4.81.9 Technical Advice Requests

Manual Transmittal

September 29, 2016

Purpose

(1) This transmits revised IRM 4.81.9, Tax Exempt Bonds (TEB) Examination Program and Procedures, Technical Assistance and Technical Advice Requests.

Background

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

Scope

This IRM provides guidance and procedures for TEB examiners in obtaining technical assistance and technical advice from TEB Compliance & Program Management, Associate Counsel, and the TEB K-Net team.

Material Changes

(1) This IRM is updated to meet the requirements of P.L. 111-274 (H.R. 946), the Plain Writing Act of 2010.

(2) All references to Technical Advisor were changed because this position no longer exists in TEB.

(3) Other editorial modifications have been made throughout this IRM.

(4) Reorganized this manual to match IRM 4.71.13, Employee Plans Examinations, Technical Assistance and Technical Advice Requests in numbering and format.

Effect on Other Documents

This IRM supersedes IRM 4.81.9 dated September 4, 2015.
This IRM incorporates interim guidance memorandum TEGE-04-0815-0020, Informal Technical Assistance for Field Groups.

Audience

Tax Exempt and Government Entities
Tax Exempt Bonds

Effective Date

(09-29-2016)

Rebecca L. Harrigal
Director, Tax Exempt Bonds
Tax Exempt and Government Entities

Requesting Technical Assistance and Technical Advice

  1. Examiners may secure technical assistance when the need arises. They can get help from:

    1. The area field office of Division Counsel (Field Counsel)

    2. A CPM Technical Reviewer (CPM Technical Review)

    3. The TEB Knowledge Network (TEB K-Net)

  2. Examiners may also obtain technical advice (tech advice) related to TEB exams from the TE/GE Office of Associate Chief Counsel (Associate Chief Counsel). See IRM 4.81.9.4 Technical Advice Procedures, and Rev. Proc. 2016-2 (updated annually).

  3. Technical advice is a written advice or guidance memo given 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 in connection with the examination of a taxpayer’s return, consideration of a taxpayer’s claim for refund or credit.

    3. Any other matter under TEB Examination’s jurisdiction.

      Note:

      Request a TAM when the application of law to the facts involved in your audit is unclear. The question must be on “the interpretation and proper application of tax laws, tax treaties, regulations, revenue rulings, notices, or other precedents to a specific set of facts that concerns the treatment of an item in a year under examination.”

Assistance from Field Counsel

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

    1. Legal interpretations

    2. Case development for “unagreed” issues

  2. Obtain approval from your group manager before contacting Field Counsel.

  3. You can ask for a CPM Technical Reviewer to assist in preparing a request for Field Counsel assistance.

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

Assistance from TEB K-Net

  1. Examiners and managers may solicit assistance on technical issues through the TEB Knowledge Network (TEB K-Net).

  2. You may call a K-Net Team Member for quick and informal technical input on basic questions that will assist in independently resolving an issue.

  3. You may post questions or comments on a Discussion Forum to begin a peer-to-peer conversation. K-Net Team Members actively participate in Discussion Forum conversations, and other TEB examiners may also participate.

  4. You may use Ask A Question to ask for technical guidance or resources that will assist in independently resolving an issue. The assigned K-Net Team Member will contact you individually to discuss your question and obtain any additional clarifications necessary to provide assistance.

  5. You may attend an K-Net Event to hear technical information and ask questions related to the meeting topic. The dates and times of scheduled K-Net Events are posted on TEB K-Net Calendar.

    Note:

    K-Net is available to provide technical assistance to examiners on any general issue or question, including issues under consideration in an exam. However, it is not intended to provide case specific guidance. Do not include any PII when using the TEB Knowledge Network.

Technical Advice Procedures

  1. Technical Advice is advice furnished by Associate Chief Counsel through a technical advice memorandum (TAM). You may submit a request under Rev. Proc. 2016-2 for assistance on any technical question that develops during your exam.

  2. These procedures follow Rev. Proc. 2016-2 guidelines (updated annually). They provide examiners with guidance when requesting a TAM and cover the examiner’s responsibilities throughout the entire 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 in connection with the examination of a taxpayer's return, consideration of a taxpayer’s claim for refund or credit; or

    3. Any other matter under the jurisdiction of TEB.

    Note:

    Request a TAM when the application of the law to the facts involved in your exam is unclear. The question must be on “the interpretation and proper application of tax laws, tax treaties, regulations, revenue rulings, notices, or other precedents to a specific set of facts that concerns the treatment of an item in a period under examination.”

  4. Contact Field Counsel before requesting a TAM. See IRM 4.81.9.2, Assistance from Field Counsel.

    Note:

    You must receive support from Field Counsel before proceeding with a TAM. As discussed below, Field Counsel will assist you with the submission of the TAM request.

  5. Technical advice requests are prepared on Form 4463, Request for Technical Advice Memorandum.

  6. Submit all TAM requests to Associate Chief Counsel through Field 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 seeking guidance from TEB K-Net to determine if 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, the group manager will contact the Manager, Field Operations to discuss the issue.

  4. After obtaining concurrence from the Manager, Field Operations, the group manager will contact Field Counsel to discuss the issue.

  5. After consulting with Field Counsel and obtaining their concurrence to request a TAM, the group manager must obtain written approval from the Director before requesting a TAM.

  6. If the Director agrees that a TAM should be pursued, the Manager, Field Operations will request the assignment of a CPM Technical Reviewer and schedule a Pre-Submission Conference with Associate Chief Counsel in accordance with IRM 4.81.9.4.3, Pre-submission Conference.

  7. If Associate Chief Counsel agrees during the Pre-Submission Conference that a TAM should be requested, the examiner and group manager will prepare Form 4463 with attachments setting forth 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 on the issue or issues.

      Note:

      Generally, for each issue there should be separate sections for the facts, law, government’s position, taxpayer’s position and conclusion.

      Note:

      The CPM Technical Reviewer and Field Counsel attorney will assist the field group with preparation of the TAM. See sections 7.01 and 7.06 of Rev. Proc. 2016-2.

  8. The examiner and group manager will send the Form 4463 to the Manager, Field Operations for review.

  9. Upon concurrence of the Manager, Field Operations, the examiner and group manager will send the Form 4463 to the CPM Technical Reviewer for review.

  10. After the examiner and group manager address any comments from the CPM Technical Reviewer, the Manager, Field Operations will send the Form 4463 to the Director for signature.

    Note:

    The Director will be the approving official on Form 4463.

  11. The examiner will notify the taxpayer of the TAM request in writing (Technical Advice Notification).

  12. The taxpayer has no authority to bar an internal decision to seek technical advice. However, examiners, group managers and the Manager, Field Operations may consider and document any objections received from the taxpayer.

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

    1. The taxpayer must make a written request to extend the five-day period before expiration of the five calendar days. The request must include the specific reasons justifying the extended time requested and a written signature of a duly authorized individual on behalf of the taxpayer.

    2. Upon receipt of the written request to extend the five-day period, the examiner will immediately review the request and forward it to his/her group manager with a recommendation.

    3. The group manager must approve the written request to extend the five day period. The group manager may prescribe the manner and the extent of documentation needed for this approval.

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

    Note:

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

  15. If the taxpayer disagrees with the examiner’s statement of issues and facts in the Technical Advice Notification, the taxpayer should identify each point of disagreement and state the reasons for disagreement in writing. The taxpayer’s written statement should respond completely to the Technical Advice Notification and must include a written signature of a duly authorized individual on behalf of the taxpayer.

    Note:

    The examiner and taxpayer have ten calendar days to resolve disagreements. See section 7.06 of Rev. Proc. 2016-2.

  16. If the taxpayer’s written statement is not received or is incomplete, the examiner may advise the taxpayer that the formal request for technical advice will go forward with the information available.

  17. If the examiner disagrees with the issues and facts presented in the taxpayer’s written statement, the examiner will make every effort to resolve any disagreement over the issues and facts with the taxpayer.

    Note:

    The examiner may seek assistance from the CPM Technical Reviewer in resolving any disagreements with the taxpayer.

  18. If an agreement on the issues and facts cannot be reached between the examiner and the taxpayer, the examiner will submit a written notice of disagreement to the taxpayer.

  19. The taxpayer will have five calendar days to respond to the written notice of disagreement according to section 7.06 of Rev. Proc. 2016-2.

    Note:

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

  20. 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."

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

    Note:

    The CPM Technical Reviewer and Field Counsel attorney will assist the examiner with preparation of the memorandum for Associate Chief Counsel, highlighting the material factual differences.

Taxpayer Initiated Requests for Technical Advice

  1. Per section 5.02 of Rev. Proc. 2016-2, the taxpayer may initiate a request for a TAM orally or by submitting a written statement to the FO examiner that includes the taxpayer’s reasons for requesting the TAM.

  2. If upon receipt of the taxpayer’s written statement you disagree with the taxpayer’s statements of issues and facts, you should respond with a written notice of disagreement to the taxpayer. This response is required even if it is 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 Manager, Field Operations, explaining why the taxpayer’s request for a TAM should be approved or denied.

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

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

  6. The Manager, Field Operations may prescribe the manner and the extent of additional documentation needed for approval.

  7. The Manager, Field Operations may deny a taxpayer initiated request for a TAM on the basis of material disagreement over issues and/or facts.

  8. If the Manager, Field Operations approves the taxpayer’s request for a TAM, he or she will solicit approval from the Director.

  9. If the Manager, Field Operations and Director both approve of the TAM, they will both inform the group manager of the decision in writing.

  10. The formal TAM request will include 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.

  11. If the Manager, Field Operations denies the taxpayer’s request for a TAM, the examiner will inform the taxpayer in writing.

  12. The taxpayer may appeal the decision to deny the taxpayer’s TAM request by submitting to the examiner, within 30 calendar days after notification that 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; and 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.

  13. Upon receipt of the written request from the taxpayer to appeal the decision to deny the TAM request, the group manager will forward 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, to the Manager, Field Operations. The Manager, Field Operations will forward the package with his/her recommendations to the Director.

  14. If the Director agrees with the taxpayer that a TAM should be requested, the Director will inform the Manager, Field Operations and group manager of the decision in writing and request the assignment of a CPM Technical Reviewer. The examiner will inform the taxpayer of the decision and will submit the TAM request in accordance with IRM 4.81.9.4.1, Initiating A Request For Technical Advice.

  15. If the Director determines that a TAM is not warranted, the Director will inform the Manager, Field Operations and the group manager of the decision in writing. The examiner 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 in accordance with section 5.04 of Rev. Proc. 2016-2.

Pre-Submission Conference

  1. After TAM approval is secured from Field Counsel, the Manager, Field Operations and the Director, a pre-submission conference will be scheduled.

  2. A pre-submission conference is required for all TAM requests.

  3. A pre-submission conference is conducted with an Associate Chief Counsel attorney, the Field Counsel attorney, the examiner, the group manager, the CPM Technical Reviewer and the taxpayer.

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

  5. Prior to the scheduled pre-submission conference, the examiner must:

    1. Prepare his/her own statement of pertinent facts and issues.

    2. Solicit from the taxpayer their respective statement of pertinent facts and issues.

    3. Make sure Form 2848, Power of Attorney and Declaration of Representative, is secured for the representative involved with the TAM and that the Form 2848 covers all applicable periods.

    Note:

    The legal analysis provided in the parties’ statements should be sufficient to enable Counsel to be reasonably informed about the subject matter.

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

    Note:

    Failure of the taxpayer to provide a statement of pertinent issues and facts shall not be allowed to unduly delay the scheduling of the pre-submission conference. If it is not provided within a reasonable period of time, the conference may be scheduled without the statements.

  7. The examiner will e-mail the following items to the Field 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 need not 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.

  8. Field Counsel will review the information and will email the information received from the examiner to the Associate Chief Counsel TSS4510 mailbox, requesting a pre-submission conference. Field 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 known to the examiner that he/she 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 is to be held.

  9. To the extent any part of the information in IRM 4.81.9.4.3 (7) cannot be e-mailed, Field Counsel will fax it or send the package by express mail or private delivery service.

  10. Associate Chief Counsel will contact the taxpayer, the examiner, and the Field Counsel attorney within five business days of receipt of the request to schedule a pre-submission conference.

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

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

  13. If it is determined during the pre-submission conference that technical advice is not warranted, then the examiner will continue to process the case to completion under normal procedures.

  14. If it is determined during the pre-submission conference that technical advice is warranted, then the examiner will continue to prepare and submit the formal technical advice package.

  15. 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 examiner will prepare the technical advice package with the assistance of the CPM Technical Reviewer and the Field 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. Issuer’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 includes the Director's 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 examiner/group manager disagree about ultimate findings of fact or about the relevance of facts, all of the facts should be included with an explanation that highlights the areas of disagreement.

    2. The memorandum must include 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. The memorandum must also include a similar explanation of the position of the IRS. 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 memorandum.

  4. Unless specifically requested, the exam case file will not be sent to Associate Chief Counsel with the TAM request.

  5. Retain original documents in the exam case file. Copies of these documents will be 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. Retain a copy of the technical advice package for reference if Associate Chief Counsel has any questions concerning the request.

  9. Send a courtesy copy of Form 4463 to the CPM Technical Reviewer and your group manager. The group manager will forward to the Manager, Field Operations 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 prior to submitting the request.

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

    Note:

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

  12. Field Counsel will submit Form 4463 and the rest of the technical advice package to the TSS4510 email address within ten business days of receipt from the examiner. To the extent feasible, the accompanying documents should also be submitted to the TSS4510 email address, followed by any hard copy documents upon the request of Associate Chief Counsel.

  13. Any part of the technical advice package that cannot be e-mailed will be faxed to TSS4510 at 202-317-6718, or sent by express mail or private delivery service to (unless an updated address is provided):
    Internal Revenue Service
    Attn: CC:PA:LPD:TSS, Room 5336
    1111 Constitution Ave., NW
    Washington, DC 20224

Electronic Submissions

  1. In lieu of submitting in hard copy form, except as provided for in paragraph (2), you may electronically submit the technical advice package.

    1. With the exception of documents listed in paragraph (2), you may scan all documents and submit the entire TAM electronically, but you are not required to do so.

    2. Documents already existing in electronic format may be transmitted electronically and 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 Field Counsel.

Responsibilities of the Examiner While Technical Advice is Pending

  1. During the technical advice process, the examiner will have "ownership" of the case and will maintain possession of all exam case files involved in the technical advice and all related exam files.

  2. The examiner will maintain possession of all original documents secured during the examination.

  3. The examiner 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.

  4. The examiner is responsible for updating 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. AIMS and RCCMS should continue to reflect case control at the group level.

  5. The examiner must issue a letter to the taxpayer to formally notify them of the technical advice and the corresponding delay in the examination.

  6. The examiner will complete the case time charges on his/her electronic Form 6490, TE/GE Technical Time Report, using WebETS.

  7. If an examiner receives any additional information for an issue pending technical advice, he/she will route the information to Associate Chief Counsel through the Field 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 examiner who requested the TAM.

    • See section 10.02 of Rev. Proc. 2016-2 concerning the time for discussing the tentative conclusion with the taxpayer's representative.

    • See section 10.09 of Rev. Proc. 2016-2 regarding discussions of the contents of the TAM with the taxpayer or the taxpayer's representative.

  2. Associate Chief Counsel will give status updates of the TAM once a month to the Field Counsel attorney, who in turn will notify the examiner of the status of the TAM request through email.

  3. When the TAM is complete, Associate Chief Counsel will mail or email the TAM to the Director and will send a copy of the TAM to the examiner 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 examiner, the CPM Technical Reviewer, the Field Counsel attorney and the Associate Chief Counsel attorney will work together to obtain the necessary information. If the issue cannot be resolved within 7 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 Field Counsel to discuss any procedural and substantive issues in the case and to 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 Field Counsel. Field Counsel may informally discuss any disagreements.

  4. If Associate Chief Counsel proposes to provide a TAM that is adverse to the taxpayer, and taxpayer has not waived its right to a conference, the taxpayer will be informed by Associate Chief Counsel 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 Associate Chief Counsel with comments on the additional information or notate to Associate Chief Counsel that the examiner has no comments.

    Note:

    The examiner should consult with his/her group manager and the CPM Technical Reviewer in determining whether to provide comments as well as preparing those comments.

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

    1. The examiner should share the preliminary TAM with his/her group manager and the CPM Technical Reviewer and consult with them in identifying any disagreement.

    2. The examiner should refrain from discussing 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 e-mail the TAM to the Director and will send a copy to the examiner and the Field Counsel attorney. The examiner will send a copy to his/her group manager, the Manager, Field Operations, and the CPM 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 examiner’s Disclosure Officer.

    3. In unusual cases, the transmittal memorandum gives the 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 examiner 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 Examiner 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, Manager, Field Operations, 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’ 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)). See IRC 6110(f)(1).

  2. If Notice 438 is required, Associate Chief Counsel will send it to the examiner with the TAM and all the information that the examiner will need to complete the notice, 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 provide direction to the taxpayer, as needed.

  6. Prior to mailing 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 conclusions.

  2. The normal "agreed" or "unagreed" closing procedures should be followed as applicable.

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

  4. Tech 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 tells AIMS that the return shouldn't be counted against the official table upon which cycle time is measured.