev. Proc. Revenue Procedure
    TAM Technical Advice Memorandum
    TEB Tax Exempt Bonds
    TLS Tax Law Specialist

Requesting Technical Assistance and Technical Advice

  1. ITG Specialists and TEB Examiners ("agents" ) may request technical assistance and/or technical advice when needed.

    1. Generally, request technical assistance through the K-Net, an ITG/TEB Technical group or Division Counsel.

    2. The field office determines whether to request technical advice because it is formal advice issued to help field offices.

  2. Before you request technical advice, attempt to resolve technical questions via research, analysis, your group managers and peers. You may also get help from:

    1. The K-Nets: (i) ITG K-Net, (ii) Employment Tax Knowledge Network (ET K-Net) and (iii) TEB K-Net.

    2. An assigned ITG/TEB Technical Group Reviewer.

    3. TEGE Division Counsel (Division Counsel).

  3. You may also get technical advice on ITG/TEB exams from the TE/GE Office of Associate Chief Counsel (Associate Chief Counsel). See IRM 4.80.1.10, Technical Advice Procedures, and Rev. Proc. 2018-2 (updated annually).

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

    1. Legal interpretations of tax law, tax treaties, regulations, revenue rulings, notices or other published precedents and application to the facts in your audit with no published precedent for determining the proper treatment of 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 a number of cases.

    4. The issue is very unusual or complex and warrants associate office consideration.

    5. The field office believes that securing technical advice would be in the best interest of the IRS.

  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.

Assistance from the K-Net

  1. Agents and managers may seek help from the applicable ITG, ET or TEB K-Net. K-Net is available to provide technical assistance on general issues or questions, including issues under consideration in an exam. However, it’s not intended to provide case specific guidance. You may:

    1. Call a 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. K-Net team members participate in discussion forum conversations, and other ITG/TEB agents may also participate.

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

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

    Note:

    Caution: Don’t include any PII when contacting the K-Nets.

Assistance from ITG/TEB Technical

  1. Agents are responsible for processing their cases and getting approval to request technical assistance from ITG/TEB Technical. This involves filling out necessary forms and providing information to move a technical assistance request forward.

  2. Agent: If your manager agrees that the case is likely to close unagreed or as a claim denial, and determines that technical assistance is warranted (with Manager, Field Operations (FOM) approval), prepare and send Form 14501, ITG/TEB Technical Assistance Request, to the appropriate ITG/TEB Technical group manager requesting a TLS for technical assistance. Your request should:

    1. Identify the taxpayer or bond issue under examination, and your and your manager’s name.

    2. Describe the identified area of noncompliance.

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

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

  4. Technical Group Manager:

    1. Notify the group manager and FOM of the TLS or Technical Reviewer assigned to handle the request.

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

  5. TLS or Technical Reviewer:

    1. Review the draft document(s) and prepare a memorandum (the "reviewer’s memorandum" ) to the group manager and agent with comments on any areas requiring further development or any required revisions to the Form 886-A.

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

    3. Update the Technical Group Manager on case progress.

  6. Agent:

    1. Provide any additional information the TLS or Technical Reviewer requires.

    2. Incorporate all revisions into the necessary documents.

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

  8. Group manager: send the following to the FOM after the TLS reviews/revises Form 886-A:

    1. Form 5701-B, Notice of Proposed Issue

    2. Form 886-A, Explanation of Items

    3. Reviewer’s memorandum

    4. Any other relevant documents

  9. FOM: Discuss any concerns with the TLS before deciding whether to approve the Form 886-A.

  10. Agent: After the technical review, prepare the relevant 30-day letter, as follows:

    ITG TEB
    • For Form 1040, ITG cases use Letter 950 or Letter 950-B as appropriate.

    • For Forms 940, 941, 945 ITG Employment Tax cases, use Letter 950-C or Letter 950-D depending upon whether case has IRC section 7346 issues.

    • For Forms 8038, 8038-B, 8038-G, 8038-GC and 8038-TC, use Letter 4413, Notice of Proposed Adverse Determination Letter.

    • For Form 8038-R, use Letter 5684, TEB Arbitrage Claim Notification of Proposed Claim Disallowance.

    • For Form 8038-CP, use either Letter 5871, Proposed Adjustments to Credits under IRC 6431 (Associated with an Appealed Bond Determination) or Letter 5871-A, TEB Proposed Adjustment to Credits under IRC 6431(30-Day Letter).

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. Obtain approval from your group manager before you contact Division Counsel.

  3. You may ask a Technical Reviewer 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. You should not apply the opinion to other cases without contacting Division Counsel.

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. 2018-2 for assistance on any technical question that develops during your exam. See IRM 4.80.1.10.2 and IRM 1.2.13.1.25, Policy Statement 4-82.

  2. Technical advice procedures:

    1. Follow Rev. Proc. 2018-2 guidelines (updated annually).

    2. Offer agents 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 as to:

    1. The interpretation and proper application of tax law, tax treaties, regulations, revenue rulings, notices or other published precedents.

    2. A specific set of facts connected to the examination of a taxpayer's return, consideration of a taxpayer’s claim for refund or credit.

    3. Any other matter under the jurisdiction of ITG/TEB.

    Note:

    See the Note in IRM 4.80.1.6(4).

  4. Contact Division Counsel before requesting a TAM. See IRM 4.80.1.2, 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 or Form 13842 , Indian Tribal Governments Request for Technical Advice, as applicable.

  6. Submit all TAM requests re ITG exams to TE/GE Office of Associate Chief Counsel. Submit TAM requests re TEB exams to FIP Office of Associate Chief Counsel.

Initiating a Request for Technical Advice:

  1. Initiate a request for TAM (to the extent possible) at the earliest stage of the examination.

    Note:

    Consider asking the K-Net or an ITG/TEB Technical Group for help to determine if the issue can be resolved without requesting a TAM.

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

  3. If your group manager agrees that technical advice may be warranted, he/she contacts the FOM to discuss the issue.

  4. After obtaining concurrence from the FOM, the group manager contacts Division Counsel to discuss the issue.

  5. Group Manager: After consulting with Division Counsel and getting their agreement to request a TAM, you must get the ITG/TEB Director’s written approval before requesting a TAM.

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

  7. Agent and group manager: If Associate Chief Counsel agrees during the Pre-Submission Conference that a TAM should be requested, prepare Form 4463, Request for Technical Advice or Technical Expedited Advice, with attachments discussing the:

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

    2. Applicable law and arguments in support of the position(s) of the IRS on the issue or issues.

    3. Applicable law and arguments in support of the position(s) of the taxpayer or issuer on the issue(s)

      Note:

      Generally, for each issue there should be separate sections for the facts, law, government’s position, taxpayer’s position and conclusion. Always work with the taxpayer/representative and attempt to reach agreement on the wording of the sections covering the issue(s).

      Note:

      The Technical Reviewer and Division Counsel attorney will help the field group prepare the TAM. See sections 7.01 and 7.06 of Rev. Proc. 2018-2.

  8. Agent and group manager:

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

    2. When the FOM agrees, send the Form 4463 to the Technical Reviewer for review.

  9. FOM: After the agent and group manager address any comments from the Technical Reviewer, send the Form 4463 to the Director for signature, as the approving official on Form 4463.

  10. Agent: Notify the taxpayer of the TAM request in writing (Technical Advice Notification).

  11. The taxpayer has no authority to bar an internal decision to seek technical advice. However, agents, group managers and the FOM may consider and document any objections received from the taxpayer.

  12. The taxpayer has five calendar days to respond to the Technical Advice Notification. If the taxpayer requests additional time:

    1. The taxpayer must: Request in writing, to extend before the five 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. Agent: When you receive the written request to extend the five-day period, immediately review it and send it to your group manager with a recommendation.

    3. Group manager: You are authorized to approve the written request to extend the five day period. You may prescribe the manner and the extent of documentation needed for this approval.

  13. If the taxpayer agrees with the issues and facts stated in the Technical Advice Notification, he/she should acknowledge agreement in writing.

    Note:

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

  14. If the taxpayer disagrees with the agent’s statement of issues and facts in the Technical Advice Notification, the taxpayer must: i) identify each point of disagreement and state the reasons for disagreement in writing, ii) respond completely to the Technical Advice Notification, and iii) include a written signature of a duly authorized individual on behalf of the taxpayer.

    Note:

    The agent and taxpayer have 10 calendar days to resolve disagreements. See section 7.06 of Rev. Proc. 2018-2.

  15. Agent:

    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 information available.

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

      Note:

      You may seek assistance from the Technical Reviewer in resolving any disagreements with the taxpayer

    3. If you and the taxpayer don’t agree on the issues and facts, submit a written notice of disagreement to the taxpayer.

  16. The taxpayer has 10 calendar days from the date of mailing or fax transmission to respond to the written notice of disagreement according to section 7.06 of Rev. Proc. 2018-2.

    Note:

    The group manager has the authority to grant an extension of the 10-day period.

  17. 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."

  18. All statements and correspondence between the agent and the taxpayer in connection with disagreement over the issues or facts will be included in the formal TAM request.

    Note:

    The Technical Reviewer and the Division Counsel attorney will help the agent prepare the memo for Associate Chief Counsel, highlighting the material factual differences.

Taxpayer Initiated Requests for Technical Advice

  1. The taxpayer may initiate a request for a TAM orally or by submitting a written statement to the agent that includes the taxpayer’s reasons for requesting the TAM (under section 5.02 of Rev. Proc. 2018-2).

  2. If you receive a taxpayer’s written statement and disagree with their statements of issues and facts, respond in writing explaining your disagreement. This response is required even if it’s determined that a request for technical advice is not 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 FOM, explaining why the taxpayer’s request for a TAM should be approved or denied.

  4. Immediately fax or secure email the summary and a copy of the taxpayer’s written statement to your group manager.

  5. Upon receipt, the group manager will immediately forward the agent’s summary and a copy of the taxpayer’s written statement with his/her recommendation to the FOM.

  6. The FOM may:

    1. Direct the manner and the extent of additional documentation needed for approval.

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

  7. If the FOM approves the taxpayer’s request for a TAM, he/she will ask the Director to review and approve.

  8. If the FOM and Director both approve of the TAM, they will both inform the group manager in writing.

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

  10. If the FOM denies the taxpayer’s request for a TAM, the agent will inform the taxpayer in writing.

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

    • A description of all pertinent facts (including any facts in dispute)

    • A statement of the issue that the taxpayer would like to have addressed

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

    • An explanation of the taxpayer’s position and the need for technical advice

    Note:

    Any extensions of the 30-day period must be requested in writing and must be approved by the Manager, Field Operations.

  12. Upon receipt of the written request from the taxpayer to appeal the decision to deny the TAM request, the group manager sends the taxpayer’s written statement, along with the agent/group manager’s statement of why the issue should not be referred to Associate Chief Counsel for technical advice, to the FOM. The FOM sends the package with his/her recommendations to the Director.

  13. If the Director agrees with the taxpayer that a TAM should be requested, he/she will inform the FOM and group manager of the decision in writing and request the assignment of a Technical Reviewer. The agent will inform the taxpayer of the decision and will submit the TAM request per IRM 4.80.1.10.1, Initiating A Request For Technical Advice.

  14. If the Director determines that a TAM is not warranted, he/she will inform the FOM and the group manager in writing. The agent will inform the taxpayer in writing of the denial of the request and the reasons for the denial.

    Note:

    The Director has 45 days to deliver a final decision per section 5.04 of Rev. Proc. 2018-2.

Pre-Submission Conference

  1. After TAM approval is secured from Division Counsel, the FOM and the Director, a pre-submission conference will be scheduled. A pre-submission conference is:

    1. Required for all TAM requests.

    2. Conducted with an Associate Chief Counsel attorney, the Division Counsel attorney, the agent, the group manager, the Technical Reviewer and the taxpayer.

  2. The purpose of the conference is to help facilitate agreement on the statement of the issue.

  3. Before the scheduled pre-submission conference, the agent must:

    1. Prepare his/her 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 provided in the parties’ statements should be sufficient to reasonably inform Counsel on the subject matter.

  4. The agent 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 facilitate Associate Chief Counsel’s understanding of the issues to be discussed during the conference.

    Note:

    The taxpayer’s failure to provide a statement of pertinent issues and facts mustn’t unduly delay the scheduling of the pre-submission conference. If they don’t provide it within a reasonable time, the conference may be scheduled without the statements.

  5. The agent will email 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.

  6. Division Counsel will review the information and email the information received from the agent to the Associate Chief Counsel TSS Assignments mailbox, requesting a pre-submission conference. Division Counsel will also include the following in the request for pre-submission conference:

    • 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 (For example, the TEB Exam Group and Manager, Field Operations).

    • A list of representatives from each IRS function that the agent 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 ITG/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.

  7. Division Counsel will fax or send the package, by express mail or private delivery service, any part of the information in IRM 4.80.1.10.3 (5) that can’t be emailed.

  8. 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.

  9. The pre-submission conference (which will most likely be by telephone) should be held within 30 calendar days after the agent is contacted.

  10. Associate Chief Counsel will arrange the pre-submission conference call and notify all parties involved of the date, time and conference call number.

  11. If it is determined during the pre-submission conference that technical advice:

    1. Is not warranted, then the agent will continue to process the case to completion under normal procedures.

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

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

Preparation of the Technical Advice Package

  1. The agent will prepare the technical advice package with the assistance of the Technical Reviewer and the Division Counsel attorney.

  2. The technical advice package generally contains the following:

    1. Form 4463, Request for Technical Advice

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

    3. The Field Office’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 for sanitizing of 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 TAM approval by the Director

    12. Any other supporting documentation

    Note:

    Whenever possible, all documents should contain the case number and name of the Associate Chief Counsel attorney assigned to the pre-submission conference for the TAM request.

    Note:

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

  3. 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 agent/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 include a discussion of 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 include a discussion of 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, that statement should be noted in the memo.

  4. Unless specifically requested, the exam case file isn’t sent to Associate Chief Counsel with the TAM request.

  5. Keep original documents in the exam case file; copies of these documents are used for the technical advice package.

  6. Include only relevant information, documents, correspondence etc. related to the issue(s) in the request.

  7. Remember that Associate Chief Counsel will base their decision on the information provided with the technical advice package, so it is important that you include all relevant information and clearly articulate the issue(s).

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

  9. Send a courtesy copy of Form 4463 , Request for Technical Advice or Technical Expedited Advice, or Form 13842 , ITG Request for Technical Assistance, to the Technical Reviewer and your group manager. The group manager will forward to the FOM and the Director.

  10. 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.

  11. Once the technical advice package is assembled, tabbed and indexed, route the package through your group manager to the Division Counsel attorney who will submit the technical advice package to the Associate Chief Counsel attorney assigned to the case.

    Note:

    Division Counsel will review the technical package before submitting it to Associate Chief Counsel.

  12. Division Counsel will submit Form 4463 and the rest of the technical advice package to the TSS Assignments email address within 10 business days of receipt from the agent. To the extent feasible, they should also submit accompanying documents to the TSS Assignments email address, followed by any hard copy documents if requested by Associate Chief Counsel.

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

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

Electronic Submissions

  1. Instead of submitting your technical advice package in hard copy form, except as noted in IRM 4.80.1.10.5(2), you may electronically submit the technical advice package.

    1. Scan all documents and submit the entire TAM electronically, but you are not required to do so.

    2. Transmit documents already in electronic format electronically and send the remaining items in hard copy, if desired.

  2. Executed legal documents and penalty of perjury statements should be transmitted in hard copy.

  3. E-mail the electronic submission material related to the TAM to Division Counsel.

Responsibilities of the Agent While Technical Advice is Pending

  1. During the technical advice process, the agent "owns" the case and maintains possession of all exam case files involved in the technical advice and all related exam files.

  2. The agent:

    1. Keeps all original documents secured during the examination.

    2. Is always responsible for ensuring that the statute of limitations is protected on the lead exam and any related case while Associate Chief Counsel considers the technical advice request.

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

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

  3. The agent must update the inventory control systems upon receipt of 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 AIMS and RCCMS case control at the group level.

  4. If an agent receives any additional information for an issue pending technical advice, he/she will route the information to Associate Chief Counsel through the Division Counsel attorney.

Obtaining Status Updates of the TAM

  1. The taxpayer or the taxpayer's representative may obtain information on the status of the request for a TAM by contacting the agent who requested the TAM.

    • See section 10.02 of Rev. Proc. 2018-2 on the time for discussing the tentative conclusion with the taxpayer's representative.

    • See section 10.09 of Rev. Proc. 2018-2 for discussing the TAM contents with the taxpayer or the taxpayer's representative.

  2. Associate Chief Counsel will update the Division Counsel attorney monthly with the TAM’s status, who in turn will email the agent of the status.

  3. When the TAM is complete, Associate Chief Counsel will mail or email the TAM to the Director and send a copy of the TAM to the agent and the Associate Counsel attorney.

Review of the TAM by Associate Chief Counsel

  1. If Associate Chief Counsel determines that the TAM request package is deficient, the agent, the Technical Reviewer, 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 agent and/or Division Counsel to discuss any procedural and substantive issues in the case and to notify the agent 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 an adverse TAM 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 agent 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 agent must either provide comments on the additional information to Associate Chief Counsel or notify them that they have no comments.

    Note:

    The agent should consult with his/her group manager and the Technical Reviewer in deciding whether to provide comments and preparing the comments.

  6. Before issuing the final TAM, Associate Chief Counsel will issue a preliminary TAM to the agent and to Division Counsel. The agent should:

    1. Share the preliminary TAM with his/her group manager and the Technical Reviewer and consult with them in identifying any disagreement.

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

  7. When the TAM is complete, Associate Chief Counsel will mail or email the TAM to the Director and a copy to the agent and the Division Counsel attorney. The agent will send a copy to his/her group manager, the FOM, and the Technical Reviewer.

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 year or years involved.

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

    1. The transmittal memorandum, which is sent with the technical advice memorandum, should never be released to the taxpayer.

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

    3. In unusual cases, the transmittal memorandum gives the ITG/TEB office 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. A TAM involving criminal or civil fraud investigations or a jeopardy or termination assessment is not furnished to the taxpayer.

  6. The agent must process the taxpayer's case on the basis of the conclusions in the TAM.

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

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

Responsibilities of the Agent Upon Receipt of the TAM

  1. Upon receipt of the TAM, update AIMS and RCCMS to status 12, Assigned with Taxpayer Contact.

  2. If the Director, FOM, and group manager concur 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 the exam group receives the TAM.

  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 it is received by the taxpayer.

Notice 438, Notice of Intention to Disclose

  1. Notice 438 must be included 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 will send it to the agent with the TAM and list the information the agent 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 agent 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:

    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.

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.

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. Notate 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. If the case is closed "agreed" , the GE closing unit will update 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 notifies AIMS that the return shouldn't be counted against the official table upon which cycle time is measured.