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Advises the field or area office if tentative conclusion is changed

.08 Because the branch representative's tentative conclusion may change during the preparation and review of the TAM or TEAM, the tentative conclusion should not be considered final. If the tentative conclusion is changed, the branch representative will inform the field or area office.

Generally does not discuss the tentative conclusion with the taxpayer

.09 Neither the national office nor the field or area office should advise the taxpayer or the taxpayer's representative of the tentative conclusion during consideration of the request for a TAM or a TEAM. In order to afford taxpayers an appropriate opportunity to prepare and present their position, the taxpayer or the taxpayer's representative should be told the tentative conclusion when scheduling the adverse conference, at the adverse conference, or in any discussion between the scheduling and commencement of the adverse conference. See section 22.02 of this revenue procedure regarding discussions of the contents of the TAM or TEAM with the taxpayer or the taxpayer's representative.

Advises the field or area office of final conclusions

.10 In all cases, the branch representative will inform the examining officer or appeals officer of the national office's final conclusions. The examining officer or appeals officer will be offered the opportunity to discuss the issues and the national office's final conclusions before the TAM or TEAM is issued.

If needed, requests additional information

.11 If, following the initial contact referenced in section 21.03 of this revenue procedure, it is determined, after discussion with the branch chief or other reviewer, that additional information is needed, a branch representative will obtain the additional information from the taxpayer or from the director or the area director, appeals in the most expeditious manner possible. In the case of a TAM, any additional information requested from the taxpayer by the national office must be submitted by letter with a penalties of perjury statement within 21 calendar days after the request for information is made. In the case of a TEAM, any additional information requested from the taxpayer by the national office must be submitted by letter with a penalties of perjury statement within 5 calendar days after the request for information is made.

(1) Request to receive a request for additional information by fax. To facilitate prompt action on TAM and TEAM requests, the taxpayer is encouraged to request that if the Service requests additional information from the taxpayer, the Service does so by fax.

A request to fax a copy of the request for additional information to the taxpayer or the taxpayer's authorized representative must be made in writing, either as part of the original TAM or TEAM request or prior to the mailing of the request for additional information. The request to fax must contain the fax number of the taxpayer or the taxpayer's authorized representative to whom the document is to be faxed.

Because of the unsecured nature of a fax transmission, the Service will take certain precautions to protect confidential information. For example, the Service will use a cover sheet that identifies the intended recipient of the fax and the number of pages transmitted, that does not identify the taxpayer by name or identifying number, and that contains a statement prohibiting unauthorized disclosure of the document if a recipient of the faxed document is not the intended recipient of the fax. Also, for example, the cover sheet should be faxed in an order in which it will become the first page covering the faxed document.

(2) Penalties of perjury statement. Additional information submitted to the national office 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.

(3) 21-day period for TAMS (5-day period for TEAMs) will be extended if justified and approved. A written request for an extension of time to submit additional information must be received by the national office within the 21-day period for TAMs (5-day period for TEAMs), giving compelling facts and circumstances to justify the proposed extension. The associate chief counsel of the office to which the case is assigned will determine whether

Sec. 21.08

to grant or deny the request for an extension. No extension will be granted without the approval of the associate chief counsel. Except in rare and unusual circumstances, the national office will not agree to an extension of more than 10 working days beyond the end of the 21-day period in the case of a TAM (5-day period in the case of a TEAM). There is no right to appeal the denial of a request for extension.

(4) If the taxpayer does not submit additional information. If the national office does not receive the additional information within the 21-day period for TAMs (5-day period for TEAMs), plus any extensions granted by the associate chief counsel, the national office will issue the TAM or the TEAM based on the existing record.

Requests taxpayer to send additional information to the national office and a copy to the director or area director, appeals

.12 Whether or not requested by the Service, any additional information submitted by the taxpayer should be sent to the national office. Generally, the taxpayer needs only to submit the original of the additional information to the national office. In appropriate cases, the national office may request additional copies of the information.

Also, the taxpayer must send a copy of the additional information to the director or the area director, appeals for comment. Any comments by the director or the area director, appeals must be furnished promptly to the appropriate branch in the national office. If the director or the area director, appeals does not have any comments, he or she must notify the branch representative promptly.

Informs the taxpayer when requested deletions will not be made

.13 Generally, before replying to the request for a TAM or a TEAM, the national office informs the taxpayer orally or in writing of the material likely to appear in the TAM or TEAM 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 arguments supporting the taxpayer's proposed deletions.

The Service attempts, if possible, to resolve all disagreements about proposed deletions before the national office replies to the request for a TAM or a TEAM. The taxpayer does not have the right to a conference to resolve any disagreements about material to be deleted from the text of the TAM or the TEAM. These matters may be considered at any conference otherwise scheduled for the request. See section 23.04 of this revenue procedure for the procedures to protest the disclosure of information in the TAM or the TEAM.

Prepares reply in two parts

.14 The replies to TAM or TEAM requests are 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 (Form M–6000). In unusual cases, it is a way of giving the field or area office strategic advice that need not be discussed with the taxpayer. If the transmittal memorandum provides more than the fact that the TAM or the TEAM is attached or the case is returned for further development, the transmittal memorandum may constitute Chief Counsel Advice, as defined in $ 6110(i)(1), subject to public inspection under $ 6110.

The second part is the TAM or the TEAM, which contains

(1) a statement of the issues;

(2) the conclusions of the national office;

(3) a statement of the facts pertinent to the issues;

(4) a statement of the pertinent law, tax treaties, regulations, revenue rulings, and other precedents published in the Internal Revenue Bulletin, and court decisions; and

(5) a discussion of the rationale supporting the conclusions reached by the national office.

Sec. 21.14 The conclusions give direct answers, whenever possible, to the specific issues raised by the field or area office. The national office is not bound by the precise statement of the issues as submitted by the taxpayer or by the field or area office and may reframe the issues to be answered in a TAM or a TEAM. The discussion of the issues in a TAM or a TEAM will be in sufficient detail so that the field or appeals officials will understand the reasoning underlying the conclusion.

If two sets of facts are provided to the national office (i.e., the parties were unable to reach agreement on the facts), the following procedure will be used: If the national office would rule the same way on either set of facts, a TAM or a TEAM will be issued, which will note that the factual disagreement is immaterial. If the national office would rule differently based on which specific set of facts is considered, then a TAM or a TEAM will be issued describing the resolution of the issue based on each set of facts.

As discussed in section 22.01 of this revenue procedure, if a TAM or a TEAM provides alternate responses based on separate sets of facts, the field is required to process the case consistently with the legal analysis in the TAM or the TEAM as applied to the facts as they are ultimately determined by the field or area office.

Accompanying the TAM or the TEAM is a notice under $ 6110(f)(1) of intention to dis

a close a TAM or a TEAM (including a copy of the version proposed to be open to public inspection and notations of third party communications under $ 6110(d)).

a

Routes replies to appropriate office

.15 Replies to requests for a TAM or a TEAM are addressed to the director (see paragraph 2(1) of this revenue procedure) or the area director, appeals (see paragraph 2(2) of this revenue procedure). A copy of the reply to a request from LMSB should be mailed simultaneously to the field personnel who requested it under the signature authority of the director. Replies to requests from appeals should be routed to the appropriate area office through the Director, Appeals Field Technical Services, C:AP.

Sends a copy of reply to appropriate division counsel

.16 The national office will send a copy of the reply to the request for a TAM or a TEAM to the division counsel of the operating division that has jurisdiction over the taxpayer's tax return that is the subject of the TAM or the TEAM.

SECTION 22. HOW DOES A
FIELD OR AREA OFFICE USE
THE TAM OR THE TEAM?

Generally applies advice in processing the taxpayer's case

.01 The director or the area director, appeals must process the taxpayer's case on the basis of the conclusions in the TAM or TEAM unless

a

(1) the director or the area director, appeals decides that the conclusions reached by the national office in a TAM or TEAM should be reconsidered and requests reconsideration. The reconsideration process may include a conference held by the field participants who requested a TAM or a TEAM and the national office participants who drafted the memorandum; or

a

(2) in the case of a TAM or a TEAM unfavorable to the taxpayer, the area director, appeals decides to settle the issue under existing authority; or

(3) in the case of a TAM or a TEAM unfavorable to a Coordinated Industry Case taxpayer on a coordinated issue within the Office of Pre-Filing and Technical Guidance, LMSB, on which Appeals has approved settlement guidelines, the team manager decides to settle the issue under the settlement authority delegated in Delegation Order No. 247 (or its successor), 1996–1 C.B. 356; or

(4) if a TAM or a TEAM provides alternate responses based on separate sets of facts, the field is required to process the case consistently with the legal analysis in the TAM or the TEAM as applied to the facts as they are ultimately determined by the field or area office.

Sec. 21.14

Except as provided in paragraphs (1), (2), (3), or (4) of this section 22.01, the conclusions in a TAM or a TEAM involving a § 103 obligation and the issuer of this obligation must be treated by the director or the area director, appeals as applying to the issuer and any holder of the obligation, unless the holder initiates a request for a TAM or a TEAM on the same issue addressed in the TAM or TEAM involving the issuer, and the national office issues a TAM or TEAM involving that issue and that holder.

a

Discussion with the taxpayer

.02 The national office will not discuss the contents of the TAM or TEAM with the taxpayer or the taxpayer's representative until the taxpayer has been given a copy of the TAM or TEAM by the field or area office. See section 21.09 of this revenue procedure concerning the time for discussing the tentative conclusion with the taxpayer or the taxpayer's rep resentative.

Provides copy to the taxpayer

.03 The director or the area director, appeals only after adopting the TAM or the TEAM, gives the taxpayer

(1) a copy of the TAM or TEAM described in section 21.14 of this revenue procedure; and

(2) the notice under $ 6110(f)(1) of intention to disclose the TAM or TEAM (including a copy of the version proposed to be open to public inspection and notations of third party communications under $ 6110(d)).

The director or area director, appeals has 30 calendar days after receipt of a TAM to either formally request reconsideration or give the adopted TAM to the taxpayer. The director or appeals officer must notify the national office when the TAM is given to the taxpayer. This requirement does not apply to a TAM involving a criminal or civil fraud investigation, or a jeopardy or termination assessment, as described in section 14.08 of this revenue procedure.

The field will have 30 calendar days from issuance of a TEAM to request reconsideration or the TEAM becomes final and will be released to the taxpayer, as is provided in this section of this revenue procedure. The request for reconsideration from the field must come from the director or area director, appeals. The request for reconsideration must describe with specificity the errors in the TEAM analysis and conclusions. Requests for reconsideration should not reargue points raised in the initial request, but should instead focus on points that the TEAM overlooked or misconstrued in the field's arguments in support of their request.

The national office will consider the field's request for reconsideration of a TEAM and rule on that request within 30 calendar days of receipt. The national office may request further submissions from the field or the taxpayer, but no additional submissions shall be made in the absence of such a request. If the field does not request reconsideration of a TEAM, the TEAM will take effect at the end of the 30-day period following the issuance of the TEAM to the field. If reconsideration is requested, the TEAM will take effect 5 calendar days after the reconsideration is ruled on.

a

In the event of a TAM or a TEAM adverse to the taxpayer, in whole or in part, the taxpayer may request $ 7805(b) relief. Such a request will be treated as a separate request for a TAM or a TEAM.

Taxpayer may protest deletions not made

.04 After receiving the notice under § 6110(f)(1) of intention to disclose the TAM or TEAM, 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 TAM or TEAM proposed to be open to public inspection with brackets around the deletions proposed by the taxpayer that have not been made by the national office.

Generally, the national office considers only the deletion of material that the taxpayer has proposed be deleted or other deletions as required under $ 6110(c) before the national office reply is sent to the director or the area director, appeals. Within 20 calendar days after

Sec. 22.04

it receives the taxpayer's response to the notice under $ 6110(f)(1), the national office must mail to the taxpayer its final administrative conclusion about the deletions to be made.

When no copy is given to the taxpayer

.05 If the national office tells the director or the area director, appeals that a copy of the TAM or TEAM should not be given to the taxpayer and the taxpayer requests a copy, the director or the area director, appeals will tell the taxpayer that no copy will be given.

SECTION 23. WHAT IS THE
EFFECT OF A TAM OR A
TEAM?

Applies only to the taxpayer for whom TAM or TEAM was requested

.01 A taxpayer may not rely on a TAM or a TEAM issued by the Service for another taxpayer. See § 6110(k)(3).

Usually applies retroactively

.02 Except in rare or unusual circumstances, a holding in a TAM or a TEAM that is favorable to the taxpayer is applied retroactively.

Moreover, because a TAM or a TEAM, as described in section 3 of this revenue procedure, is issued only on closed transactions, a holding that is adverse to the taxpayer is also applied retroactively, unless the Associate Chief Counsel (Corporate), the Associate Chief Counsel (Financial Institutions and Products), the Associate Chief Counsel (Income Tax and Accounting), the Associate Chief Counsel (International), the Associate Chief Counsel (Passthroughs and Special Industries), the Associate Chief Counsel (Procedure and Administration), or the Division Counsel/Associate Chief Counsel (Tax Exempt and Government Entities), as appropriate, exercises the discretionary authority under $ 7805(b) to limit the retroactive effect of the holding.

Generally applied retroactively to modify or revoke prior TAM or TEAM

.03 A holding that modifies or revokes a holding in a prior TAM or TEAM 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 TAM or a TEAM 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 the enactment of legislation, the 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 TAM or a TEAM.

.

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 TAM or a TEAM involving a continuing action or a series of actions occurring after the material facts on which the TAM or TEAM is based have changed.

Does not apply retroactively under certain conditions

.06 A TAM or TEAM revoking or modifying a letter ruling, TAM or TEAM will be applied retroactively to the taxpayer for whom the letter ruling was issued or to a taxpayer whoso tax liability was directly involved in the letter ruling if—

(1) there has been a misstatement or omission of controlling facts; or

(2) the facts at the time of the transaction are materially different from the controlling facts on which the letter ruling, TAM or TEAM was based.

Generally, in all other circumstances, a TAM or TEAM revoking or modifying a letter ruling or another TAM or TEAM will not be applied retroactively to the taxpayer for whom the letter ruling, TAM or TEAM was issued or to a taxpayer whose tax liability was directly involved in the letter ruling, TAM or TEAM, provided that

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

Sec. 22.04

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