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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,
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