IRS Revenue Procedure
2002-5

 Code Sec. NONE



<<FULL TEXT>>

26 CFR 601.201: Rulings and determination letters.


REV. PROC. 2002-5

TABLE OF CONTENTS

SECTION 1. WHAT IS THE PURPOSE OF THIS REVENUE PROCEDURE?

SECTION 2. WHAT CHANGES HAVE BEEN MADE TO REV. PROC. 2001-5?

SECTION 3. WHAT IS TECHNICAL ADVICE?

SECTION 4. ON WHAT ISSUES MAY OR MUST TECHNICAL ADVICE BE REQUESTED UNDER
THIS PROCEDURE?
.01 Issues under the jurisdiction of the Commissioner, Tax Exempt and
Government Entities Division
.02 Farmers' cooperatives
.03 Basis for requesting technical advice
.04 Areas of mandatory technical advice
.05 Special procedures for certain conversions

SECTION 5. ON WHAT ISSUES MUST TECHNICAL ADVICE BE REQUESTED UNDER
DIFFERENT PROCEDURES?
.01 Matters (other than farmers' cooperatives) under the jurisdiction
of the Associate Chief Counsel (Corporate), the Associate Chief
Counsel (Financial Institutions & Products), the Associate Chief
Counsel (Income Tax & Accounting), the Associate Chief Counsel
(International), the Associate Chief Counsel (Passthroughs &
Special Industries), the Associate Chief Counsel (Procedure &
Administration), and the Division Counsel/Associate Chief Counsel
(Tax Exempt and Government Entities)
.02 Alcohol, tobacco, and firearms taxes
.03 Excise taxes

SECTION 6. MAY TECHNICAL ADVICE BE REQUESTED FOR A SECTION 301.9100-1
REQUEST DURING THE COURSE OF AN EXAMINATION?
.01 A section 301.9100-1 request is a letter ruling request
.02 Statute of limitations
.03 Address to send a section 301.9100-1 request
.04 If the return is being examined or considered by an appeals office
or a federal court, the taxpayer must notify Employee Plans
Technical or Exempt Organizations Technical who will notify the
Employee Plans Examinations Area manager or the Exempt
Organizations Examinations Area manager, the appeals office or
government counsel

SECTION 7. WHO IS RESPONSIBLE FOR REQUESTING TECHNICAL ADVICE?
.01 An Employee Plans Examinations Area manager, Exempt Organizations
Examinations Area manager, Employee Plans Determinations manager,
Exempt Organizations Determinations manager, Appeals Area
Director, SB/SE-TE/GE or Appeals Area Director, LMSB determines
whether to request technical advice
.02 Taxpayer may ask that issue be referred for technical advice

SECTION 8. WHEN SHOULD TECHNICAL ADVICE BE REQUESTED?
.01 Uniformity of position lacking
.02 When technical advice can be requested
.03 At the earliest possible stage

SECTION 9. HOW ARE PRE-SUBMISSION CONFERENCES SCHEDULED?
.01 Pre-submission conference generally is permitted when a request
for technical advice is likely and all parties agree to request
the conference
.02 Purpose of pre-submission conference
.03 Request for pre-submission conference must be submitted in writing
by the EP or EO Examinations or the EP or EO Determinations or the
appeals office
.04 Group will contact the EP or EO Examinations or the EP or EO
Determinations or the appeals office to arrange the pre-submission
conference
.05 Pre-submission conference generally held in person
.06 Certain information required to be submitted to EP or EO Technical
prior to the pre-submission conference
.07 Pre-submission conference may not be taped
.08 Discussion of substantive issues is not binding on the Service

SECTION 10. WHAT MUST BE INCLUDED IN THE REQUEST FOR TECHNICAL ADVICE?
.01 Statement of issues, facts, law, and arguments
.02 Statement pertaining to statute of limitations
.03 General provisions of sections 6104 and 6110 of the Internal
Revenue Code
.04 Application of section 6104
.05 Statement identifying information to be deleted from public
inspection
.06 Transmittal Form 5565, Request for Technical Advice-EP/EO
.07 Number of copies of request to be submitted
.08 Power of attorney
.09 Case files

SECTION 11. HOW ARE REQUESTS HANDLED?
.01 Taxpayer notified
.02 Conference offered
.03 If the taxpayer disagrees with the Service's statement of facts
.04 If the Service disagrees with the taxpayer's statement of facts
.05 If the taxpayer has not submitted the required deletions statement
.06 Criminal or civil fraud cases

SECTION 12. HOW DOES A TAXPAYER APPEAL AN EP OR EO MANAGER'S OR AN APPEALS
AREA DIRECTOR'S DECISION NOT TO SEEK TECHNICAL ADVICE?
.01 Taxpayer notified of decision not to seek technical advice
.02 Taxpayer may appeal decision not to seek technical advice
.03 EP or EO Examinations Area manager or EP or EO Determinations
manager or the applicable Appeals office determines whether
technical advice will be sought
.04 Decision may be reviewed but not appealed

SECTION 13. HOW ARE REQUESTS FOR TECHNICAL ADVICE WITHDRAWN?
.01 Taxpayer notified
.02 EP or EO Technical may provide views

SECTION 14. HOW ARE CONFERENCES SCHEDULED?
.01 If requested, offered to the taxpayer when adverse technical
advice proposed
.02 Normally held within 21 days of contact with the taxpayer
.03 21-day period may be extended if justified and approved
.04 Denial of extension cannot be appealed
.05 Entitled to one conference of right
.06 Conference may not be taped
.07 Conference may be delayed to address a request for relief under
section 7805(b)
.08 Service makes tentative recommendations
.09 Additional conferences may be offered
.10 Additional information submitted after the conference
.11 Under limited circumstances, may schedule a conference to be held
by telephone

SECTION 15. HOW IS STATUS OF REQUEST OBTAINED?
.01 Taxpayer or the taxpayer's representative may request status from
the EP or EO Examinations or the EP or EO Determinations or the
appeals office
.02 EP or EO Technical will give status updates to the EP or EO
Examinations or the EP or EO Determinations or the applicable
Appeals Area Director

SECTION 16. HOW DOES EP OR EO TECHNICAL PREPARE THE TECHNICAL ADVICE
MEMORANDUM?
.01 Delegates authority to group managers
.02 Determines whether request has been properly made
.03 Contacts the EP or EO Examinations or the EP or EO Determinations
or the appeals office to discuss issues
.04 Informs the EP or EO Examinations or the EP or EO Determinations
or the appeals office if any matters in the request have been
referred to another group or office
.05 Informs the EP or EO Examinations or the EP or EO Determinations
or the appeals office if additional information is needed
.06 Informs the EP or EO Examinations or the EP or EO Determinations
or the appeals office of the tentative conclusion
.07 If a tentative conclusion has not been reached, gives date
estimated for tentative conclusion
.08 Advises the EP or EO Examinations or the EP or EO Determinations
or the appeals office that tentative conclusion is not final
.09 Advises the EP or EO Examinations or the EP or EO Determinations
or the appeals office of final conclusions
.10 If needed, requests additional information
.11 Requests taxpayer to send additional information to EP or EO
Technical and a copy to the EP or EO Examinations or the EP or EO
Determinations or the appeals office
.12 Informs the taxpayer when requested deletions will not be made
.13 Prepares reply in two parts
.14 Routes replies to appropriate office

SECTION 17. HOW DOES EP OR EO EXAMINATIONS OR EP OR EO DETERMINATIONS OR
AN APPEALS OFFICE USE THE TECHNICAL ADVICE?
.01 Generally applies advice in processing the taxpayer's case
.02 Discussion with the taxpayer
.03 Gives copy to the taxpayer
.04 Taxpayer may protest deletions not made
.05 When no copy is given to the taxpayer

SECTION 18. WHAT IS THE EFFECT OF TECHNICAL ADVICE?
.01 Applies only to the taxpayer for whom technical advice was
requested
.02 Usually applies retroactively
.03 Generally applied retroactively to modify or revoke prior
technical advice
.04 Applies to continuing action or series of actions until
specifically withdrawn, modified or revoked
.05 Applies to continuing action or series of actions until material
facts change
.06 Does not apply retroactively under certain conditions

SECTION 19. HOW MAY RETROACTIVE EFFECT BE LIMITED?
.01 Commissioner has discretionary authority under section 7805(b)
.02 Taxpayer may request Commissioner to exercise authority
.03 Form of request to limit retroactivity -- before an examination
.04 Form of request to limit retroactivity -- during course of
examination
.05 Form of request to limit retroactivity -- technical advice that
does not modify or revoke prior memorandum
.06 Taxpayer's right to a conference
.07 Exhaustion of administrative remedies -- employee plans
determination letter requests
.08 Exhaustion of administrative remedies -- exempt organization
matters

SECTION 20. WHAT IS THE EFFECT OF THIS REVENUE PROCEDURE ON OTHER
DOCUMENTS?

SECTION 21. EFFECTIVE DATE

SECTION 22. PAPERWORK REDUCTION ACT

INDEX


SECTION 1. WHAT IS THE PURPOSE OF THIS REVENUE PROCEDURE?

This revenue procedure explains when and how Employee Plans Technical
or Exempt Organizations Technical gives technical advice to an Employee
Plans (EP) Examinations Area manager, an Exempt Organizations (EO)
Examinations Area manager, an Employee Plans (EP) Determinations manager,
an Exempt Organizations (EO) Determinations manager, or an Appeals Area
Director, SB/SE-TE/GE in the employee plans areas (including actuarial
matters) and exempt organizations areas. It also explains the rights a
taxpayer has when an EP or EO Examinations Area manager, an EP or EO
Determinations manager, or an Appeals Area Director, SB/SE-TE/GE requests
technical advice regarding a tax matter.


SECTION 2. WHAT CHANGES HAVE BEEN MADE TO REV. PROC. 2001-5?

.01 This revenue procedure is a general update of Rev. Proc. 2001-5,
2001-1 I.R.B. 164, which contains the general procedures for technical
advice requests for matters within the jurisdiction of the Commissioner,
Tax Exempt and Government Entities Division.

.02 Section 9.01 is amended to clarify that any technical advice case
is eligible for a pre-submission conference.

.03 Section 16.14 is revised to reflect the current structure for
routing EP technical advice memoranda.


SECTION 3. WHAT IS TECHNICAL ADVICE?

"Technical advice" means advice or guidance in the form of a memorandum
furnished by the Employee Plans Technical or Exempt Organizations
Technical offices, (hereinafter referred to as "EP or EO Technical"), upon
the request of an EP or EO Examinations Area manager, an EP or EO
Determinations manager or an Appeals Area Director, SB/SE-TE/GE, submitted
in accordance with the provisions of this revenue procedure in response to
any technical or procedural question that develops during any proceeding
on the interpretation and proper application of tax law, tax treaties,
regulations, revenue rulings, notices or other precedents published by the
headquarters office to a specific set of facts. (The references in this
revenue procedure to an Appeals Area Director, SB/SE-TE/GE include, when
appropriate, an Appeals Area Director, LMSB, a Deputy Appeals Area
Director, LMSB, a Deputy Appeals Area Director, SB/SE-TE/GE or an Appeals
Team Manager.) Such proceedings include (1) the examination of a
taxpayer's return, (2) consideration of a taxpayer's claim for refund or
credit, (3) a taxpayer's request for a determination letter, (4) any other
matter involving a specific taxpayer under the jurisdiction of EP or EO
Examinations, EP or EO Determinations, or an appeals office or (5)
processing and considering nondocketed cases of a taxpayer in an appeals
office. However, they do not include cases in which the issue in the case
is in a docketed case for any year.

For purposes of technical advice, the term "taxpayer" includes all
persons subject to any provision of the Internal Revenue Code (including
tax-exempt entities such as governmental units which issue municipal bonds
within the meaning of section 103), and when appropriate, their
representatives. However, the instructions and the provisions of this
revenue procedure do not apply to requests for technical advice involving
any matter pertaining to tax-exempt bonds or to section 457 plans
maintained by state or local governments or tax-exempt organizations or to
mortgage credit certificates. Instead, in those instances the procedures
under Rev. Proc. 2002-2, page 82, this Bulletin must be followed.

Technical advice resolves complex issues and helps establish and
maintain consistent holdings throughout the Internal Revenue Service. An
EP or EO Examinations, an EP or EO Determinations or an appeals office may
raise an issue in any tax period, even though technical advice may have
been asked and furnished for the same or similar issue for another tax
period.

Technical advice does not include legal advice furnished to the EP or
EO Examinations or the EP or EO Determinations or the appeals office in
writing or orally, other than advice furnished pursuant to this revenue
procedure. In accordance with section 12.01 of this revenue procedure, a
taxpayer's request for referral of an issue for technical advice will not
be denied merely because EP or EO Technical has provided legal advice,
other than advice furnished pursuant to this revenue procedure, to the EP
or EO Examinations or the EP or EO Determinations or the appeals office on
the matter.


SECTION 4. ON WHAT ISSUES MAY OR MUST TECHNICAL ADVICE BE REQUESTED UNDER
THIS PROCEDURE?

ISSUES UNDER THE JURISDICTION OF THE COMMISSIONER, TAX EXEMPT AND
GOVERNMENT ENTITIES DIVISION

.01 Generally, the instructions of this revenue procedure apply to
requests for technical advice on any issue under the jurisdiction of the
Commissioner, Tax Exempt and Government Entities Division.


FARMERS' COOPERATIVES

.02 If an EP or EO Examinations, an EP or EO Determinations, an appeals
office or a taxpayer requests technical advice on a determination letter
under section 521 of the Code, the procedures under this revenue
procedure, Rev. Proc. 90-27, 1990-1 C.B. 514, as modified by Rev. Proc.
2002-8, page 252, as well as section 601.201(n) of the Statement of
Procedural Rules, must be followed.


BASIS FOR REQUESTING TECHNICAL ADVICE

.03 Requests for technical advice are encouraged on any technical or
procedural questions arising in connection with any case of the type
described in section 3 at any stage of the proceedings in an EP or EO
Examinations, an EP or EO Determinations or an appeals office that cannot
be resolved on the basis of law, regulations, or a clearly applicable
revenue ruling or other published precedent.


AREAS OF MANDATORY TECHNICAL ADVICE

.04 Requests for section 7805(b) relief are mandatory technical advice
with respect to all exempt organizations and employee plans matters.

Except for those exemption application cases handled in EO Technical in
accordance with section 6.02 of Rev. Proc. 90-27, EO Examinations, EO
Determinations and appeals offices are required to request technical
advice on their exempt organization cases concerning qualification for
exemption or foundation status for which there is no published precedent
or for which there is reason to believe that non-uniformity exists.

Regarding employee plans matters, a request for technical advice is
required in cases concerning (1) proposed adverse or proposed revocation
letters on collectively-bargained plans, (2) plans for which the Service
is proposing to issue a revocation letter because of certain fiduciary
actions that violate the exclusive benefit rule of section 401(a) of the
Code and are subject to Part 4 of Subtitle B of Title I of the Employee
Retirement Income Security Act of 1974, Pub. L. 93-406, 1974-3 C.B. 1, 43,
(3) amendments to defined contribution plans pursuant to Rev. Proc. 94-41,
1994-1 C.B. 711, in connection with a waiver of the minimum funding
standard and a request for a determination letter (see section 15 of Rev.
Proc. 2002-6, page 203, this Bulletin, and section 3.04 of Rev. Proc.
94-41), (4) termination/reestablishment and spinoff-termination cases in
which EP Examinations or EP Determinations proposes that the
Implementation Guidelines are not applicable, (5) a situation in which the
employer has had a prior termination/reestablishment or
spinoff-termination within 15 years of the time of the transaction or (6)
any determination letter case or any examination case involving a plan
amendment to convert an existing defined benefit formula to a cash balance
type benefit formula that was not previously subject to technical advice
on the conversion.


SPECIAL PROCEDURES FOR CERTAIN CONVERSIONS

.05 In the instance of section 4.04(6) above, the requirements of the
first sentence of section 10.01 below will be deemed met by the Service by
the use of the following (or similar) statement: Technical advice is
requested on the effect on the plan's qualified status of the conversion
of an existing defined benefit plan formula to a cash balance type benefit
formula.


SECTION 5. ON WHAT ISSUES MUST TECHNICAL ADVICE BE REQUESTED UNDER
DIFFERENT PROCEDURES?

MATTERS (OTHER THAN FARMERS' COOPERATIVES) UNDER THE JURISDICTION OF
THE ASSOCIATE CHIEF COUNSEL (CORPORATE), THE ASSOCIATE CHIEF COUNSEL
(FINANCIAL INSTITUTIONS & PRODUCTS), THE ASSOCIATE CHIEF COUNSEL (INCOME
TAX & ACCOUNTING), THE ASSOCIATE CHIEF COUNSEL (INTERNATIONAL), THE
ASSOCIATE CHIEF COUNSEL (PASSTHROUGHS & SPECIAL INDUSTRIES), THE ASSOCIATE
CHIEF COUNSEL (PROCEDURE & ADMINISTRATION), AND THE DIVISION
COUNSEL/ASSOCIATE CHIEF COUNSEL (TE/GE)

.01 All procedures for obtaining technical advice on issues (other than
farmers' cooperatives) under the jurisdiction of the Associate Chief
Counsel (Corporate), the Associate Chief Counsel (Financial Institutions &
Products), the Associate Chief Counsel (Income Tax & Accounting), the
Associate Chief Counsel (International), the Associate Chief Counsel
(Passthroughs & Special Industries), the Associate Chief Counsel
(Procedure & Administration), and the Division Counsel/Associate Chief
Counsel (TE/GE) including any matter pertaining to tax-exempt bonds or
mortgage credit certificates, section 457 plans, section 526 of the Code
(shipowners' protection and indemnity associations), section 528 (certain
homeowners' associations) and issues involving the interpretation or
application of the federal income tax laws and income tax treaties
relating to international transactions are contained in Rev. Proc. 2002-2.


ALCOHOL, TOBACCO, AND FIREARMS TAXES

.02 Procedures for obtaining technical advice specifically applicable
to federal alcohol, tobacco, and firearms taxes under subtitle E of the
Code are under the jurisdiction of the Bureau of Alcohol, Tobacco and
Firearms.


EXCISE TAXES

.03 Technical advice procedures regarding excise taxes (other than
excise taxes imposed under Chapters 41, 42 and 43 of the Code), and
employment taxes that employee plans and exempt organizations are subject
to, are set forth in Rev. Proc. 2002-2.


SECTION 6. MAY TECHNICAL ADVICE BE REQUESTED FOR A SECTION 301.9100-1
REQUEST DURING THE COURSE OF AN EXAMINATION?

A SECTION 301.9100-1 REQUEST IS A LETTER RULING REQUEST

.01 Except with regard to exemption application matters involving
sections 505(c) and 508, requests for an extension of time for making an
election or other application for relief under section 301.9100-1 of the
Procedure and Administration Regulations made after the examination of the
taxpayer's return has begun or made after the issues in the return are
being considered by an appeals office or a federal court are letter ruling
requests. Therefore, section 301.9100-1 requests should be submitted
pursuant to Rev. Proc. 2002-4, page 127, this Bulletin, and require
payment of the applicable user fee listed in section 6 of Rev. Proc.
2002-8.


STATUTE OF LIMITATIONS

.02 The running of any applicable period of limitations is not
suspended for the period during which a section 301.9100-1 request has
been filed. See section 301.9100-3(d)(2). If the period of limitations on
an assessment under section 6501(a) for the taxable year in which an
election should have been made, or any taxable year that would have been
affected by the election had it been timely made, will expire before
receipt of a section 301.9100-1 letter ruling, the Service ordinarily will
not issue a section 301.9100-1 ruling. See section 301.9100-3(c)(1)(ii).
Therefore, the taxpayer must secure a consent under section 6501(c)(4) to
extend the period of limitations on assessment. Note that the filing of a
protective claim for refund under section 6511 does not extend the period
of limitations on assessment. If section 301.9100-1 relief is granted, the
Service may require the taxpayer to consent to an extension of the period
of limitations for assessment. See section 301.9100-3(d)(2).

<<END RULING>>



ADDRESS TO SEND A SECTION 301.9100-1 REQUEST

.03 Requests made under section 301.9100-1, pursuant to Rev. Proc.
2002-4, together with the appropriate user fee, must be submitted to the
Internal Revenue Service by the taxpayer and addressed as follows:

Requests involving employee plans matters:

Internal Revenue Service
Commissioner, Tax Exempt and Government Entities
Attn: T:EP:RA
P.O. Box 27063
McPherson Station
Washington, DC 20038


Requests involving exempt organization matters:

Internal Revenue Service
Commissioner, Tax Exempt and Government Entities
Attn: T:EO:RA
P.O. Box 27720
McPherson Station
Washington, DC 20038


A section 301.9100-1 request may also be hand delivered between the
hours of 8:00 a.m. and 4:00 p.m. where a receipt will be given at the
Courier's Desk. In each instance, the package should be marked RULING
REQUEST SUBMISSION. See Rev. Proc. 2002-8 for the appropriate user fee.
Deliver to:

Courier's Desk
Internal Revenue Service
Attn: T:EP or T:EO
1111 Constitution Avenue, N.W.
Washington, D.C. 20224


IF RETURN IS BEING EXAMINED OR CONSIDERED BY AN APPEALS OFFICE OR A
FEDERAL COURT, THE TAXPAYER MUST NOTIFY EP OR EO TECHNICAL WHO WILL NOTIFY
THE EP OR EO EXAMINATIONS AREA MANAGER, APPEALS AREA DIRECTOR, SB/SE-TE/GE
OR GOVERNMENT COUNSEL

.04 If the taxpayer's return for the taxable year in which an election
should have been made or any taxable year that would have been affected by
the election had it been timely made is being examined by EP or EO
Examinations or the issues in the return are being considered by an
appeals office or a federal court, the taxpayer must notify EP or EO
Technical. See, section 301.9100-3(e)(4)(i) and section 6.04 of Rev. Proc.
2002-4. EP or EO Technical will notify the appropriate EP or EO
Examinations Area manager or Appeals Area Director, SB/SE-TE/GE, or
government counsel considering the return that a request for section
301.9100-1 relief has been submitted. The EP or EO specialist, appeals
officer or government counsel is not authorized to deny consideration of a
request for section 301.9100-1 relief. The letter ruling will be mailed to
the taxpayer and a copy will be sent to the appropriate EP or EO
Examinations Area manager, or Appeals Area Director, SB/SE-TE/ GE, or
government counsel.


SECTION 7. WHO IS RESPONSIBLE FOR REQUESTING TECHNICAL ADVICE?

EP OR EO EXAMINATIONS AREA MANAGER OR EP OR EO DETERMINATIONS MANAGER
OR APPEALS AREA DIRECTOR, SB/SE-TE/GE DETERMINES WHETHER TO REQUEST
TECHNICAL ADVICE

.01 The EP or EO Examinations Area manager, the EP or EO Determinations
manager or the Appeals Area Director, SB/SE-TE/GE, determines whether to
request technical advice on any issue being considered. Each request must
be submitted through proper channels and signed by a person who is
authorized to sign for the EP or EO Examinations Area manager, the EP or
EO Determinations manager or the Appeals Area Director, SB/SE-TE/GE. The
mandatory technical advice described in section 4.04(3) of this revenue
procedure, for cases concerning amendments to defined contribution plans
in connection with a waiver of the minimum funding standard and a request
for a determination letter, is treated as if it had been a request for
technical advice submitted by the EP Determinations manager. See section
15 of Rev. Proc. 2002-6 and section 3.04 of Rev. Proc. 94-41 for the
procedural rules applicable to this particular mandatory technical advice.
Taxpayer may ask that issue be referred for technical advice.

.02 While a case is under the jurisdiction of EP or EO Examinations, EP
or EO Determinations, or an Appeals Area Director, SB/SE-TE/GE, a taxpayer
may request that an issue be referred to the EP or EO Technical office for
technical advice.


SECTION 8. WHEN SHOULD TECHNICAL ADVICE BE REQUESTED?

UNIFORMITY OF POSITION LACKING

.01 Technical advice should be requested when there is a lack of
uniformity regarding the disposition of an issue or when an issue is
unusual or complex enough to warrant consideration by EP or EO Technical


WHEN TECHNICAL ADVICE CAN BE REQUESTED

.02 The provisions of this revenue procedure apply only to a case under
the jurisdiction of EP or EO Examinations, EP or EO Determinations or an
Appeals Area Director, SB/SE-TE/GE. Technical advice may also be requested
on issues considered in a prior appeals disposition, not based on mutual
concessions for the same tax period of the same taxpayer, if the appeals
office that had the case concurs in the request.

EP or EO Examinations or EP or EO Determinations may not request
technical advice on an issue if an appeals office is currently considering
an identical issue of the same taxpayer (or of a related taxpayer within
the meaning of section 267 or a member of an affiliated group of which the
taxpayer is also a member within the meaning of section 1504). A case
remains under the jurisdiction of EP or EO Examinations or EP or EO
Determinations even though an appeals office has the identical issue under
consideration in the case of another taxpayer (not related within the
meaning of section 267 or section 1504) in an entirely different
transaction. With respect to the same taxpayer or the same transaction,
when the issue is under the jurisdiction of an appeals office, and the
applicability of more than one kind of federal tax is dependent upon the
resolution of that issue, EP or EO Examinations or EP or EO Determinations
may not request technical advice on the applicability of any of the taxes
involved.

EP or EO Examinations or EP or EO Determinations or an Appeals Area
Director, SB/SE-TE/GE, also may not request technical advice on an issue
if the same issue of the same taxpayer (or of a related taxpayer within
the meaning of section 267 or a member of an affiliated group of which the
taxpayer is also a member within the meaning of section 1504) is in a
docketed case for the same taxpayer (or for a related taxpayer or a member
of an affiliated group of which the taxpayer is also a member) for any
taxable year.


AT THE EARLIEST POSSIBLE STAGE

.03 Once an issue is identified, all requests for technical advice
should be made at the earliest possible stage in any proceeding. The fact
that the issue is raised late in the examination, determination or appeals
process should not influence, however, EP or EO Examinations', EP or EO
Determinations' or an Appeals Area Director, SB/SE-TE/GE's decision to
request technical advice.


SECTION 9. HOW ARE PRE-SUBMISSION CONFERENCES SCHEDULED?

PRE-SUBMISSION CONFERENCE GENERALLY IS PERMITTED WHEN A REQUEST FOR
TECHNICAL ADVICE IS LIKELY AND ALL PARTIES AGREE TO REQUEST THE CONFERENCE

.01 In an effort to promote expeditious processing of requests for
technical advice, EP or EO Technical generally will meet with the EP or EO
Examinations or the EP or EO Determinations or the appeals office and the
taxpayer prior to the time any request for technical advice, including
mandatory technical advice, is submitted to EP or EO Technical. In cases
involving very complex issues, the EP or EO Examinations or the EP or EO
Determinations or the appeals office and the taxpayer are encouraged to
request a pre-submission conference. A request for a pre-submission
conference should be made, however, only after the EP or EO Examinations
or the EP or EO Determinations or the appeals office determines that it
will likely request technical advice and only after all parties agree that
a pre-submission conference should be requested.


PURPOSE OF PRE-SUBMISSION CONFERENCE

.02 A pre-submission conference is intended to facilitate agreement
between the parties as to the appropriate scope of the request for
technical advice, the factual information to be included in the request
for technical advice, any collateral issues that either should or should
not be included in the request for technical advice, and any other
substantive or procedural considerations that will allow EP or EO
Technical to provide the parties with technical advice as expeditiously as
possible.

A pre-submission conference is not intended to create an alternate
procedure for determining the merits of the substantive positions
advocated by the EP or EO Examinations or the EP or EO Determinations or
the appeals office or by the taxpayer. The conference is intended only to
facilitate the overall technical advice process.


REQUEST FOR PRE-SUBMISSION CONFERENCE MUST BE SUBMITTED IN WRITING BY
THE EP OR EO EXAMINATIONS OR THE EP OR EO DETERMINATIONS OR THE APPEALS
OFFICE

.03 A request for a pre-submission conference must be submitted in
writing by the EP or EO Examinations or the EP or EO Determinations or the
appeals office. The request should identify the office expected to have
jurisdiction over the request for technical advice. The request should
include a brief explanation of the primary issue so that an assignment to
the appropriate group can be made.

An original and one copy of the request should be submitted to the
appropriate address listed in section 10.06 of this revenue procedure.


GROUP WILL CONTACT THE EP OR EO EXAMINATIONS OR THE EP OR EO
DETERMINATIONS OR THE APPEALS OFFICE TO ARRANGE THE PRE-SUBMISSION
CONFERENCE

.04 Within 5 working days after it receives the request, the group
assigned responsibility for conducting the pre-submission conference will
contact the EP or EO Examinations or the EP or EO Determinations or the
appeals office to arrange a mutually convenient time for the parties to
meet in the EP or EO Technical office. The conference generally should be
held within 30 calendar days after the EP or EO Examinations or the EP or
EO Determinations or the appeals office is contacted. The EP or EO
Examinations or the EP or EO Determinations or the appeals office will be
responsible for coordinating with the taxpayer as well as with any other
Service personnel whose attendance the EP or EO Examinations or the EP or
EO Determinations or the appeals office believes would be appropriate.


PRE-SUBMISSION CONFERENCE GENERALLY HELD IN PERSON

.05 Pre-submission conferences generally will be held in person in EP
or EO Technical. However, if the EP or EO Examinations or the EP or EO
Determinations or the appeals office personnel are unable to attend the
conference, the conference may be conducted by telephone.


CERTAIN INFORMATION REQUIRED TO BE SUBMITTED TO EP OR EO TECHNICAL
PRIOR TO THE PRE-SUBMISSION CONFERENCE

.06 At least 10 working days before the scheduled pre-submission
conference, the EP or EO Examinations or the EP or EO Determinations or
the appeals office and the taxpayer should submit to EP or EO Technical a
statement of the pertinent facts (including any facts in dispute), a
statement of the issues that the parties would like to discuss, and any
legal analysis, authorities, or background documents that the parties
believe would facilitate EP or EO Technical's understanding of the issues
to be discussed at the conference. The legal analysis provided for the
pre-submission conference need not be as fully developed as the analysis
that ultimately will accompany the request for technical advice, but it
should allow EP or EO Technical to become reasonably informed regarding
the subject matter of the conference prior to the meeting. The EP or EO
Examinations or the EP or EO Determinations or the appeals office or the
taxpayer should ensure that the EP or EO Technical office receives a copy
of any required power of attorney, preferably on Form 2848, Power of
Attorney and Declaration of Representative.


PRE-SUBMISSION CONFERENCE MAY NOT BE TAPED

.07 Because pre-submission conference procedures are informal, no tape,
stenographic, or other verbatim recording of a conference may be made by
any party.


DISCUSSION OF SUBSTANTIVE ISSUES IS NOT BINDING ON THE SERVICE

.08 Any discussion of substantive issues at a pre-submission conference
is advisory only, is not binding on the Service, and cannot be relied upon
as a basis for obtaining retroactive relief under the provisions of
section 7805(b).


SECTION 10. WHAT MUST BE INCLUDED IN THE REQUEST FOR TECHNICAL ADVICE?

Statement of issues, facts, law, and arguments

.01 Whether initiated by the taxpayer or by an EP or EO Examinations
office or an EP or EO Determinations office or an appeals office, a
request for technical advice must include the facts and the issues for
which technical advice is requested, and a written statement clearly
stating the applicable law and the arguments in support of both the
Service's and the taxpayer's positions on the issue or issues.


Taxpayer must submit statement if the taxpayer initiates request for
technical advice

(1) If the taxpayer initiates the request for technical advice, the
taxpayer must submit to the EP or EO specialist or appeals officer, at the
time the taxpayer initiates the request, a written statement--

(a) stating the facts and the issues;

(b) explaining the taxpayer's position;

(c) discussing any relevant statutory provisions, tax treaties, court
decisions, regulations, revenue rulings, revenue procedures, notices, or
any other authority supporting the taxpayer's position; and

(d) stating the reasons for requesting technical advice.


If the EP or EO specialist or the appeals officer determines that
technical advice will be requested, the taxpayer's statement will be
forwarded to EP or EO Technical with the request for technical advice.


Taxpayer is encouraged to submit statement if Service initiates request
for technical advice

(2) If the request for technical advice is initiated by an EP or EO
Examinations office or by an EP or EO Determinations office or by an
appeals office, the taxpayer is encouraged to submit the written statement
described in section 10.01(1) of this revenue procedure. If the taxpayer's
statement is received after the request for technical advice has been
forwarded to EP or EO Technical, the statement will be forwarded to EP or
EO Technical for association with the technical advice request.


Statement of authorities contrary to taxpayer's position

(3) Whether the request for technical advice is initiated by the
taxpayer or by an EP or EO Examinations office or by an EP or EO
Determinations office or by an appeals office, the taxpayer is also
encouraged to comment on any legislation, tax treaties, regulations,
revenue rulings, revenue procedures, or court decisions contrary to the
taxpayer's position. If the taxpayer determines that there are no contrary
authorities, a statement to this effect would be helpful. If the taxpayer
does not furnish either contrary authorities or a statement that none
exists, the Service, in complex cases or those presenting difficult or
novel issues, may request submission of contrary authorities or a
statement that none exists.


STATEMENT PERTAINING TO STATUTE OF LIMITATIONS

.02 As part of the request, the EP or EO Examinations or the EP or EO
Determinations or the appeals office must submit a statement, in addition
to the criteria on Form 5565 referred to below, that (1) the applicable
statute of limitations has at least 180 calendar days to run before its
expiration or (2) the applicable statute of limitations will run prior to
180 calendar days from the date a request is transferred to EP or EO
Technical and the case should be processed on an expedited basis. If the
EP or EO Examinations or the EP or EO Determinations or the appeals office
obtains an extension of the statute of limitations while the request is
being processed in EP or EO Technical, the office obtaining the extension
must also submit a revised statement to EP or EO Technical advising it of
the new expiration date.

If there are less than 61 calendar days remaining before the expiration
of the statute of limitations with respect to a case being processed on an
expedited basis, the case will be returned to the office responsible for
statute control of the file unless a decision is made pursuant to IRM
Multifunctional Handbook section 121.2, Statute of Limitations Handbook
that the case can be timely processed. EP or EO Technical will telephone
(or fax notice of) its decision to the requesting EP or EO Examinations or
the EP or EO Determinations or the appeals office and will place a
memorandum in the file to reflect whatever procedural steps have been
taken.


GENERAL PROVISIONS OF SECTIONS 6104 AND 6110

.03 Generally, section 6104(a)(1)(B) provides that an application filed
with respect to: (1) the qualification of a pension, profit-sharing, or
stock bonus plan under section 401(a) or section 403(a) or an individual
retirement arrangement under section 408(a) or section 408(b) will be open
to public inspection pursuant to regulations as will (2) any application
filed for an exemption from tax under section 501(a) of an organization
forming part of a plan or account described above. Generally, section
6110(a) provides that except as provided otherwise, written determinations
(defined in section 6110(b)(1) as rulings, determination letters,
technical advice memorandums and Chief Counsel advice) and any related
background file document will be open to public inspection pursuant to
regulations.


APPLICATION OF SECTION 6104

.04 The requirements for submitting statements and other materials or
proposed deletions in technical advice memorandums before public
inspection is allowed do not apply to requests for any documents to the
extent section 6104 applies.


STATEMENT IDENTIFYING INFORMATION TO BE DELETED FROM PUBLIC INSPECTION

.05 The text of a technical advice memorandum subject to section 6110
may be open to public inspection. The Service deletes certain information
from the text before it is made available for inspection. To help the
Service make the deletions required by section 6110(c), the taxpayer must
provide a statement indicating the deletions desired ("deletions
statement"). If the taxpayer does not submit the deletions statement, the
Service will follow the procedures in section 11.05 of this revenue
procedure.

A taxpayer who wants only names, addresses, and identifying numbers
deleted should state this in the deletions statement. If the taxpayer
wants more information deleted, the deletions statement must be
accompanied by a copy of the technical advice request and supporting
documents on which the taxpayer should bracket the material to be deleted.
The deletions statement must indicate the statutory basis, under section
6110(c) for each proposed deletion.

If the taxpayer decides to ask for additional deletions before the
technical advice memorandum is issued, additional deletions statements may
be submitted.

The deletions statement must not appear in the request for technical
advice but, instead, must be made in a separate document attached to the
request.

The deletions statement must be signed and dated by the taxpayer or the
taxpayer's authorized representative. A stamped signature is not
permitted.

The taxpayer should follow these same procedures to propose deletions
from any additional information submitted after the initial request for
technical advice. An additional deletions statement, however, is not
required with each submission of additional information if the taxpayer's
initial deletions statement requests that only names, addresses, and
identifying numbers are to be deleted and the taxpayer wants the same
information deleted from the additional information.


TRANSMITTAL FORM 5565, REQUEST FOR TECHNICAL ADVICE -- EP/EO

.06 The EP or EO Examinations or the EP or EO Determinations or the
appeals office should use Form 5565, Request for Technical Advice --
EP/EO, for transmitting a request for technical advice to EP or EO
Technical using the addresses listed below.


Address to send requests from EP or EO Examinations or EP or EO
Determinations offices

Employee Plans
Internal Revenue Service
Attn: T:EP:RA
1111 Constitution Ave., NW
Washington, DC 20224

Exempt Organizations
Internal Revenue Service
Attn: T:EO:RA
1111 Constitution Ave., NW
Washington, DC 20224


Address to send requests from appeals offices

Internal Revenue Service
Director, Appeals LMSB Operations
Attn: C:AP:LMSB
Franklin Court Building
1099 14th Street, NW
Washington, DC 20005


NUMBER OF COPIES OF REQUEST TO BE SUBMITTED

.07 The EP or EO Examinations or the EP or EO Determinations or the
appeals office must submit (3) three copies of the request for technical
advice to EP or EO Technical.


POWER OF ATTORNEY

.08 Any authorized representative, as described in section 9.02 of Rev.
Proc. 2002-4, whether or not enrolled to practice, must comply with
Treasury Department Circular No. 230, as revised, and with the conference
and practice requirements of the Statement of Procedural Rules (26 CFR
part 601). It is preferred that Form 2848, Power of Attorney and
Declaration of Representative, be used with regard to requests for
technical advice under this revenue procedure.


CASE FILES

.09 The EP or EO Examinations or the EP or EO Determinations or the
appeals office will submit copies of the original documents (the
administrative file) to EP or EO Technical accompanying the applicable
Form 5565. The EP or EO Examinations or the EP or EO Determinations or the
appeals office will maintain the original documents (including any power
of attorney).


SECTION 11. HOW ARE REQUESTS HANDLED?

TAXPAYER NOTIFIED

.01 Regardless of whether the taxpayer or the Service initiates the
request for technical advice, the EP or EO Examinations or the EP or EO
Determinations or the appeals office: (1) will notify the taxpayer that
technical advice is being requested; and (2) at or before the time the
request is submitted to EP or EO Technical, will give to the taxpayer a
copy of the arguments that are being provided to EP or EO Technical in
support of its position.

If the EP or EO specialist or appeals officer initiates the request for
technical advice, he or she will give to the taxpayer a copy of the
statement of the pertinent facts and the issues proposed for submission to
EP or EO Technical.

This section 11.01 does not apply to a technical advice memorandum
described in section 11.06 of this revenue procedure.


CONFERENCE OFFERED

.02 When notifying the taxpayer that technical advice is being
requested, the EP or EO specialist or appeals officer will also tell the
taxpayer about the right to a conference in EP or EO Technical if an
adverse decision is indicated and will ask the taxpayer whether such a
conference is desired.


IF THE TAXPAYER DISAGREES WITH THE SERVICE'S STATEMENT OF FACTS

.03 If the EP or EO specialist or appeals officer initiates the request
for technical advice, the taxpayer has 10 calendar days after receiving
the statement of facts and specific issues to submit to that specialist or
officer a written statement specifying any disagreement on the facts and
issues. A taxpayer who needs more than 10 calendar days must justify, in
writing, the request for an extension of time. The extension is subject to
the approval of the EP or EO Examinations Area manager or the EP or EO
Determinations manager or the Appeals Area Director, SB/SE-TE/GE.

After receiving the taxpayer's statement of the areas of disagreement,
every effort should be made to reach agreement on the facts and the
specific points at issue before the matter is referred to EP or EO
Technical. If an agreement cannot be reached, the EP or EO Examinations or
the EP or EO Determinations or the appeals office will notify the taxpayer
in writing. Within 10 calendar days after receiving the written notice,
the taxpayer may submit a statement of the taxpayer's understanding of the
facts and the specific points at issue. A taxpayer who needs more than 10
calendar days to prepare the statement of understanding must justify, in
writing, the request for an extension of time. The extension is subject to
the approval of the EP or EO Examinations Area manager or the EP or EO
Determinations manager or the Appeals Area Director, SB/SE-TE/GE. Both the
statements of the taxpayer and the EP or EO Examinations or EP or EO
Determinations or appeals office will be forwarded to EP or EO Technical
with the request for technical advice.

When EP or EO Examinations or EP or EO Determinations or the Appeals
Area Director, SB/SE-TE/GE, and the taxpayer cannot agree on the material
facts and the request for technical advice does not involve the issue of
whether a letter ruling or determination letter should be modified or
revoked, EP or EO Technical, at its discretion, may refuse to provide
technical advice. If EP or EO Technical chooses to issue technical advice,
it will base its advice on the facts provided by the EP or EO Examinations
or EP or EO Determinations or appeals office.

If a request for technical advice involves the issue of whether a
letter ruling or determination letter should be modified or revoked, EP or
EO Technical will issue the technical advice.


IF THE SERVICE DISAGREES WITH THE TAXPAYER'S STATEMENT OF FACTS

.04 If the taxpayer initiates the action to request technical advice,
and the taxpayer's statement of the facts and issues is not wholly
acceptable to the EP or EO Examinations or the EP or EO Determinations or
the appeals office, the Service will notify the taxpayer in writing of the
areas of disagreement. The taxpayer has 10 calendar days after receiving
the written notice to reply to it. A taxpayer who needs more than 10
calendar days must justify in writing the request for an extension of
time. The extension is subject to the approval of the EP or EO
Examinations Area manager, or the EP or EO Determinations manager or the
Appeals Area Director, SB/SE-TE/GE.

If an agreement cannot be reached, both the statements of the taxpayer
and the EP or EO Examinations or EP or EO Determinations or appeals office
will be forwarded to EP or EO Technical with the request for technical
advice. When the disagreement involves material facts essential to the
preliminary assessment of the case, the EP or EO Examinations Area
manager, EP or EO Determinations manager or the Appeals Area Director,
SB/SE-TE/GE, may refuse to refer a taxpayer initiated request for
technical advice to EP or EO Technical.

If the EP or EO Examinations or the EP or EO Determinations or the
Appeals Area Director, SB/SE-TE/GE, submits a case involving a
disagreement of material facts, EP or EO Technical, at its discretion, may
refuse to provide technical advice. If EP or EO Technical chooses to issue
technical advice, it will base its advice on the facts provided by the EP
or EO Examinations or the EP or EO Determinations or the appeals office.



IF THE TAXPAYER HAS NOT SUBMITTED THE REQUIRED DELETIONS STATEMENT

.05 When the EP or EO Examinations or the EP or EO Determinations or
the appeals office initiates the request for technical advice, the
taxpayer has 10 calendar days after receiving the statement of facts and
issues to be submitted to EP or EO Technical to provide the deletions
statement required under section 6110 if public inspection is permitted
pursuant to section 6110 (see section 10.05 of this revenue procedure). In
such a case, if the taxpayer does not submit the deletions statement, the
EP or EO Examinations or the EP or EO Determinations or the appeals
office, will tell the taxpayer that the statement is required.

When the taxpayer initiates the request for technical advice and does
not submit with the request a deletions statement as required by section
6110, the EP or EO Examinations or the EP or EO Determinations or the
Appeals Area Director, SB/SE-TE/GE, will ask the taxpayer to submit the
statement. If the EP or EO Examinations or the EP or EO Determinations or
the Appeals Area Director, SB/SE-TE/GE, does not receive the deletions
statement within 10 calendar days after asking the taxpayer for it, the EP
or EO Examinations or the EP or EO Determinations or the Appeals Area
Director, SB/SE-TE/GE, may decline to submit the request for technical
advice.

However, if the EP or EO Examinations or the EP or EO Determinations or
the Appeals Area Director, SB/SE-TE/GE, decides to request technical
advice, whether initiated by the EP or EO Examinations or the EP or EO
Determinations or the appeals office or by the taxpayer, in a case in
which the taxpayer has not submitted the deletions statement, EP or EO
Technical will make those deletions that the Commissioner of Internal
Revenue determines are required by section 6110(c).


CRIMINAL OR CIVIL FRAUD CASES

.06 The provisions of this section (about referring issues upon the
taxpayer's request, obtaining the taxpayer's statement of the areas of
disagreement, telling the taxpayer about the referral of issues, giving
the taxpayer a copy of the arguments submitted, submitting proposed
deletions, and granting conferences in EP or EO Technical) do not apply to
a technical advice memorandum described in section 6110(g)(5)(A) that
involves a matter that is the subject of or is otherwise closely related
to a criminal or civil fraud investigation, or a jeopardy or termination
assessment.

In these cases, a copy of the technical advice memorandum is given to
the taxpayer after all proceedings in the investigations or assessments
are complete, but before the Service mails the notice of intention to
disclose the technical advice memorandum under section 6110(f)(1). The
taxpayer may then provide the statement of proposed deletions to EP or EO
Technical.


SECTION 12. HOW DOES A TAXPAYER APPEAL AN EP OR EO MANAGER'S OR AN APPEALS
AREA DIRECTOR'S DECISION NOT TO SEEK TECHNICAL ADVICE?

TAXPAYER NOTIFIED OF DECISION NOT TO SEEK TECHNICAL ADVICE

.01 If the EP or EO specialist's or the appeal's referral of an issue
to EP or EO Technical for technical advice does not warrant referral, the
EP or EO specialist or the appeals officer will tell the taxpayer. A
taxpayer's request for such a referral will not be denied merely because
EP or EO Technical provided legal advice, other than advice furnished
pursuant to this revenue procedure, to the EP or EO Examinations or EP or
EO Determinations or appeals office on the matter.


TAXPAYER MAY APPEAL DECISION NOT TO SEEK TECHNICAL ADVICE

.02 The taxpayer may appeal the decision of the EP or EO specialist or
the appeals officer not to request technical advice. To do so, the
taxpayer must submit to that specialist or officer, within 10 calendar
days after being told of the decision, a written statement of the facts,
law, and arguments on the issue and the reasons why the taxpayer believes
the matter should be referred to EP or EO Technical for technical advice.
A taxpayer who needs more than 10 calendar days must justify in writing
the request for an extension of time. The extension is subject to the
approval of the EP or EO Examinations Area manager or EP or EO
Determinations manager or the Appeals Area Director, SB/SE-TE/GE.


EP OR EO EXAMINATIONS AREA MANAGER OR EP OR EO DETERMINATIONS MANAGER
OR APPEALS AREA DIRECTOR, SB/SE-TE/GE, DETERMINES WHETHER TECHNICAL ADVICE
WILL BE SOUGHT

.03 The EP or EO specialist or the appeals officer submits the
taxpayer's statement through proper channels to the EP or EO Examinations
Area manager or the EP or EO Determinations manager or the Appeals Area
Director, SB/SE-TE/GE, along with the EP or EO specialist's or the appeals
officer's statement of why the issue should not be referred to EP or EO
Technical. The manager or director determines, on the basis of the
statements, whether technical advice will be requested.

If the manager or director determines that technical advice is not
warranted and proposes to deny the request, the taxpayer is told in
writing about the determination. In the letter to the taxpayer, the
manager or director states the reasons for the proposed denial (except in
unusual situations when doing so would be prejudicial to the best
interests of the Government). The taxpayer has 10 calendar days after
receiving the letter to notify the manager or director of agreement or
disagreement with the proposed denial.


MANAGER OR AREA DIRECTOR'S DECISION MAY BE REVIEWED BUT NOT APPEALED

.04 The taxpayer may not appeal the decision of the EP or EO
Examinations Area manager or the EP or EO Determinations manager or the
Appeals Area Director, SB/SE-TE/GE, not to request technical advice from
EP or EO Technical. However, if the taxpayer does not agree with the
proposed denial, all data on the issue for which technical advice has been
sought, including the taxpayer's written request and statements, will be
submitted to the Commissioner, Tax Exempt and Government Entities Division
or the Director, Appeals SB/SE-TE/GE Operating Unit as appropriate.

The Commissioner, Tax Exempt and Government Entities Division through
the Director, Employee Plans, or the Director, Exempt Organizations or, if
appropriate, the Chief, Appeals will review the proposed denial solely on
the basis of the written record, and no conference will be held with the
taxpayer or the taxpayer's representative. The appropriate Director or
Chief or his or her representative may consult with EP or EO Technical and
the Office of Chief Counsel, if necessary, and will notify the EP or EO
Examinations or the EP or EO Determinations or the area appeals office
within 45 calendar days of receiving all the data regarding the request
for technical advice whether the proposed denial is approved or
disapproved. The EP or EO Examinations or the EP or EO Determinations or
area appeals office will then notify the taxpayer.

While the matter is being reviewed, the EP or EO Examinations office or
the EP or EO Determinations office or the area appeals office suspends
action on the issue (except when the delay would prejudice the
Government's interest).

The provisions of this revenue procedure regarding review of the
proposed denial of a request for technical advice continue to be
applicable in those situations in which the authority normally exercised
by the EP or EO Examinations Area manager, the EP or EO Determinations
manager, or the Appeals Area Director, SB/SE-TE/GE, has been delegated to
another official.


SECTION 13. HOW ARE REQUESTS FOR TECHNICAL ADVICE WITHDRAWN?

TAXPAYER NOTIFIED

.01 Once a request for technical advice has been sent to EP or EO
Technical, only an EP or EO Examinations Area manager, an EP or EO
Determinations manager or an Appeals Area Director, SB/SE-TE/GE may
withdraw that request for technical advice. He or she may ask to withdraw
a request at any time before the responding transmittal memorandum
transmitting the technical advice is signed.

The EP or EO Examinations Area manager, the EP or EO Determinations
manager or the Appeals Area Director, SB/SE-TE/GE, as appropriate, must
notify the taxpayer in writing of an intent to withdraw the request for
technical advice except (1) when the period of limitations on assessment
is about to expire and the taxpayer has declined to sign a consent to
extend the period, or (2) when such notification would be prejudicial to
the best interests of the Government.

If the taxpayer does not agree that the request for technical advice
should be withdrawn, the procedures in section 12 of this revenue
procedure must be followed.


EP OR EO TECHNICAL MAY PROVIDE VIEWS

.02 When a request for technical advice is withdrawn, EP or EO
Technical may send its views to the EP or EO Examinations office or the EP
or EO Determinations office or the Appeals Area Director, SB/SE-TE/GE,
when acknowledging the withdrawal request. In an appeals case,
acknowledgment of the withdrawal request should be sent to the appropriate
appeals office, through the Director, Appeals LMSB Operations, C:AP:LMSB.
In appropriate cases, the subject matter may be published as a revenue
ruling or as a revenue procedure.


SECTION 14. HOW ARE CONFERENCES SCHEDULED?

IF REQUESTED, OFFERED TO THE TAXPAYER WHEN ADVERSE TECHNICAL ADVICE
PROPOSED

.01 If, after the technical advice request is analyzed, it appears that
technical advice adverse to the taxpayer will be given, and if a
conference has been requested, the taxpayer will be informed, by telephone
if possible, of the time and place of the conference.


NORMALLY HELD WITHIN 21 DAYS OF CONTACT WITH THE TAXPAYER

.02 The conference must be held within 21 calendar days after the
taxpayer is contacted. If conferences are being arranged for more than one
request for technical advice for the same taxpayer, they will be scheduled
to cause the least inconvenience to the taxpayer. If considered
appropriate, EP or EO Technical will notify the EP or EO specialist or the
appeals officer of the scheduled conference and will offer the EP or EO
specialist or the appeals officer the opportunity to attend the
conference. The Commissioner, Tax Exempt and Government Entities Division,
the Chief, Appeals, the EP or EO Examinations Area manager, the EP or EO
Determinations manager, or the Appeals Area Director, SB/SE-TE/GE may
designate other Service representatives to attend the conference in lieu
of, or in addition to, the EP or EO specialist or the appeals officer.


21-DAY PERIOD MAY BE EXTENDED IF JUSTIFIED AND APPROVED

.03 An extension of the 21-day period will be granted only if the
taxpayer justifies it in writing, and the group manager (or his or her
delegate) of the office to which the case is assigned approves it. No
extension will be granted without the approval of the group manager (or
his or her delegate). Except in rare and unusual circumstances, EP or EO
Technical will not agree to an extension of more than 10 working days
beyond the end of the 21-day period.

The request for an extension must be submitted before the end of the
21-day period, and should be submitted sufficiently before the end of this
period to allow EP or EO Technical to consider, and either approve or
deny, the request before the end of the 21-day period. If unusual
circumstances near the end of the period make a timely written request
impractical, EP or EO Technical should be told orally before the end of
the period about the problem and about the forthcoming written request for
an extension. The written request for an extension must be submitted to EP
or EO Technical promptly after the oral request. The taxpayer will be told
promptly (and later in writing) of the approval or denial of the requested
extension.


DENIAL OF EXTENSION CANNOT BE APPEALED

.04 There is no right to appeal the denial of a request for an
extension. If EP or EO Technical is not advised of problems with meeting
the 21-day period, or if the written request is not sent promptly after EP
or EO Technical is notified of problems with meeting the 21-day period,
the case will be processed on the basis of the existing record.


ENTITLED TO ONE CONFERENCE OF RIGHT

.05 A taxpayer is entitled by right to only one conference in EP or EO
Technical unless one of the circumstances discussed in section 14.09 of
this revenue procedure exists. This conference is normally held at the
group level in EP Technical or EO Technical, whichever is appropriate. It
is attended by a person who has authority to sign the transmittal
memorandum discussed in section 16.13 on behalf of the group manager.

When more than one group has taken an adverse position on an issue in
the request, or when the position ultimately adopted by one group will
affect another group's determination, a representative from each group
with authority to sign for the group manager will attend the conference.
If more than one subject is discussed at the conference, the discussion
constitutes the conference of right for each subject discussed.

To have a thorough and informed discussion of the issues, the
conference usually is held after the group has had an opportunity to study
the case. However, the taxpayer may request that the conference of right
be held earlier in the consideration of the case than the Service would
ordinarily designate.

The taxpayer has no right to appeal the action of a group to any other
Service official. But see section 14.09 for situations in which the
Service may offer additional conferences.


CONFERENCE MAY NOT BE TAPED

.06 Because conference procedures are informal, no tape, stenographic,
or other verbatim recording of a conference may be made by any party.


CONFERENCE MAY BE DELAYED TO ADDRESS A REQUEST FOR RELIEF UNDER SECTION
7805(b)

.07 In the event of a tentative adverse determination, the taxpayer may
request in writing a delay of the conference so that the taxpayer can
prepare and submit a brief requesting relief under section 7805(b)
(discussed in section 19 of this revenue procedure). The group manager (or
his or her delegate) of the office to which the case is assigned will
determine whether to grant or deny the request for delaying the
conference. If such request is granted, the Service will schedule a
conference on the tentatively adverse position and the section 7805(b)
relief request within 10 days of receiving the taxpayer's section 7805(b)
request. See section 19.06 of this revenue procedure for the conference
procedures if the section 7805(b) request is made after the conference on
the substantive issues has been held.


SERVICE MAKES TENTATIVE RECOMMENDATIONS

.08 The senior Service representative at the conference ensures that
the taxpayer has full opportunity to present views on all the issues in
question. The Service representatives explain the tentative decision on
the substantive issues and the reasons for it.

If the taxpayer requests relief under section 7805(b) (regarding
limitation of retroactive effect), the Service representatives will
discuss the tentative recommendation concerning the request for relief and
the reason for the tentative recommendation.

No commitment will be made as to the conclusion that the Service will
finally adopt regarding the outcome of the section 7805(b) issue or on any
other issue discussed.


ADDITIONAL CONFERENCES MAY BE OFFERED

.09 The Service will offer the taxpayer an additional conference if,
after the conference of right, an adverse holding is proposed on a new
issue or on the same issue but on grounds different from those discussed
at the first conference.

When a proposed holding is reversed at a higher level with a result
less favorable to the taxpayer, the taxpayer has no right to another
conference if the grounds or arguments on which the reversal is based were
discussed at the conference of right.

The limitation on the number of conferences to which a taxpayer is
entitled does not prevent EP or EO Technical from inviting a taxpayer to
attend additional conferences, including conferences with an official
higher than the group level, if EP or EO Technical personnel think they
are necessary. Such conferences are not offered as a matter of course
simply because the group has reached an adverse decision. In general,
conferences with higher level officials are offered only if the Service
determines that the case presents significant issues of tax policy or tax
administration and that the consideration of these issues would be
enhanced by additional conferences with the taxpayer.

In accordance with section 14.02 of this revenue procedure, the EP or
EO specialist or the appeals officer may be offered the opportunity to
participate in any additional taxpayer's conference, including a
conference with an official higher than the group level. Section 14.02 of
this revenue procedure also provides that other Service representatives
are allowed to participate in the conference.


ADDITIONAL INFORMATION SUBMITTED AFTER THE CONFERENCE

.10 Within 21 calendar days after the conference, the taxpayer must
furnish to EP or EO Technical, whichever is applicable, any additional
data, lines of reasoning, precedents, etc., that the taxpayer proposed and
discussed at the conference but did not previously or adequately present
in writing. This additional information must be submitted by letter with a
penalties of perjury statement in the form described in section 16.10 of
this revenue procedure.

The taxpayer must also send a copy of the additional information to the
EP or EO Examinations office or the EP or EO Determinations office or the
Appeals Area Director, SB/SE-TE/GE, for comment. Any comments must be
furnished promptly to the appropriate group in EP or EO Technical. If the
EP or EO Examinations office or the EP or EO Determinations office or the
Appeals Area Director, SB/SE-TE/GE, does not have any comments, he or she
must notify the group representative promptly.

If the additional information would have a significant impact on the
facts in the request for technical advice, EP or EO Technical will ask EP
or EO Examinations or EP or EO Determinations or the Appeals Area
Director, SB/SE-TE/GE, for comments on the facts contained in the
additional information submitted. The EP or EO Examinations office or the
EP or EO Determinations office or the Appeals Area Director, SB/SE-TE/GE,
will give the additional information prompt attention.

If the additional information is not received from the taxpayer within
21 calendar days, the technical advice memorandum will be issued on the
basis of the existing record.

An extension of the 21-day period may be granted only if the taxpayer
justifies it in writing, and the group manager (or his or her delegate) of
the office to which the case is assigned approves the extension. Such
extension will not be routinely granted. The procedures for requesting an
extension of the 21-day period and notifying the taxpayer of the
Services's decision are the same as those in sections 14.03 and 14.04 of
this revenue procedure.


UNDER LIMITED CIRCUMSTANCES, MAY SCHEDULE A CONFERENCE TO BE HELD BY
TELEPHONE

.11 Infrequently, taxpayers request that their conference of right be
held by telephone. This request may occur, for example, when a taxpayer
wants a conference of right but believes that the issue does not warrant
the expense of traveling to Washington, DC. If a taxpayer makes such a
request, the group manager, or his or her delegate of the group to which
the case is assigned, will decide if it is appropriate in the particular
case to hold the conference of right by telephone. If the request is
approved, the taxpayer will be advised when to call the Service
representatives (not a toll-free call).

In accordance with section 14.02 of this revenue procedure, the EP or
EO specialist or appeals officer will be offered the opportunity to
participate in the telephone conference. Section 14.02 of this revenue
procedure also provides that other Service representatives are allowed to
participate in the conference.


SECTION 15. HOW IS STATUS OF REQUEST OBTAINED?

TAXPAYER OR TAXPAYER'S REPRESENTATIVE MAY REQUEST STATUS FROM EP OR EO
EXAMINATIONS OR EP OR EO DETERMINATIONS OR APPEALS OFFICE

.01 The taxpayer or the taxpayer's representative may obtain
information on the status of the request for technical advice by
contacting the EP or EO Examinations office or the EP or EO Determinations
office or the appeals office that requested the technical advice. See
section 16.08 of this revenue procedure concerning the time for discussing
the tentative conclusion with the taxpayer's representative. See section
17.02 of this revenue procedure regarding discussions of the contents of
the technical advice memorandum with the taxpayer or the taxpayer's
representative.


EP OR EO TECHNICAL WILL GIVE STATUS UPDATES TO THE EP OR EO
EXAMINATIONS OR EP OR EO DETERMINATIONS OR APPEALS AREA DIRECTOR,
SB/SE-TE/GE

.02 The group representative or manager to whom the technical advice
request is assigned will give status updates on the request once a month
to the EP or EO Examination Area manager or the EP or EO Determinations
manager or the Appeals Area Director, SB/SE-TE/GE. In addition, an EP or
EO Examinations Area manager or an EP or EO Determinations manager or an
Appeals Area Director, SB/SE-TE/GE may get current information on the
status of the request for technical advice by calling the person whose
name and telephone number are shown on acknowledgment of receipt of the
request for technical advice.

See section 16.09 of this revenue procedure about discussing the final
conclusions with the EP or EO Examinations office or the EP or EO
Determinations office or the appeals office. Further, the EP or EO
Examinations office or the EP or EO Determinations office or the Appeals
Area Director, SB/SE-TE/GE will be notified at the time the technical
advice memorandum is mailed.


SECTION 16. HOW DOES EP OR EO TECHNICAL PREPARE THE TECHNICAL ADVICE
MEMORANDUM?

DELEGATES AUTHORITY TO GROUP MANAGERS

.01 The authority to issue technical advice on issues under the
jurisdiction of the Commissioner, Tax Exempt and Government Entities
Division has largely been delegated to the managers of the Employee Plans
Rulings & Agreements Technical and Actuarial groups, and the Technical
Guidance and Quality Assurance group (collectively referred to as "EP
Technical"); and of the Exempt Organizations Rulings & Agreements
Technical groups and the Technical Guidance and Quality Assurance group
(collectively referred to as "EO Technical")


DETERMINES WHETHER REQUEST HAS BEEN PROPERLY MADE

.02 A request for technical advice generally is given priority and
processed expeditiously. As soon as the request for technical advice is
assigned, the technical employee analyzes the file to see whether it meets
all of the requirements of sections 7, 8, and 10 of this revenue
procedure.

However, if the request does not comply with the requirements of
section 10.05 of this revenue procedure relating to the deletions
statement, the Service will follow the procedure in the last paragraph of
section 11.05 of this revenue procedure.


CONTACTS THE EP OR EO EXAMINATIONS OR EP OR EO DETERMINATIONS OR
APPEALS OFFICE TO DISCUSS ISSUES

.03 Usually, within 21 calendar days after the group receives the
request for technical advice, a representative of the group telephones the
EP or EO Examinations office or the EP or EO Determinations office or the
appeals office to discuss the procedural and substantive issues in the
request that come within the group's jurisdiction.



INFORMS THE EP OR EO EXAMINATIONS OR EP OR EO DETERMINATIONS OR APPEALS
OFFICE IF ANY MATTERS IN THE REQUEST HAVE BEEN REFERRED TO ANOTHER GROUP
OR OFFICE

.04 If the technical advice request concerns matters within the
jurisdiction of more than one group or office, a representative of the
group that received the original technical advice request generally
informs the EP or EO Examinations office or EP or EO Determinations office
or the appeals office within 21 calendar days of receiving the request
that--

(1) the matters within the jurisdiction of another group or office have
been referred to the other group or office for consideration, and

(2) a representative of the other group or office will contact the EP
or EO Examinations office or the EP or EO Determinations office or the
appeals office about the referral of the technical advice request within
21 calendar days after receiving it in accordance with section 16.03
above.


INFORMS THE EP OR EO EXAMINATIONS OR EP OR EO DETERMINATIONS OR APPEALS
OFFICE IF ADDITIONAL INFORMATION IS NEEDED

.05 The group representative will inform the EP or EO Examinations
office or the EP or EO Determinations office or the appeals office that
the case is being returned if substantial additional information is
required to resolve an issue. Cases should be returned for additional
information when significant unresolved factual variances exist between
the statement of facts submitted by the EP or EO Examinations office or
the EP or EO Determinations or the appeals office and the taxpayer. They
should also be returned if major procedural problems cannot be resolved by
telephone. The EP or EO Examinations office or the EP or EO Determinations
office or the appeals office should promptly notify the taxpayer of the
decision to return the case for further factual development or other
reasons.

If only minor procedural deficiencies exist, the group will request the
additional information in the most expeditious manner without returning
the case.


INFORMS THE EP OR EO EXAMINATIONS OR EP OR EO DETERMINATIONS OR APPEALS
OFFICE OF THE TENTATIVE CONCLUSION

.06 If all necessary information has been provided, the group
representative discusses with the EP or EO Examinations office or the EP
or EO Determinations office or the appeals office his or her tentative
conclusion.


IF A TENTATIVE CONCLUSION HAS NOT BEEN REACHED, GIVES DATE ESTIMATED
FOR TENTATIVE CONCLUSION

.07 If a tentative conclusion has not been reached because of the
complexity of the issue, the group representative informs the EP or EO
Examinations office or the EP or EO Determinations office or the appeals
office of the estimated date the tentative conclusion will be made.


ADVISES THE EP OR EO EXAMINATIONS OR EP OR EO DETERMINATIONS OR APPEALS
OFFICE THAT PRELIMINARY CONCLUSION NOT FINAL

.08 Because the group representative's tentative conclusion may change
during the preparation and review of the technical advice memorandum, the
tentative conclusion should not be considered final. Therefore, neither
the group representative nor the EP or EO Examinations office or the EP or
EO Determinations office or the appeals office should advise the taxpayer
or the taxpayer's representative of the tentative conclusion before the
scheduling of the adverse conference.


ADVISES THE EP OR EO EXAMINATIONS OR EP OR EO DETERMINATIONS OR APPEALS
OFFICE OF FINAL CONCLUSIONS

.09 In all cases, the group representative should inform the EP or EO
specialist or appeals officer of EP or EO Technical's final conclusions.
The EP or EO specialist or the appeals officer should be offered the
opportunity to discuss the issues and EP or EO Technical's final
conclusions before the technical advice memorandum is issued.


IF NEEDED, REQUESTS ADDITIONAL INFORMATION

.10 If, following the initial contact referenced in section 16.03 of
this revenue procedure, it is determined, after discussion with the
appropriate group manager or reviewer, that additional information is
needed, a group representative will obtain the additional information from
the taxpayer, the EP or EO Examinations office or the EP or EO
Determinations office or the Appeals Area Director, SB/SE-TE/GE, in the
most expeditious manner possible. Any additional information requested
from the taxpayer by EP or EO Technical must be submitted by letter with a
penalties of perjury statement within 21 calendar days after the request
for information is made.


Penalties of perjury statement

Additional information submitted to EP or EO Technical 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 the
information and such facts are true, correct, and complete." This
declaration must be signed and dated by the taxpayer, not the taxpayer's
representative. A stamped signature is not permitted.

A written request for an extension of time to submit additional
information must be received by EP or EO Technical within the 21-day
period, giving compelling facts and circumstances to justify the proposed
extension. The group manager (or his or her delegate) of the office to
which the case is assigned will determine whether to grant or deny the
request for an extension of the 21-day period. No extension will be
granted without the approval of the appropriate group manager (or his or
her delegate). Except in rare and unusual circumstances, EP or EO
Technical will not agree to an extension of more than 10 working days
beyond the end of the 21-day period. There is no right to appeal the
denial of a request for an extension.

If EP or EO Technical does not receive the additional information
within 21 calendar days, plus any extensions granted by the appropriate
group manager (or his or her delegate), EP or EO Technical will process
the technical advice memorandum based on the existing record.


REQUESTS TAXPAYER TO SEND ADDITIONAL INFORMATION TO THE EP OR EO
TECHNICAL AND A COPY TO THE EP OR EO EXAMINATIONS OR EP OR EO
DETERMINATIONS OR APPEALS AREA DIRECTOR, SB/SE-TE/GE

.11 Whether or not requested by the Service, any additional information
submitted by the taxpayer should be sent to the headquarters office.
Generally, the taxpayer needs only to submit the original of the
additional information to EP or EO Technical. However, in appropriate
cases, EP or EO Technical may request additional copies of the
information.

Also, the taxpayer must send a copy to either the EP or EO Examinations
office or the EP or EO Determinations office or the Appeals Area Director,
SB/SE-TE/GE, for comment. Any comments must be furnished promptly to the
appropriate group in EP or EO Technical. If the EP or EO Examinations
office or the EP or EO Determinations office or the Appeals Area Director,
SB/SE-TE/GE, does not have any comments, he or she must notify the group
representative promptly.


INFORMS THE TAXPAYER WHEN REQUESTED DELETIONS WILL NOT BE MADE

.12 Generally, before replying to the request for technical advice, EP
or EO Technical informs the taxpayer orally or in writing of the material
likely to appear in the technical advice memorandum that the taxpayer
proposed be deleted but that the Service has determined should not be
deleted.

If so informed, the taxpayer may submit within 10 calendar days any
further information or other arguments supporting the taxpayer's proposed
deletions.

The Service will attempt to resolve all disagreements about proposed
deletions before EP or EO Technical replies to the request for technical
advice. However, the taxpayer does not have the right to a conference to
resolve any disagreements about material to be deleted from the text of
the technical advice memorandum. These matters, however, may be considered
at any conference otherwise scheduled for the request.


PREPARES REPLY IN TWO PARTS

.13 EP or EO Technical's reply to a technical advice request is in two
parts. Each part identifies the taxpayer by name, address, identification
number, and year or years involved.

The first part of the reply is a transmittal memorandum. In unusual
cases, it is a way of giving the EP or EO Examinations office or the EP or
EO Determinations office or the appeals office administrative or other
information that under the nondisclosure statutes or for other reasons may
not be discussed with the taxpayer.

The second part is the technical advice memorandum, 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, and other precedents published in the Internal Revenue
Bulletin, and court decisions;

(4) a discussion of the rationale underlying the conclusions reached by
EP or EO Technical; and

(5) the conclusions of EP or EO Technical.


The conclusions give direct answers, whenever possible, to the specific
issues raised by the EP or EO Examinations office or the EP or EO
Determinations office or the appeals office. However, EP or EO Technical
is not bound by the precise statement of the issues as submitted by the
taxpayer or by the EP or EO Examinations office or the EP or EO
Determinations office or the appeals office and may reframe the issues to
be answered in the technical advice memorandum. The discussion of the
issues will be in sufficient detail so that the EP or EO Examinations or
EP or EO Determinations or appeals officials will understand the reasoning
underlying the conclusion.

Accompanying a technical advice memorandum subject to section 6110, is
a notice under section 6110(f)(1) of intention to disclose the technical
advice memorandum (including a copy of the version proposed to be open to
public inspection and notations of third party communications under
section 6110(d)).


ROUTES REPLIES TO APPROPRIATE OFFICE

.14 Replies to requests for technical advice from EO Examinations Area
managers and EO Determinations managers are addressed to:

Internal Revenue Service
Attn: EO Mandatory Review
MC 4920 DAL
1100 Commerce Street
Dallas, TX 75242


The EO Mandatory Review Staff will ensure that copies are forwarded to the
EO Examinations Area manager or the EO Determinations manager.

Replies to requests for technical advice (1) from EP Examinations Area
managers and (2) from EP Determinations managers that were sent to
Headquarters before Nov. 1, 2000, are addressed to:

Internal Revenue Service
Attn: EP Special Review -- Room 1550
T:EP:E:PR:SR:Technical Advice Coordinator
P.O. Box 13163
Baltimore, MD 21203


The EP Special Review Staff will ensure that copies are forwarded to the
applicable EP manager.

Replies to requests for technical advice from EP Determinations
managers sent to Headquarters after October 31, 2000, are addressed to:

Internal Revenue Service
Attn: EP Determinations Quality Assurance
P.O. Box 2508
Cincinnati, OH 45201


Replies to requests for technical advice from an Appeals Area Director,
SB/SE-TE/GE are routed to the appropriate appeals office through the
Director, Appeals LMSB Operations, C:AP:LMSB.


SECTION 17. HOW DOES AN EP OR EO EXAMINATIONS or EP OR EO DETERMINATIONS
OR AN APPEALS OFFICE USE THE TECHNICAL ADVICE?

GENERALLY APPLIES ADVICE IN PROCESSING THE TAXPAYER'S CASE

.01 The EP or EO Examinations Area manager or the EP or EO
Determinations manager or the Appeals Area Director, SB/SE-TE/GE, must
process the taxpayer's case on the basis of the conclusions in the
technical advice memorandum unless--

(1) the EP or EO Examinations Area manager or the EP or EO
Determinations manager or the Appeals Area Director, SB/SE-TE/GE, decides
that the conclusions reached by EP or EO Technical in a technical advice
memorandum should be reconsidered, or

(2) the Appeals Area Director, SB/SE-TE/GE, in the case of technical
advice unfavorable to the taxpayer, decides to settle the issue in the
usual manner under existing authority.


Subject to a request for reconsideration of the conclusions in a
technical advice memorandum, EP or EO Examinations or EP or EO
Determinations must follow the conclusions in a technical advice
memorandum as to all issues and the Appeals Area Director, SB/SE-TE/GE,
must follow the conclusions in a technical advice memorandum on issues of
an organization's/plan's status or qualification. Thus, if the technical
advice memorandum received by EP or EO Examinations or EP or EO
Determinations concerns an organization's/plan's status or qualification,
the organization/plan has no appeal to the appeals office on those
specific issues.


DISCUSSION WITH THE TAXPAYER

.02 EP or EO Technical will not discuss the contents of the technical
advice memorandum with the taxpayer or the taxpayer's representative until
the taxpayer has been given a copy by the EP or EO Examinations office or
the EP or EO Determinations office or the appeals office


GIVES COPY TO THE TAXPAYER

.03 The EP or EO Examinations office or the EP or EO Determinations
office or the Appeals Area Director, SB/SE-TE/GE, only after adopting the
technical advice, gives the taxpayer (1) a copy of the technical advice
memorandum described in section 16.13, and (2) the notice under section
6110(f)(1) of intention to disclose the technical advice memorandum
(including a copy of the version proposed to be open to public inspection
and notations of third party communications under section 6110(d)).

This requirement does not apply to a technical advice memorandum
involving a criminal or civil fraud investigation, or a jeopardy or
termination assessment, as described in section 11.06 of this revenue
procedure, or documents to which section 6104 (document open to public
inspection) applies as described in section 10.03.


TAXPAYER MAY PROTEST DELETIONS NOT MADE

.04 After receiving the notice under section 6110(f)(1) of intention to
disclose the technical advice memorandum, the taxpayer may protest the
disclosure of certain information in it. The taxpayer must submit a
written statement within 20 calendar days identifying those deletions not
made by the Service that the taxpayer believes should have been made. The
taxpayer must also submit a copy of the version of the technical advice
memorandum proposed to be open to public inspection with brackets around
deletions proposed by the taxpayer that have not been made by EP or EO
Technical.

Generally, EP or EO Technical considers only the deletion of material
that the taxpayer has proposed be deleted or other deletions as required
under section 6110(c) before the EP or EO Technical reply is sent to the
EP or EO Examinations office or the EP or EO Determinations office or the
Appeals Area Director, SB/SE-TE/GE. Within 20 calendar days after it
receives the taxpayer's response to the notice under section 6110(f)(1),
EP or EO Technical must mail the taxpayer its final administrative
conclusion about the deletions to be made.


WHEN NO COPY IS GIVEN TO THE TAXPAYER

.05 If EP or EO Technical tells the EP or EO Examinations office or the
EP or EO Determinations office or the Appeals Area Director, SB/SE-TE/GE,
that a copy of the technical advice memorandum should not be given to the
taxpayer and the taxpayer requests a copy, the EP or EO Examinations
office or the EP or EO Determinations office or the Appeals Area Director,
SB/SE-TE/GE, will tell the taxpayer that no copy will be given.


SECTION 18. WHAT IS THE EFFECT OF TECHNICAL ADVICE?

APPLIES ONLY TO THE TAXPAYER FOR WHOM TECHNICAL ADVICE WAS REQUESTED

.01 A taxpayer may not rely on a technical advice memorandum issued by
the Service for another taxpayer.


USUALLY APPLIES RETROACTIVELY

.02 Except when stated otherwise, a holding in a technical advice
memorandum is applied retroactively, unless the Commissioner, Tax Exempt
and Government Entities Division exercises discretionary authority under
section 7805(b) to limit the retroactive effect of the holding. Section
18.06 below lists the criteria necessary for granting section 7805(b)
relief, and section 18 of this revenue procedure describes the effect of
section 7805(b) relief.


GENERALLY APPLIED RETROACTIVELY TO MODIFY OR REVOKE PRIOR TECHNICAL
ADVICE

.03 A holding that modifies or revokes a holding in a prior technical
advice memorandum is applied retroactively, with one exception. If the new
holding is less favorable to the taxpayer than the earlier one, it
generally is not applied to the period when the taxpayer relied on the
prior holding in situations involving continuing transactions.


APPLIES TO CONTINUING ACTION OR SERIES OF ACTIONS UNTIL SPECIFICALLY
WITHDRAWN, MODIFIED, OR REVOKED

.04 If a technical advice memorandum relates to a continuing action or
a series of actions, ordinarily it is applied until specifically withdrawn
or until the conclusion is modified or revoked by enactment of
legislation, ratification of a tax treaty, a decision of the United States
Supreme Court, or the issuance of regulations (temporary or final), a
revenue ruling, or other statement published in the Internal Revenue
Bulletin. Publication of a notice of proposed rulemaking does not affect
the application of a technical advice memorandum.


APPLIES TO CONTINUING ACTION OR SERIES OF ACTIONS UNTIL MATERIAL FACTS
CHANGE

.05 A taxpayer is not protected against retroactive modification or
revocation of a technical advice memorandum involving a continuing action
or a series of actions occurring after the material facts on which the
technical advice memorandum is based have changed.


DOES NOT APPLY RETROACTIVELY UNDER CERTAIN CONDITIONS

.06 Generally, a technical advice memorandum that modifies or revokes a
letter ruling or another technical advice memorandum or a determination
letter is not applied retroactively either to the taxpayer to whom or for
whom the letter ruling or technical advice memorandum or determination
letter was originally issued, or to a taxpayer whose tax liability was
directly involved in such letter ruling or technical advice memorandum or
determination letter if--

(1) there has been no misstatement or omission of material facts;

(2) the facts at the time of the transaction are not materially
different from the facts on which the letter ruling or technical advice
memorandum or determination letter was based;

(3) there has been no change in the applicable law;

(4) in the case of a letter ruling, it was originally issued on a
prospective or proposed transaction; and

(5) the taxpayer directly involved in the letter ruling or technical
advice memorandum or determination letter acted in good faith in relying
on the letter ruling or technical advice memorandum or determination
letter, and the retroactive modification or revocation would be to the
taxpayer's detriment. For example, the tax liability of each employee
covered by a letter ruling or technical advice memorandum or determination
letter relating to a pension plan of an employer is directly involved in
the letter ruling or technical advice memorandum or determination letter.
However, the tax liability of members of an industry is not directly
involved in a letter ruling or technical advice memorandum or
determination letter issued to one of the members, and the holding in a
modification or revocation of a letter ruling or technical advice
memorandum or determination letter to one member of an industry may be
retroactively applied to other members of the industry. By the same
reasoning, a tax practitioner may not obtain the nonretroactive
application to one client of a modification or revocation of a letter
ruling or technical advice memorandum or determination letter previously
issued to another client.

When a letter ruling or determination letter to a taxpayer or a
technical advice memorandum involving a taxpayer is modified or revoked
with retroactive effect, the notice to the taxpayer, except in fraud
cases, sets forth the grounds on which the modification or revocation is
being made and the reason why the modification or revocation is being
applied retroactively.

In order for a technical advice memorandum that modifies or revokes a
letter ruling or another technical advice memorandum or a determination
letter not to be applied retroactively either to the taxpayer to whom or
for whom the letter ruling, technical advice memorandum or determination
letter was originally issued, or to a taxpayer whose tax liability was
directly involved in such letter ruling, technical advice memorandum or
determination letter, such taxpayer generally must request relief under
section 7805(b) in the manner described in section 19 below.


SECTION 19. HOW MAY RETROACTIVE EFFECT BE LIMITED?

COMMISSIONER HAS DISCRETIONARY AUTHORITY UNDER SECTION 7805(b)

.01 Under section 7805(b) the Commissioner or the Commissioner's
delegate has the discretion to prescribe the extent, if any, to which a
technical advice memorandum will be applied without retroactive effect.


TAXPAYER MAY REQUEST COMMISSIONER TO EXERCISE AUTHORITY

.02 A taxpayer who has received a technical advice memorandum or for
whom a technical advice request is pending may request that the
Commissioner, Tax Exempt and Government Entities Division, the
Commissioner of Internal Revenue's delegate, exercise the discretionary
authority under section 7805(b) to limit the retroactive effect of any
holding stated in the technical advice memorandum or to limit the
retroactive effect of any subsequent modification or revocation of the
technical advice memorandum.


FORM OF REQUEST TO LIMIT RETROACTIVITY -- BEFORE AN EXAMINATION

.03 When a technical advice memorandum that concerns a continuing
transaction is modified or revoked by, for example, a subsequent revenue
ruling or final regulations, a request to limit the retroactive effect of
the modification or revocation of the technical advice memorandum must be
made in the form of a request for a letter ruling if submitted before
examination of the return that contains the transaction that is the
subject of the request for the letter ruling. See Rev. Proc. 2002-4.


FORM OF REQUEST TO LIMIT RETROACTIVITY -- DURING COURSE OF AN
EXAMINATION

.04 When, during the course of an examination of a taxpayer's return by
EP or EO Examinations or consideration by the Appeals Area Director,
SB/SE-TE/GE, a taxpayer is informed that EP or EO Examinations or the
Appeals Area Director, SB/SE-TE/GE, recommends that a technical advice
memorandum be modified or revoked, a request to limit the retroactive
application of the modification or revocation of the technical advice
memorandum must itself be made in the form of a request for technical
advice. See sections 7, 8 and 10 of this revenue procedure and sections
19.07 and 19.08 below.

The taxpayer must also submit a statement that the request is being
made pursuant to section 7805(b). This statement must also indicate the
relief requested and give the reasons and arguments in support of the
relief requested. It must also be accompanied by any documents bearing on
the request. The explanation should discuss the five items listed in
section 18.06 of this revenue procedure as they relate to the taxpayer's
situation.

The taxpayer's request, including the statement that the request is
being made pursuant to section 7805(b), must be forwarded by EP or EO
Examinations or the Appeals Area Director, SB/SE-TE/GE, to EP or EO
Technical for consideration.


FORM OF REQUEST TO LIMIT RETROACTIVITY -- TECHNICAL ADVICE THAT DOES
NOT MODIFY OR REVOKE PRIOR MEMORANDUM

.05 A request to limit the retroactive effect of a holding in a
technical advice memorandum that does not modify or revoke a technical
advice memorandum may be made as part of that technical advice request,
either initially, or at any time before the technical advice memorandum is
issued by EP or EO Technical. In such a case, the taxpayer must also
submit a statement in support of the application of section 7805(b), as
described in section 19.04 above.



TAXPAYER'S RIGHT TO A CONFERENCE

.06 When a request for technical advice concerns only the application
of section 7805(b), the taxpayer has the right to a conference in EP or EO
Technical in accordance with the provisions of section 14 of this revenue
procedure.

If the request for application of section 7805(b) is included in the
request for technical advice on the substantive issues or is made before
the conference of right on the substantive issues, the section 7805(b)
issues will be discussed at the taxpayer's one conference of right.

If the request for the application of section 7805(b) is made as part
of a pending technical advice request after a conference has been held on
the substantive issues, and the Service determines that there is
justification for having delayed the request, then the taxpayer will have
the right to one conference of right concerning the application of section
7805(b), with the conference limited to discussion of this issue.


EXHAUSTION OF ADMINISTRATIVE REMEDIES -- EMPLOYEE PLANS DETERMINATION
LETTER REQUESTS

.07 Where the applicant has requested EP Determinations to seek
technical advice on the applicability of section 7805(b) relief to a
qualification issue under section 401(a) pursuant to a determination
letter request, the applicant's administrative remedies will not be
considered exhausted until EP Technical has a reasonable time to act on
the request for technical advice. (See section 20 of Rev. Proc. 2002-6.)


EXHAUSTION OF ADMINISTRATIVE REMEDIES -- EXEMPT ORGANIZATION MATTERS

.08 Where technical advice has been requested pursuant to an exempt
organization's request for section 7805(b) relief from the retroactive
application of an adverse determination within the meaning of section
7428(a)(1), the exempt organization's administrative remedies will not be
considered exhausted, within the meaning of section 7428(b)(2), until EO
Technical has a reasonable time to act on the request for technical
advice.


SECTION 20. WHAT IS THE EFFECT OF THIS REVENUE PROCEDURE ON OTHER
DOCUMENTS?

Rev. Proc. 2001-5 is superseded.


SECTION 21. EFFECTIVE DATE

This revenue procedure is effective January 7, 2002.


SECTION 22. PAPERWORK REDUCTION ACT

The collections of information contained in this revenue procedure have
been reviewed and approved by the Office of Management and Budget in
accordance with the Paperwork Reduction Act (44 U.S.C. section 3507) under
control number 1545-1520.

An agency may not conduct or sponsor, and a person is not required to
respond to, a collection of information unless the collection of
information displays a valid control number.

The collections of information in this revenue procedure are in
sections 6.03, 9, 10.01, 10.02, 11.03, 11.04, 11.05, 12.02, 12.03, 13.01,
14.03, 14.10, 16.10, 16.12, 17.04, 19.03, 19.04, and 19.05. This
information is required to evaluate and process the request for a
technical advice memorandum. In addition, this information will be used to
help the Service delete certain information from the text of the technical
advice memorandum before it is made available for public inspection, as
required by section 6110. The collections of information are required to
obtain a technical advice memorandum. The likely respondents are
businesses or other for-profit institutions and not-for-profit
institutions.

The estimated total annual reporting and/or recordkeeping burden is
1,950 hours.

The estimated annual burden per respondent/recordkeeper varies from 4
hours to 60 hours, depending on individual circumstances, with an
estimated average of 19.5 hours. The estimated number of respondents
and/or recordkeepers is 100.

The estimated annual frequency of responses is one request per
applicant.

Books or records relating to a collection of information must be
retained as long as their contents may become material in the
administration of any internal revenue law. Generally, tax returns and tax
return information are confidential, as required by section 6103.


DRAFTING INFORMATION

The principal author of this revenue procedure is Michael Rubin of the
Employee Plans, Tax Exempt and Government Entities Division. For further
information regarding how this revenue procedure applies to employee plans
matters, please contact the Employee Plans Customer Assistance Service at
1-877-829-5500 (a toll-free number) or Mr. Rubin at (202) 283-9888 (not a
toll-free number). For exempt organizations matters, please contact Mr.
Wayne Hardesty at (202) 283-8976 (not a toll-free number).


INDEX

References are to sections in Rev. Proc. 2002-5

ADDITIONAL INFORMATION
-- procedure for submission sections 16.02, 16.05, 16.10
after conference section 14.10
-- proposed deletions under section
6110 section 10.05

CHIEF COUNSEL
-- jurisdiction section 5.01

CONFERENCES
-- offered sections 11.02, 14.01, 14.09
exceptions sections 11.06, 12.04, 16.12
-- pre-submission section 9
-- scheduling section 14
request to limit retroactivity sections 14.07, 14.08, 19.06
telephone conferences section 14.11

DEFINITION
-- technical advice section 3

EXTENSION OF TIME
-- to appeal decision not to request
technical advice section 12.02
-- to disagree with statement of facts sections 11.03, 11.04
-- to schedule conference sections 14.03, 14.05
-- to submit additional information sections 14.10, 16.10

FARMERS' COOPERATIVES sections 4.02, 5.01

LETTER RULING section 18.06

MANDATORY TECHNICAL ADVICE sections 4.04, 7.01

PAPERWORK REDUCTION ACT section 22

PERJURY STATEMENT sections 14.10, 16.10

POWER OF ATTORNEY section 10.08

PUBLIC DISCLOSURE UNDER SECTION 6110
-- deletion statement required section 10.05
exception when section 6104
applies section 10.04
failure to submit section 11.05
-- notice of intention to disclose section 17.03
protesting deletions not made sections 16.12, 17.04

REPRESENTATIVES sections 14.08, 16.10

RETROACTIVE EFFECT
-- in general sections 18.02-.06
on letter ruling section 18.06
-- request to limit retroactivity section 19
employee plans determination
letters section 19.07
exempt organization matters section 19.08
format of request sections 19.03, 19.04
scheduling conference sections 14.07, 14.09, 19.06

REVENUE RULINGS
-- effect on continuing transaction sections 18.04, 18.05
request to limit retroactivity sections 19.01-.05

SECTION 301.9100-1 RELIEF section 6

STATUS OF TECHNICAL ADVICE REQUEST
-- to EP or EO Examinations Area or EP
or EO Determinations or appeals
office section 15.02
-- to taxpayer section 15.01

WHERE TO SEND
-- additional information section 16.11
-- technical advice request from
appeals office section 10.06
-- technical advice request from EP or
EO Examinations or EP or EO
Determinations section 10.06

WITHDRAWAL OF TECHNICAL ADVICE REQUEST section 13

<<END RULING>>



 

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