7.11.12 Preparing Technical Advice Requests

Manual Transmittal

November 06, 2019

Purpose

(1) This transmits revised IRM 7.11.12, Employee Plans Determination Letter Program, Preparing Technical Advice Requests.

Material Changes

(1) IRM 7.11.12.1.2 (2) was updated to change the reference for Delegation Order 7-1(a) from IRM 1.2.46.2.1 to IRM 1.2.2.8.1.1.

(2) IRM 7.11.12.1.2 (3) was updated to change the reference for Delegation Order 7-1(d) from IRM 1.2.46.2.4 to IRM 1.2.2.8.1.4.

(3) Updated and renamed IRM 7.11.12.2, Requests for Relief under IRC 7805(b), then renumbered IRM sections accordingly.

(4) Added Exhibit 7.11.12-2, Sample Recommendation Memorandum for IRC 7805(b) Relief, and renumbered Sample Statement of Issues and Facts as Exhibit 7.11.12-3.

(5) Updated to reflect current versions of annual revenue procedures.

Effect on Other Documents

This supersedes IRM 7.11.12 dated January 8, 2018. It also supersedes and incorporates the provisions of TEGE-04-0118-0001.

Audience

Tax Exempt and Government Entities
Employee Plans

Effective Date

(11-06-2019)

Catherine L. Jones
Acting Director, Employee Plans
Tax Exempt and Government Entities

Program Scope and Objectives

  1. Purpose: This IRM gives the procedures for requesting technical advice (tech advice) for an Employee Plans (EP) Determination Letter (DL) application.

  2. Audience: EP Determinations and Quality Assurance (QA) staff

  3. Policy Owner: Director, EP

  4. Program Owner: EP

  5. Program Goals: The goal of EP Determinations is to ensure that plans are in compliance with the tax laws by reviewing applications for DLs, opinion letters, and advisory letters, and to protect the public interest by applying the tax law with integrity and fairness to all.

Background

  1. The Office of Associate Chief Counsel (Employee Benefits, Exempt Organizations and Employment Taxes) (ACC) in Washington, D.C.

    1. Reviews all tech advice requests.

    2. Is responsible for determining the resolution and guidance for the specific set of facts in the request.

    3. Issues a resolution in the form of written guidance called a Technical Advice Memorandum (TAM).

    Reminder:

    Before January 1, 2015, EP Technical issued TAMs.

  2. Tech advice requests help to:

    1. Resolve complex issues.

    2. Establish and maintain consistent holdings throughout the IRS.

  3. ACC’s issuance of a TAM on the qualified status of a plan prevents the requesting plan sponsor from appealing within the IRS for issues addressed by the TAM. The TAM is based on a specific set of facts for only the plan sponsor who receives the TAM and no other plan sponsor can rely on that TAM.

  4. A request for tech advice can be initiated by EP Determinations or a plan sponsor. See IRM 7.11.12.3 (2), When to Request Technical Advice. The group manager decides whether to pursue tech advice. Get help, if necessary, from the EP QA Manager.

  5. Submit your consideration for any tech advice to the EP QA Manager after your manager agrees. EP QA:

    1. Helps address the potential issues.

    2. Supports you in preparing the tech advice request.

  6. The EP QA Manager acts as the designee for the Director, Employee Plans Rulings & Agreements and must approve the request before information is sent to TEGE DC Division Counsel (Division Counsel).

  7. Division Counsel reviews the request for tech advice and must recommend that the request be submitted to the ACC.

  8. If Division Counsel denies the request for tech advice but the specialist still believes a request is warranted, follow the reconciliation procedures in Rev. Proc. 2019-2, section 5.01. If the specialist decides that a request for tech advice from a plan sponsor is unwarranted, the plan sponsor may appeal that decision using the steps in Rev. Proc. 2019-2, section 5.03.

Authority

  1. Rev. Proc. 2019-2 (revised annually) lists the administrative procedures to request tech advice on matters under the Director, Employee Plans Rulings & Agreements of the Office of the Commissioner’s jurisdiction. See IRM 7.11.12.3 (2), When to Request a Technical Advice, for EP Determination issues for which you’re required to submit for tech advice.

  2. Delegation Order 7-1a states that the authority to issue favorable DLs on the qualified status of pension, profit-sharing, stock bonus, annuity, and employee stock ownership plans under IRC 401, IRC 403(a), IRC 409, and IRC 4975(e)(7) and the status for exemption of any related trusts or custodial accounts under IRC 501(a) is delegated to the Director, Employee Plans, and has been re-delegated to the Director, EP Rulings and Agreements. IRM 1.2.2.8.1.1

  3. Delegation Order 7-1d, delegates the authority to allow a plan to be amended after the expiration of its IRC 401(b) remedial amendment period to the Director, EP Rulings and Agreements. IRM 1.2.2.8.1.4.

  4. Find a complete list of delegation orders governing EP Rulings and Agreements at https://www.irs.gov/privacy-disclosure/delegation-orders-and-policy-statements-by-process.

  5. See IRM 7.1.1, Exhibit 7.1.1-1 for a complete list of the major EP revenue procedures currently in effect.

Acronyms

  1. These acronyms are used in this IRM:

    Acronym Term
    ACC Office of Associate Chief Counsel (Employee Benefits, Exempt Organizations and Employment Taxes)
    Division Counsel TEGE DC Division Counsel
    DL Determination Letter
    EDS Employee Plans and Exempt Organization Determination System
    EP Employee Plans
    EP R & A Director Employee Plans, Ruling and Agreements Director
    ERISA Employee Retirement Income Security Act of 1974
    QA Quality Assurance
    TAM Technical Advice Memorandum
    TEDS Tax Exempt Determination System

Requests for Relief under IRC 7805(b)

  1. Requests for relief from retroactive revocation or modification of a determination letter under IRC 7805(b) will be the decision of the Director, EP Rulings and Agreements

  2. A request for relief can occur only when the plan has a determination letter and the specialist discovers the plan document contains faulty language or fails to include required language. In other words, the determination letter was issued in error.

    Reminder:

    Without 7805(b) relief, revocation is retroactive. Generally, the revocation will be retroactive to the effective date of the plan, to the effective date of the plan provision containing the faulty language or, if later, to the effective date of the required omitted language. Retroactivity is based on when the language was effective.

  3. The request can be initiated by the taxpayer or the specialist assigned the case before the issuance of the final revocation letter.

  4. If initiated by the taxpayer, the request for retroactive relief must be in writing. The request must contain content specified in Rev. Proc. 2019-4 (updated annually) or its successor.

  5. The taxpayer’s written request must:

    1. State that relief is being made under IRC 7805(b);

    2. State the relief sought

    3. Explain the reasons and arguments in support of the relief sought; and

    4. Include any documents bearing on the request

  6. The specialist will submit the request and accompanying information to the group manager who will make the decision to accept or deny the request for relief.

    1. If the group manager believes that the request should be denied or further consideration is warranted to make an appropriate recommendation, the request will be sent to TE/GE Division Counsel Area Counsel (Area Counsel), based on geography or subject matter.

    2. Area Counsel will furnish their legal opinion, in a memorandum (memo) to the group manager as to whether the determination letter should be “applied without retroactive effect” under IRC 7805(b).

  7. The group manager will decide whether IRC 7805(b) relief should be granted or not based on the legal advice of Area Counsel or review of the case, and will advise the specialist to prepare and transmit a recommendation memorandum to the EP R & A Director Director).

    Note:

    See Exhibit 7.11.12-2, Recommendation Memorandum for IRC 7805(b) Relief for a sample recommendation memorandum.

  8. The Director will evaluate the recommendation memorandum and if necessary, consult with the appropriate Area Counsel, to determine if relief will be granted and will return a signed memorandum back to the group.

  9. The memorandum will either indicate “limited” or “not limited” retroactivity.

    1. If the decision is not limited, the Director’s office will provide rationale for the decision if not otherwise described in the body of the memorandum.

    2. If the request for relief is denied, the specialist will inform the taxpayer in writing.

When to Request Technical Advice

  1. Request tech advice:

    1. For complex or unusual issues which cannot be resolved on the basis of law, regulations, or clearly applicable published precedent, such as a revenue ruling.

    2. When there is a lack of uniformity for issue resolution.

  2. Request mandatory tech advice for all DL applications which involve the following:

    1. Plans for which the IRS is proposing to issue a revocation letter because of certain fiduciary actions that violate the exclusive benefit rule of IRC 401(a) and are subject to Employee Retirement Income Security Act of 1974, Pub. L. 93-406, 1974-3 CB 1, 43 (ERISA), Title I, Subtitle B, Part 4.

  3. Before a tech advice request is sent to ACC, make a referral per IRM 4.71.6.8, EP Group Procedures – Making Referrals to the Department of Labor (DOL), on Form 6212-B, Examination Referral Checksheet B, to the U.S. Department of Labor if the tech advice request is for a case with either:

    1. An unagreed prohibited transaction, as defined in IRC 4975(c)(1) and ERISA 406(a).

    2. A violation of the exclusive benefit rule of IRC 401(a)(2) or ERISA 404(a)(1)(A).

    Note:

    QA will tell you when to send the referral.

  4. Tech advice may be requested based on a plan sponsor’s oral or written request. The request must to be submitted through the specialist.

  5. Tech advice can’t be requested until all other case issues have been resolved. Before you request tech advice and during the tech advice process, keep the plan sponsor informed of:

    1. The issues discovered by the IRS.

    2. The IRS’s supporting authority for its position.

Initiating a Technical Advice Request

  1. Resolve all other case issues before you submit a case to your manager for tech advice consideration.

  2. The group manager must concur (and the case file documented) that a tech advice request is:

    1. Required or appropriate.

    2. Mandatory, if applicable.

  3. Let the plan sponsor know that you’re requesting tech advice and give them an opportunity to participate in the process.

  4. As stated in IRM 7.11.12.3 (4), the plan sponsor may request that an issue be referred for tech advice. Although the request for tech advice may be oral or written, the plan sponsor is required to submit a written statement of issues and facts. See Rev. Proc. 2019-2, section 5.02.

    Note:

    The plan sponsor’s statement of issues and facts 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 tech advice, and such facts are true, correct and complete." Rev. Proc. 2019-2, section 7.06.

  5. If the case is a TEDS case, close case off TEDS and convert to a paper case. Prepare the case to submit to QA for review per IRM 7.11.1, IRM Exhibit 7.11.1-2, Case File Assembly Guide.

Preparing a Draft Proposed Statement of Issues and Facts

  1. Prepare a draft proposed Statement of Issues and Facts (Draft Statement). The Draft Statement includes these sections:

    • Issues - specific questions or issues for the ACC to address.

    • Facts - a synopsis of the relevant background or plan history and the specific plan provisions in dispute. Include any information that would help the ACC understand the issues to be discussed during the conference.

    • Law - legal analysis including relevant statutory provisions, regulations, revenue rulings, revenue procedures, notices, or any other authority.

    • Plan Sponsor’s Position - arguments presented by the plan sponsor (if available).

    • IRS’s Position - analysis and arguments in support of the IRS’s position. Coordinate with your group manager to get QA’s help in forming the position.

  2. See Exhibit 7.11.12-3, Sample Statement of Issues and Facts, for an example.

  3. Once the Draft Statement is ready, get your group manager's agreement. Ask your manager to initial and date the top right-hand corner of the file copy of the Draft Statement to document the file.

  4. Send a copy of the Draft Statement to the plan sponsor for their review and comments. Prepare a cover letter which states that comments are welcome but not required and that the draft is subject to change.

    Note:

    If the plan sponsor doesn’t provide a response in a reasonable amount of time, as determined by the group manager and specialist, don’t delay the process.

  5. If the plan sponsor submits a Draft Statement, the plan sponsor is required to submit it under penalties of perjury in accordance with IRM 7.11.12.4 (4).

    Note:

    If the plan sponsor disagrees with the IRS, then include those statements in the "Plan Sponsor’s Position."

Forwarding the Draft Proposed Statement of Issues and Facts to Quality Assurance

  1. Prepare the case file and Draft Statement for QA to review and approve. Include:

    1. A cover memo signed by the group manager requesting review of the Draft Statement and data related to the request. Include in the cover memo: your contact information and a list of the items that you are sending.

    2. The Draft Statement. Secure email a copy to the QA reviewer.

    3. The written Draft Statement from the plan sponsor per Rev. Proc. 2019-2, section 6.03 and 7.01 if the plan sponsor initiated the request for tech. advice.

    4. The physical paper case file, assembled per IRM 7.11.1, IRM Exhibit 7.11.1-2, Case File Assembly Guide.

  2. Prepare Form 3198-A, Special Handling Notice, select the "Other" box and cite "Potential Technical Advice Request – Request for review of Draft Statement of issues and facts document."

  3. Update EDS with closing code ‘01’, the applicable vesting code and law indicator; the case will automatically update to status 55 for manager approval.

  4. After the group manager's approval, the group secretary enters the EDS case number and manually updates the case to QA by placing an "x" on the EDS ‘08’ "Approval of Closed Cases" screen to update the case to status 31 (Send to Review).

  5. Send the case file using a Form 3210, Document Transmittal to QA at the address listed in Exhibit 7.11.12-1, Mailing Address List.

  6. If QA returns the case, complete Form 5457, Response to Reviewer’s Memorandum- TE/GE, with comments addressing all issues the QA reviewer raised. Mail the case, Draft Statement, and attached memo to QA. Keep the case in status 32.

Assistance from Quality Assurance

  1. The QA reviewer will:

    • Evaluate Draft Statement for technical soundness.

    • Review the completeness, clarity and adequacy of the case file.

    • Return the case for additional development, if needed, using Form 5456, Reviewer’s Memorandum – TE/GE, and Form 3210.

    • Forward the Draft Statement to the QA manager for review after it has been fully developed.

  2. The QA manager will:

    1. Contact Division Counsel for consultation and recommendation that a tech advice request is warranted.

    2. Secure email the Draft Statement to Division Counsel, along with contact information for the QA reviewer, specialist and group manager. Include any additional information relevant to the request in the email.

  3. The Division Counsel attorney assigned to the case will:

    1. Contact the QA reviewer to discuss the request, including the specialist and group manager.

    2. Advise the QA reviewer of any additions, deletions, suggestions or corrections to the Draft Statement.

    3. Request the pre-submission conference package.

  4. Follow these procedures depending on Division Counsel decision:

    If Division Counsel... Then...
    Requests extensive changes or additional case development
    • QA returns the case, Draft Statement and instructions to the specialist on Form 5456 via Form 3210.

    • The specialist reviews QA and Division Counsel’s instructions and makes any necessary changes.

    • If the Draft Statement is modified, the specialist shares the new version with the Plan sponsor after QA review.

    • The specialist sends the case and Draft Statement back to QA for further processing via Form 3210.

    Approves the request QA:
    • Returns the case, Draft Statement and instructions to the specialist on Form 5456 via Form 3210.

    • Keeps the case in status 32 (update if necessary)

    • Instructs the specialist to complete the steps for the pre-submission conference in IRM 7.11.12.5.1.

    Denies the request and QA doesn’t agree The respective managers reconcile the issues within a reasonable time.
    Denies the request and QA agrees QA instructs the specialist how to close the case.

    Note:

    The plan sponsor may appeal the decision per Rev. Proc. 2019-2, section 5.03.

Pre-Submission Conference Overview

  1. A pre-submission conference is required under Rev. Proc. 2019-2, section 6 before a request for tech advice is sent to the ACC.

  2. The purpose of the conference is to reach agreement on the:

    1. Scope of the tech advice request.

    2. Factual information and documents that must be included in the formal request.

    Note:

    A pre-submission conference isn’t intended to create an alternate procedure for evaluating the merits of the positions presented. The conference is intended only to facilitate the overall process.

  3. The conference is held by telephone with:

    • Specialist and group manager

    • QA

    • Division Counsel

    • ACC

    • Plan sponsor

    • Plan sponsor’s representative, if any

  4. The QA reviewer and the Division Counsel attorney coordinate the scheduling of the conference based on time frames provided by ACC.

  5. The request for tech advice can proceed if the plan sponsor declines to participate.

  6. No taping, stenographic or other type of verbatim recording of the conference may be done by any party.

  7. Any discussion of substantive issues at the pre-submission conference:

    1. Is advisory only.

    2. Is not binding on the IRS or on ACC.

    3. Can’t be relied upon as a basis for obtaining retroactive relief under the provisions of IRC 7805(b).

Pre-Submission Conference Preparations - Specialist's Responsibilities

  1. After you receive the case from QA, inform the plan sponsor that the request to proceed with the tech advice request has been approved and send them a revised copy of the Draft Statement, if any.

  2. Give the plan sponsor 10 calendar days to respond to the revised Draft Statement and submit his or her own.

    Note:

    If the plan sponsor delays responding, don’t delay the process.

  3. Prepare the pre-submission conference package. Include:

    1. A cover memo signed by the group manager requesting a tech advice request pre-submission conference. Include in the cover memo: your contact information and a list of the material included in the pre-submission package.

    2. The latest Draft Statement. Secure email the QA reviewer a copy.

    3. Form 2848, Power of Attorney and Declaration of Representative (if applicable). Form 8821, Tax Information Authorization, is not acceptable. Rev. Proc. 2019-2, section 6.03.

    4. Copies of any relevant information, including workpapers and the plan document needed to evaluate the latest Draft Statement.

      Note:

      The case file won’t be sent to ACC, so include copies of any relevant information needed to support the Draft Statement in the pre-submission package.

    5. If the plan sponsor initiated the request for tech advice, the written Draft Statement from the plan sponsor per Rev. Proc. 2019-2, section 7.01. This statement and the declaration under penalties of perjury is required if the plan sponsor initiated the request for tech advice.

  4. Prepare Form 3198-A, select the "Other" box and cite "Technical Advice - Pre-Submission Conference Request."

  5. Send the case file and the pre-submission package via Form 3210 to the QA reviewer at the address listed on the Form 5456.

Pre-Submission Conference Preparations - QA Responsibilities

  1. The QA secretary updates the case status on EDS to status 41 (Proposed Technical Advice) using status 31.

  2. The QA reviewer reviews and evaluates the pre-submission package for:

    • technical soundness

    • uniformity

    • completeness

    • clarity

    • adequacy

  3. The QA reviewer may contact the specialist and request clarification of the pre-submission package and the case file, if required. They may also return both the package and case file for additional development, if necessary, using a Form 5456 via Form 3210.

  4. After review of the pre-submission package and any needed additional development, the reviewer forwards the package to the EP QA Manager.

  5. The EP QA manager forwards the pre-submission package to Division Counsel.

  6. Division Counsel mails the original pre-submission package items to ACC at the address in Exhibit 7.11.12-1, Mailing Address List.

  7. Participate in the pre-submission conference after ACC notifies you of the time and date. The conference should be held 15 to 30 calendar days from the notification date.

  8. Follow these procedures depending on the pre-submission conference results:

    If, as a result of the conference, it’s decided: Then:
    Tech advice shouldn’t be requested QA:
    • Returns the case file/materials to the specialist.

    • Instructs the specialist how to close the case (based on Division Counsel’s recommendations).

    The issue needs further development QA:
    • Updates case to status 32 (Returned on Review Memo)

    • Returns the case file/materials via Form 5456 with instructions for further development or other required actions.

    The specialist responds to QA on Form 5457 with the case file and sends via Form 3210.
    Tech advice will be requested QA:
    • Updates the case status to 32

    • Returns the case to the specialist to issue Letter 1399 per IRM 7.11.12.5.3, Letter 1399, Taxpayer Notification - Specialist's Responsibilities.

Letter 1399, Taxpayer Notification - Specialist's Responsibilities

  1. If the parties determine during the pre-submission conference that tech advice is warranted, resolve any issues identified during the conference and issue Letter 1399.

  2. Create the Letter 1399 using the version on the Forms/Pubs/Products Repository:

    Note:

    Select the appropriate selective paragraph for the disclosure requirements and enter 10 calendar days from the letter date for the "Required Response Date."

    1. Attach the latest Draft Statement to Letter 1399.

    2. Mail the letter and statement to the plan sponsor and representative, if applicable.

  3. The plan sponsor has 10 calendar days to provide a written statement specifying any disagreement on the issues and facts but may request an extension under Rev. Proc. 2019-2, section 7.06.

  4. If a plan sponsor responds with disagreements on the issues and facts, resolve the disagreements within 10 calendar days. If all disagreements are resolved, consult with the QA reviewer to prepare a single combined statement of the agreed issues and facts.

  5. If the disagreement can’t be resolved, send both the plan sponsor's set of issues and facts and the IRS’s latest Draft Statement to QA.

    1. QA helps the specialist to prepare a "Reconciliation" memo detailing items of disagreement.

    2. The Specialist prepares the Reconciliation Memo and attaches it to the IRS’s statement.

  6. Include in the Reconciliation Memo:

    1. Discrepancies in facts that can’t be reconciled or resolved.

    2. Relevant rebuttal of arguments presented by the plan sponsor or an explanation of how you considered the arguments in developing the latest Draft Statement.

    3. Any new information presented by the plan sponsor that was not previously included in the case file.

Prepare Technical Advice Package - Specialist's Responsibilities

  1. Prepare the tech advice package:

    1. If you don’t receive a response by the 5-day deadline described in IRM 7.11.12.5.3 (3).

    2. If the plan sponsor agrees with the Draft Statement.

    3. After you (with QA’s help) complete the Reconciliation Memo.

  2. Include copies of all relevant documents in the tech advice package. Keep all original documents in the case file.

  3. Prepare Form 4463, Request for Technical Advice or Technical Expedited Advice, for the request for tech advice. Find the form in the Forms/Pubs/Products Repository. Complete all parts (including the applicable exhibit attachment spaces) except for the Approving Official section which is completed by the Manager, EP QA.

    Note:

    To ensure that a copy of the reply to the request for tech advice is sent to the Manager of EP QA, enter the address in Exhibit 7.11.12-1, Mailing Address List, in the first box on Form 4463.

    Note:

    Complete Part 3: Case Information – "Statutory period expires" "N/A." Generally, determination cases don’t have a statute of limitations.

  4. Prepare one tech advice package with copies of the following:

    1. Completed Form 4463.

    2. Copy of Form 2848 (if applicable).

    3. Plan sponsor’s statement of proposed deletions, if any. See Rev. Proc. 2019-2, section 7.05.

    4. Letter 1399 and the latest Draft Statement.

    5. Plan sponsor's response to Letter 1399.

    6. Copy of the pertinent case file documents tabbed and indexed to Form 4463. This includes copies of the application, prior DLs, correspondence, specific plan provisions, plan document or amendment(s), and other relevant information in IRM 7.11.12.5.1 (3)(d), Pre-Submission Conference Preparation - Specialist's Responsibilities.

  5. Prepare a Form 3198-A and place it on the front of the case file, cite "Technical Advice Request" in the "Other" box.

  6. Submit the assembled and tabbed tech advice request package, along with the case file, to your manager for review and approval. After receiving approval, make one copy of the package.

  7. Send the original and the copy of the tech advice package to QA, using Form 3210 to the address in Exhibit 7.11.12-1, Mailing Address List. Keep the case in status 32.

Technical Advice Package - QA Responsibilities

  1. Conduct a final technical and procedural review of the package. Get the case file if significant changes were made to the Draft Statement.

  2. Review and complete Form 4463:

    1. Verify specialists’ entries and correct, if necessary.

    2. Secure the signature and date of the EP QA manager as the Approving Official.

  3. Update the case from status 32 to status to 56, (Technical Advice Transfer (suspense)) on EDS and notify the specialist and group manager, via secure messaging, of the update.

  4. Email the original Form 4463 and any electronic documents in the tech advice request package to Division Counsel who will forward the information to the ACC according to Rev. Proc. 2019-2, section 7.07. Mail any hard copies of documents that can’t be emailed to Division Counsel (ask them for the address).

    Note:

    When possible, list the case number and assigned pre-submission conference ACC attorney’s name on all documents.

  5. Return the copy of the tech advice package and case file if applicable, via Form 3210 to the specialist. Prepare a memo:

    1. Instruct the specialist to associate the copy of the tech advice package with the case file.

    2. Give any further instructions.

    3. Confirm that the case has been updated to status 56.

Completed Technical Advice Memorandum from the Office of Associate Chief Counsel - QA Responsibilities

  1. When QA receives the TAM, the QA manager reviews it to determine whether reconsideration is warranted.

  2. QA’s receipt of a TAM begins a 30-day period for requesting reconsideration of the advice due to specific errors in the TAM analysis and conclusions.

    1. Requests for reconsideration may not re-argue points raised in the initial request but should focus on any points that the TAM overlooked or misconstrued.

    2. The plan sponsor is not entitled to be informed that a request for reconsideration is being considered. See Rev. Proc. 2019-2, section 10.

  3. After reconsideration, or if no reconsideration is requested, send the TAM and completed tech advice package to the originating group, via Form 5456, with instructions for sending the TAM to the plan sponsor and processing the case. Update the case status from 56 to the appropriate status before you send the case back to the group.

Completed Technical Advice Memorandum from the Office of Associate Chief Counsel - Specialist Responsibilities

  1. When you receive the case back, follow any instructions in the Form 5456 and the Transmittal Memo from the ACC. If the Transmittal Memo directs us to share the TAM with the plan sponsor, mail it to the plan sponsor. See Rev. Proc. 2019-2, section 10.03.

  2. Close the case to your manager using the normal procedures.

Mailing Address List

Division Address
EP Determinations QA express mail or private delivery address Internal Revenue Service
550 Main Street
EP Determinations Quality Assurance - Stop 6403
Cincinnati, OH 45202
EP Determinations QA address Internal Revenue Service
PO Box 2508
EP Determinations Quality Assurance - Stop 6403
Cincinnati, OH 45201
ACC express mail or private delivery address Internal Revenue Service,
Attn: CC:PA:LPD:TSS, Room 5336
1111 Constitution Avenue, NW
Washington, DC 20224

Sample Recommendation Memorandum for IRC 7805(b) Relief

Internal Revenue Service
memorandum
Date:  
To: Director, [EO] [EP] [Rulings and Agreements] [Examinations] SE:T:[__:__]
Subject Application for Section 7805(b) Relief in the case of: [Taxpayer name] [(EIN: __-_______)]
Issue  
Whether [Taxpayer name] should be granted relief under § 7805(b) of the Internal Revenue Code ("I.R.C.") for all taxable years up until the issuance of a letter revoking its exempt status under § [____] of the Code.
Facts  
Taxpayer name] was recognized as exempt from federal taxation under [§ _____], effective [___________]. [Provide additional facts relevant for § 7805 analysis and recommendation.]
 
VIEWS OF THE TAXPAYER:
 
[Taxpayer name] argues that relief under § 7805(b) is appropriate for all taxable years because:
[Summarize reasons and arguments of taxpayer and reference any documents that were included as bearing upon the request. See Section 23 of Rev. Proc. 2018-4 or Section 12 of Rev. Proc. 2018-5 for relevant criteria.]
 
VIEWS OF THE GROUP MANAGER:
 
The Group Manager proposes revoking [Taxpayer name]’s tax exempt status under §[__________] effective as of [Date]. Revocation is proposed because:
 
[summarize reasons for revocation.]
 
Furthermore, the revocation should be effective [Date] because:
 
[summarize reasons for effective date of proposed revocation; reference any legal memorandum obtained from TEGEDC pursuant to 7805(b) case processing procedures.]
ANALYSIS:
 
[Section 23 of Rev. Proc. 2018-4, 2018-X I.R.B. XXX] [Section 12 of Rev. Proc. 2018-5, 2018-X I.R.B. XXX], sets forth criteria which must be met for an organization to obtain relief under § 7805(b). First, ***
 
Delegation Order 30-1 (Rev. 3) delegates authority to the Director, [EO] [EP] [Rulings and Agreements] [Examinations], to prescribe the extent to which any ruling relating to the internal revenue laws shall be applied without retroactive effect for letter rulings and determination letters issued by the Commissioner, Tax Exempt and Government Entities.
 
In the present case, [insert analysis taking into account relevant criteria]
 
RECOMMENDATION:
 
We believe granting relief under § 7805(b) [would] [would not] be appropriate in this case. [Taxpayer name] [has] [has not] met the criteria of Rev. Proc. [2018-4] [ 2018-5] for relief under § 7805(b) because [summarize reasons for recommendation].
 
Therefore, we recommend the Director, [EO] [EP] [Rulings and Agreements] [Examinations] exercise discretionary authority [to limit] [not to limit] the retroactivity of the revocation. In accordance with [section 23 of Rev. Proc. 2018-4] [section 12 of Rev. Proc. 2018-5], revocation of [Taxpayer’s] exempt status should be effective [Date] based on [significance of date].
 
DECISION:
 
Retroactivity [limited.] [not limited.]
 
[If decision is not to limit retroactivity, Director’s office to provide rationale for decision if not otherwise described previously in memorandum.]
 
Approved By: _________________________ Date: _____________________
Director
[EO] [EP] [Rulings and Agreements] [Examinations]

Sample Statement of Issues and Facts

INTERNAL REVENUE SERVICE
STATEMENT OF ISSUES AND FACTS
Taxpayer’s Name:
Taxpayer’s Address:
Taxpayer’s Identification No.
Years Involved:
Date of Conference:
or (No Conference Held)

Issue(s):

State the issue(s) in clear, precise language to pinpoint the exact question or issue that needs to be resolved.

Sample language: Whether the Plan meets the minimum participation requirements of section 401(a)(26) of the Internal Revenue Code (the "Code" )?

Sample language: Whether the Plan is required to include a reference to section 457 of the Internal Revenue Code (the "Code" ) in its definition of compensation for purposes of applying the limits of section 415 of the Code?

Facts:

Provide a synopsis of the relevant background or history of the plan and the specific plan provisions in question to help the ACC understand the issues. The essential facts should be fully represented. Use short quotations from documents in the case to aid in identifying particular areas when the conclusion depends on the interpretation of such language. However, avoid lengthy quotations whenever practicable.

Sample language: xxxxxx (hereafter "Taxpayer" ), Employer Identification Number of (enter number), adopted the xxxx (the Plan) on (enter date). The Plan was originally effective (enter date). The Plan year ends on (enter date). (Choice: The Plan last received a favorable determination letter from the Internal Revenue Service (IRS) on (enter date). OR The Plan has never received a favorable determination letter.)
Section 2.3 provides the definition of Compensation for purposes of section 415 of the Code is...

Law:

Refer to any relevant statutory provisions, regulations, revenue ruling, revenue procedures, notices, tax treaties, court decisions, or any other application authority. Ensure that all citations are directly on point. Use short quotations directly from the law when necessary but avoid lengthy quotations whenever practicable.

Sample language: Revenue Ruling 76-259, 1976-2 CB 111, provides that the pension benefit may be offset only by the vested portion of the profit sharing plan account balance.

Sample language: Section 1.401-1(b)(1)(i) of the Income Tax Regulations ("Regulations" ) defines a qualified pension plan as a plan established and maintained by an employer to provide definitely determinable benefits to its employees.

Plan Sponsor’s Position:

Include arguments presented by the plan sponsor and their POA. Skip section if none available. This section is required if the plan sponsor requested the tech advice.

Service’s Position:

Include analysis and arguments in support of the IRS’s position. Make a reasonable, good faith effort to fully prepare this section but coordinate with your group manager and QA when necessary.