This IRM provides guidance and information to Appeals employees for working

The mission of the IRS Independent Office of Appeals (Appeals) is to resolve tax controversies, without litigation, on a basis which is fair and impartial to both the Government and the taxpayer, promotes a consistent application and interpretation of, and voluntary compliance with, the Federal tax laws, and enhances public confidence in the integrity and efficiency of the Internal Revenue Service.

The Director, SEPR has delegated authority over issue coordination. See IRM 1.2.2.9.6, Delegation Order 8-6 (formerly DO-179, Rev. 2), Coordination of Certain Issues Before Approval of Settlement or Other Disposition in Appeals. The following authorities are delegated to the Director, Technical Guidance, or Director, International Operations (shown on the delegation order as Director, Appeals Technical Specialist):

The Director, SEPR, is generally authorized to make the final determination as to the disposition of the ACI in any case involving an ACI if the coordinating official has not concurred and the Appeals Team Manager (ATM) cannot resolve the dispute. See IRM 1.2.2.9.8, Delegation Order (DO) 8-8 (Rev-1) (formerly DO-66, Rev. 15), Authority of Appeals in Protested and Tax Court Cases.

The Director, SEPR is the executive responsible for Appeals technical guidance and international policy and procedural guidance.

The Directors, Technical Guidance and International Operations are responsible for program oversight.

The Director, Policy, Planning, Quality, and Analysis (PPQA) provides trend and data analyses and detailed summary reports for Appeals.

The table below lists common acronyms used in this section.

Appeals Technical Guidance webpage.

Appeals International Operations webpage

The Taxpayer Bill of Rights (TBOR) lists rights that already existed in the tax code, putting them in simple language and grouping them into 10 fundamental rights. Employees are responsible for being familiar with and acting in accord with taxpayer rights. See IRC 7803(a)(3), Execution of Duties in Accord with Taxpayer Rights. For additional information about the TBOR, see https://www.irs.gov/taxpayer-bill-of-rights.

An ACI is an issue with Service-wide impact or importance, requiring coordination to ensure uniformity and consistency nationwide.

The primary Technical Specialist prepares a memo to designate the issue as an ACI and then forwards it for approval through their ATM. The Director, Technical Guidance or Director, International Operations, recommends an issue for coordination to the Director, SEPR who is the approving official.

A particular issue is designated ACI because it generally involves persons or entities distributed over a wide geographic area and/or is common to:

The ACI program encompasses any of the following:

The procedures outlined in IRM 1.4.28.10 ,and IRM 8.2.1.6 require the ATE to refer all cases containing coordinated issues to Technical Guidance or International Operations.

Based on the Technical Specialist’s workload and scheduling, the Technical Specialist may be assigned as a team member or a consultant on the case.

At a minimum the Technical Specialist for the ACI should provide to the ATE an information package preferably before the Appeals conference, so the ATE can get insight into the issue, industry, or specialty area.

Issues are de-coordinated with the approval of the Director, SEPR. Factors considered include, but are not limited to:

ACIs along with the assigned Technical Specialist are listed on the Appeals website in the Appeals Issue Locator. For the public, the issues are also listed on www.irs.gov.

An ACI with Review and Concurrence (ACI RC) is an issue with Service-wide impact or importance, requiring Technical Specialist evaluation to ensure uniformity and consistency nationwide. In addition to the requirements in IRM 8.7.3.3.1, the ATE must obtain the Technical Specialist’s tentative approval of the settlement proposal and/or settlement range before any settlement options are discussed with the taxpayer.

Factors to consider in designating an issue as an Appeals Coordinated Issue (ACI) or Appeals Coordinated Issue with Review and Concurrence (ACI RC):

Factors considered in timing the coordination of an ACI or ACI RC issue:

The Technical Specialist develops Appeals Settlement Guidelines (ASG) for ACI and ACI RC Issues, when appropriate. The settlement guidelines are structured as outlined in Exhibit 8.7.3-1, Sample Outline for Appeals Settlement Guidelines/Appeals Technical Position. A signature page is also included as shown in Exhibit 8.7.3-2, Signature Page for the Appeals Settlement Guidelines/Appeals Technical Position. The Technical Specialist completes a draft ASG after obtaining an understanding of both the government's and taxpayer's position. Typically, this requires an analysis of actual cases, which includes consideration of both parties' written and/or oral presentations.

Technical Specialists submit draft ASG through their ATM to the Director (or their designee, e.g., Technical Advisor/Tax Law Specialist) for comment. Following the review, the ASG is concurrently forwarded for review and comment to:

The Technical Specialist, working in collaboration with their ATM and the Director (or designee), considers any comments received from Appeals and Chief Counsel's office, and if necessary revises the draft ASG and submits it through their ATM to the Director for review. If there are significant and material differences between Counsel's recommendations and Appeals’ revision, the ASG is sent to Counsel for a second 90-day review period. This is the final review by Counsel.

The Technical Specialist, working in collaboration with their ATM and the Director (or designee), finalizes the ASG.

The Director recommends the Appeals Settlement Guidelines for approval to the Director, SEPR, who is the approving official.

Revised ASG are generally required to be written within three months of any new court decision, ruling, or other occurrence significant enough to change the appropriate settlement range or position for that issue, regardless of whether the decision is favorable or unfavorable to the government. With respect to new court decisions, the start of the three months may be postponed to see if the decision is appealed, an Action on Decision is issued, or some other event occurs that might affect the weight the decision is given when reconsidering the appropriate settlement range.

The Director, SEPR may waive the ASG requirement for reasons such as, but not limited to, the limited number of cases or the establishment of a settlement position involving a full sustention or full concession of the issue.

ASGs are available only to IRS personnel who have a need to know, such as:

Unredacted copies are distributed only to authorized persons (on a need to know basis.) This document must be marked for official use only.

Guidelines (drafts or finals) are not given to taxpayers or their representatives. Taxpayers may make a request for the final ASG under the Freedom of Information Act (FOIA) (See IRM 11.3.13, Freedom of Information Act) since portions of the guidelines are exempt from disclosure. Also redacted copies are now available as part of the FOIA reading room and can be found under the Appeals section of Technical Guidance International Operations programs section of the www.irs.gov/appeals web site.

An Appeals Technical Position (ATP) is an unpublished settlement position. The Technical Specialist utilizes the ATP for purposes of providing settlement guidance to ATEs on an expedited basis until an ASG, if needed, is finalized.

An ATP may be prepared once Appeals obtains sufficient information from Compliance, Counsel, and taxpayers regarding (a) the facts of the issue, (b) positions to be argued in the event of litigation, and (c) taxpayer arguments. The Technical Specialist gives adequate consideration to the hazards of litigation to support the settlement position.

A Technical Specialist develops an ATP for ACI RC when appropriate. The settlement guidelines are structured as outlined in Exhibit 8.7.3-1 and includes a signature page as shown in Exhibit 8.7.3-2. The Technical Specialist completes a draft ATP after obtaining an understanding of both the government’s and taxpayer’s positions. Typically, this requires an analysis of an actual case, which includes consideration of both parties’ written and/or oral presentations.

The ATP is also a starting point for processing the ATP for DO 4-25 prescribed under IRM 8.7.3.4.3.3 or ASG under IRM 8.7.3.3.1. There is no difference between the processes prescribed in IRM 8.7.3.4.3.3 for an ATP for DO 4-25 and the ATP described in this section, as the ATP for the DO is a subset of the ATP. If the Director, Technical Guidance or International Operations determines that there is a need, the Technical Specialist will continue to develop the ATP into an ASG.

The ATP process may include forming a Screening Panel, if the issue is complex. The Screening Panel is comprised of one or more Technical Specialists, the respective ATMs, and the Director Technical Guidance or International Operations, to determine whether the issue should be worked individually by the Technical Specialist or assigned to a Working Panel.

The Screening Panel will consider the following factors:

The Working Panel is comprised of the Technical Specialist, the respective ATM, and the Tax Law Specialist. If an ATE has worked the issue on several cases, consideration should be given to inviting such ATE to assist the Technical Specialist as part of the panel. This panel will determine the settlement range and recommend whether the ATP should be developed into an ASG with the approval of the Director, Technical Guidance or International Operations (or their designee). If approved, the Technical Specialist will follow IRM 8.7.3.3.1 to process the ASG.

The Screening Panel may determine that an issue is not suitable for an ATP due to many differences in fact patterns, which make an all-inclusive ATP impractical. If this is the case, the Technical Specialist may only be able to provide an information package, which could include briefing memos, a listing of court cases, etc.

The Working Panel will have periodic conference calls to discuss the issue. The Technical Specialist should prepare an outline/agenda for the calls and follow up with meeting minutes to be shared with panel members.

In the event that there are different fact patterns, it may be necessary to draft several ATP: one for each fact pattern.

If an ATE can demonstrate that the facts fall within the range of an ATP that has a settlement range, the ATE would have the authority to propose a settlement within that given range upon concurrence with their ATM. The ATE would not have to obtain a written review and concurrence from the Technical Specialist.

Revised ATP are generally required to be written within 30 days of any new court decision, ruling, or other occurrence significant enough to change the appropriate settlement range or position for that issue regardless of whether the decision is favorable to the government. With respect to new court decisions, the start of the 30-day period may be postponed based on whether (a) the decision is appealed, (b) an Action on Decision is issued, or (c) some other event occurs. If the new court decision does not change hazards, it may be beneficial to revise or update to indicate the ATP is still current. There is no deadline for this update. If a new issue or fact pattern arises from the new court case, consider issuing an additional ATP.

See Exhibit 8.7.3-3, Table Comparing Appeals Settlement Guidelines (ASG) to Appeals Technical Position (ATP).

When contacted by an ATE either through the referral process or other contact, the Technical Specialist:

Upon initial review of a case, the ATE checks the list of ACI RC located on the Appeals Issue Locator or www.irs.gov web site.

Before scheduling the initial conference on the coordinated issue, the ATE makes a referral to Technical Guidance or International Operations following the procedures contained in IRM 1.4.28.10, and IRM 8.2.1.6

The ATE obtains review and concurrence on issues designated as ACI RC before the proposed settlement is offered to the taxpayer.

The ATE forwards a rough draft of the ACM (and any related documents requested by the Technical Specialist such as copies of documents, RAR, protest, closing agreements, etc.) to the Technical Specialist, whether the Technical Specialist is a team member. The Technical Specialist may waive this requirement after discussing the issue with the ATE.

The ATE obtains the Technical Specialist's tentative approval of the settlement proposal and/or settlement range before any settlement options are discussed with the taxpayer.

The ATE sends the Technical Specialist a copy of the portion of the final ACM and Closing Agreement, if any, which discusses the coordinated issue.

When closing the case, the ATE notes on the Form 5402, Appeals Transmittal and Case Memo, that the Technical Specialist concurs with the proposed disposition of the coordinated issue.

If the Technical Specialist does not concur with the proposed disposition of the coordinated issue, the ATE attaches a copy of the Technical Specialist's memorandum (rebuttal) to the ACM. See IRM 8.7.3.5.1, for procedures on how to resolve the dispute.

Delegation Order 4-25 (Rev. 2) allows designated Compliance managers to settle coordinated issues at the Compliance level when ASG or Appeals Settlement Positions (ASP) (or settlement ranges) are approved by the Director, SEPR. See IRM 1.2.2.5.21 for Delegation Order 4-25 (Rev. 2).

In the case of an approved settlement of a coordinated Appeals issue where the result is "Contrary to Service Position" and the settlement is a full concession without offsetting consideration, the procedures described in IRM 8.6.3.3, Procedures if Appeals Conclusion is Contrary to Service Position, apply.

To meet the two-pronged requirement that all decision-makers are available for the FTS Session and that ACI RC are subject to the review and concurrence of the Appeals Technical Specialist, the Appeals Technical Specialist normally participates in the FTS Session with the taxpayer and Compliance. Where the Appeals Technical Specialist is unable to attend the FTS Session meeting, the Appeals Technical Specialist is available by phone to discuss review and concurrence.

If the Appeals Technical Specialist is not part of the Appeals FTS Team, settlement of the ACI RC issue remains subject to the review and concurrence of the Appeals Technical Specialist. Before executing a FTS Session Report that includes ACI RC issues, the ATE obtains the concurrence of the Appeals Technical Specialist.

If there is a disagreement between the Appeals Technical Specialists and the ATE on how to settle the issue, follow resolution procedures IRM 8.7.3.5.

To ensure Appeals’ independence, Appeals will follow the Appeals Rules of Engagement in all interactions with Compliance Issue Specialists and teams. See Exhibit 8.7.3-4, Appeals Rules of Engagement.

The Technical Specialists and ATEs follow the procedures listed above for Appeals Coordinated Issues with or without review and concurrence, including the referral procedures in IRM 8.2.1.6(2).

Any settlement devised by Appeals must have a basis in the law and be based upon the hazards of litigation. Settlement offers not considered to be based on hazards or have a basis in the law include:

If deductions for transaction fees and other out-of-pocket expenditures are a component of a settlement, the overall settlement is based upon the hazards of litigation inherent in the issue.

Appeals is not precluded from offering the terms of settlement initiatives authorized by the Commissioner that fall outside these guidelines.

Penalties related to ATAT issues are coordinated along with the related issue. See IRM 5.20, Abusive Tax Avoidance Transactions (ATAT).

Settlements must be based on the merits of the penalty issue standing alone. Legal hazards inherent in the penalty as well as facts specific to the taxpayer, including reasonable cause and good faith factors, are considered in the settlement of penalties. Exercise care to fully explain the settlement in the supporting statement.

The Technical Specialist determines which agreement forms are appropriate for any coordinated issue.

Because finality is encouraged in the settlement of coordinated issues, it is recommended Form 870-AD, or similar waiver form be used.

Closing Agreements are especially encouraged in cases in which the settlement provides taxpayers with material tax advantages in years not before Appeals. Form 866 , Agreement as to Final Determination of Tax Liability, or Form 906, Closing Agreement on Final Determination Covering Specific Matters, can be used.

Announcement 2006-100 states that effective 12/04/2006, the Operating Divisions issue all statutory notices of deficiency or other determination notices (including statutory notices of claim disallowance or FPAA/FSAA, but not including notices of determination on Collection Due Process cases) triggering litigation rights on non-docketed cases involving an unagreed listed transaction. Listed transactions are defined under Treas. Reg.1.6011-4.

The "LT" feature code is input on all cases in Appeals inventory containing at least one listed transaction. A list of listed transactions is posted to the Appeals Technical Guidance or International Operations web sites.

ATEs conduct settlement negotiations in accordance with established procedures, inclusive of applicable ACI and ACI RC procedures set forth in IRM 8.7.3. Generally, the majority of cases are settled in Appeals jurisdiction but when a listed transaction cannot be settled, special procedures apply.

Once Appeals determines settlement is not possible, the ATE informs the taxpayer the case is being closed in Appeals and returned to the Operating Division in accordance with Announcement 2006-100. Returning the case to the Operating Division is done after efforts to resolve the case, including Post-Appeals mediation, if appropriate, are completed.

Appeals continues to prepare statutory notice language, the ACM, and also shares any computational work that is complete with Compliance (such as RAR computational review of Coordinated Industry Cases or computations prepared in processing partial agreements). See IRM 8.17.4.2, Information to Know Before Preparing Notices of Deficiency.

Related issues (employment tax, plan qualifications, tax exempt status determinations and penalties) are considered by the ATE and handled according to Appeals’ existing procedures. If agreement is not possible, the issue is returned along with the listed transaction issue to Compliance for processing and issuance of appropriate notices or letters.

In cases where the listed transaction is settled, but the related penalty is unagreed, (after Post Appeals Mediation is offered), Appeals closes the settled transaction agreed, with a Form 906, and prepares the ACM and the notice language for the related penalty. The case is closed to APS so it can be returned to Compliance for issuance of the appropriate notice.

If the LT Feature Code has been properly added, Form 5402, automatically populates the following identification on Form 5402: "Unsettled Listed Transaction Case – Transfer to Originating Function for issuance of statutory notice."

A discussion of the role of the U.S. competent authority and the mutual agreement procedure (MAP) process are found in Rev. Proc. 2015-40 Section 2. The procedures for taxpayers seeking competent authority assistance when the case is in Appeals are found in Section 6 of Rev. Proc. 2015-40.

In general, competent authority issues accepted for consideration by the U.S. competent authority are not subject to the concurrent jurisdiction of Appeals. However, a taxpayer may request simultaneous appeals procedure (SAP), which is a review of a competent authority issue under the jurisdiction of the U.S. competent authority with the assistance of Appeals. For a competent authority issue that is initially under the jurisdiction of Appeals, the U.S. competent authority will decline to provide assistance unless the taxpayer, in accordance with the requirements of Rev. Proc. 2015-40, effectively severs the issue from its protest and then timely files a competent authority request with respect to the issue. This revenue procedure does not limit the ability of a taxpayer to obtain Appeals review of a competent authority issue that remains after the U.S. competent authority process has concluded.

See IRM 8.7.3.8.2 for information concerning Appeals procedures, responsibilities and authority when the taxpayer is seeking a resolution of the issue in Appeals prior to requesting competent authority consideration.

If the competent authority request is filed while the case is still under examination, Compliance continues to work on all issues not covered by the request. When issues are raised in an examination which are not under competent authority consideration and the taxpayer is not in agreement with the examination, Compliance proceeds with the case and issues a 30-day letter. In protesting the unagreed issues, the taxpayer does not need to address any unagreed issue under consideration by the U.S. competent authority. Following the receipt of the taxpayer’s protest, Appeals procedures are initiated with respect to all unagreed issues not under competent authority consideration.

The ATE will issue Form 15229, Appeals/Competent Authority Coordination Memo, to the Competent Authority Director to identify the U.S. competent authority analyst to ensure timely coordination and final resolution.

The following guidelines are utilized for handling Appeals cases with potential competent authority issues.

A taxpayer that initially presents a competent authority issue to Appeals may still request competent authority assistance to seek potential full benefits only if it satisfies the following conditions:

If the U.S. Competent Authority accepts the request, it will assume exclusive jurisdiction over the competent authority issues that it has accepted. When a request for competent authority assistance is filed while a case is in Appeals, the taxpayer will prepare the request in accordance with the guidelines in Rev. Proc. 2015-40. The taxpayer will provide a copy of the request to the ATE. The ATE should contact the U.S. Competent Authority to ensure the receipt of the taxpayer’s request and issue Form 15229 to the Competent Authority Director.

Once the competent authority resolution has been finalized, the competent authority will direct Appeals to implement the resolution terms.

An appeal hearing may be provided for an issue that was in competent authority jurisdiction after being severed from Appeals, if, with respect to that competent authority issue, (a) the U.S. Competent Authority rejects the assistance request or terminates the competent authority process, (b) the taxpayer withdraws its request for competent authority assistance, (c) the competent authorities do not reach a competent authority resolution, or (d) the taxpayer does not accept the terms of the competent authority resolution. See Rev. Proc. 2015-40 (or successor guidance applicable to the U.S. Competent Authority process) for additional information.