SECTION 10. WHAT MUST BE Statement of issues, facts, law, and arguments .01 Whether initiated by the taxpayer or by an EP or EO Examinations or an EP or EO Determinations 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; tions, revenue rulings, revenue procedures, notices, or any other authority support ing the taxpayer's position; and 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. a 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 $$ 6104 and 6110 .03 Generally, $ 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 401(a) or § 403(a) or an individual retirement arrangement under $ 408(a) or § 408(b) will be open to public inspection pursuant to regulations as will (2) any application filed for an exemption from tax under $ 501(a) of an organization forming part of a plan or account described above. Generally, § 6110(a) provides that except as provided otherwise, written determinations (defined in g 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 $ 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 § 6104 applies. Statement identifying information to be deleted from public inspection .05 The text of a technical advice memorandum subject to $ 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 $ 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 $ 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. 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. 2003–4, 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 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 $ 6110 if public inspection is permitted pursuant to $ 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 $ 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 $ 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 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 $ 6110(f)(1). The taxpayer may then provide the statement of proposed deletions to EP or EO Technical. SECTION 12. HOW DOES A Taxpayer notified of decision not to seek technical advice .01 If the EP or EO specialist's or the appeals officer'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 .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 chief determines, on the basis of the statements, whether technical advice will be requested. If the manager or chief 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 chief 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 chief 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/SETE/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. |