SECTION 15. HOW DOES

THE NATIONAL OFFICE PREPARE THE TECHNICAL ADVICE MEMORANDUM?

Delegates authority to .01 The authority to issue technical advice on issues under the jurisdiction of the branch chiefs Associate Chief Counsel (Domestic) has largely been delegated to the branch chiefs in the offices of the Assistant Chief Counsel (Corporate), the Assistant Chief Counsel (Financial Institutions and Products), the Assistant Chief Counsel (Income Tax and Accounting), and the Assistant Chief Counsel (Passthroughs and Special Industries).

The branch chiefs in the Office of Associate Chief Counsel (Employee Benefits and Exempt Organizations) and in the Office of Associate Chief Counsel (International) have largely been delegated the authority to issue technical advice on issues under their jurisdiction.

The authority to issue technical advice on issues under the jurisdiction of the Associate Chief Counsel (Enforcement Litigation) has largely been delegated to the branch chiefs in the office of the Assistant Chief Counsel (General Litigation).

Determines whether request .02 A request for technical advice generally is given priority and processed expediiously. has been properly made As soon as the request for technical advice is assigned, the branch representative analyzes the file to see whether it meets all requirements of sections 6, 7, and 9 of this revenue procedure.

However, if the request does not comply with the requirements of section 9.02 of this revenue procedure relating to the deletions statement, the Service will follow the procedure in the last paragraph of section 10.05 of this revenue procedure.

Contacts the district or .03 Usually, within 21 calendar days after the branch receives the request for technical appeals office to discuss advice, a representative of the branch telephones the district or appeals office to discuss issues the procedural and substantive issues in the request that come within the branch’s jurisdiction.

Informs the district or .04 If the technical advice request concerns matters within the jurisdiction of more than appeals office if any matters one branch or office, a representative of the branch that received the original technical in the request have been advice request informs the district or appeals office within 21 calendar days of receiving referred to another the request that— branch or office

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

(2) a representative of the other branch or office will contact the district or appeals office about the technical advice request within 21 calendar days after receiving it in accordance with section 15.03 of this revenue procedure.

Informs the district or appeals .05 The branch representative will inform the district or appeals office that the case is office if additional being returned if substantial additional information is required to resolve an issue. Cases information is needed should be returned for additional information when significant unresolved factual variances exist between the statement of facts submitted by the district or appeals office and the taxpayer. Cases should also be returned if major procedural problems cannot be resolved by telephone.

If only minor procedural deficiencies exist, the branch representative will request the additional information in the most expeditious manner without returning the case. Within 21 calendar days after receiving the information requested, the branch representative will no

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1998–1 I.R.B. 91 January 5, 1998

tify the district or appeals office of the tentative conclusion and an estimated date by which the technical advice memorandum will be mailed, or an estimated date when a tentative conclusion will be made.

Informs the district or appeals .06 If all necessary information has been provided, the branch representative informs office of the tentative the district or appeals office of the tentative conclusion and the estimated date that the conclusion technical advice memorandum will be mailed.

If a tentative conclusion .07 If a tentative conclusion has not been reached because of the complexity of the has not been reached, issue, the branch representative informs the district or appeals office of the estimated date gives date estimated for the tentative conclusion will be made. tentative conclusion

Advises the district or .08 Because the branch representative’s tentative conclusion may change during the appeals office if tentative preparation and review of the technical advice memorandum, the tentative conclusion conclusion is changed should not be considered final. If the tentative conclusion is changed, the branch representative will inform the district or appeals office.

Generally does not discuss .09 Neither the national office nor the district or appeals office should advise the taxthe tentative conclusion payer or the taxpayer’s representative of the tentative conclusion during consideration of with the taxpayer the request for technical advice. However, 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 16.02 of this revenue procedure regarding discussions of the contents of the technical advice memorandum with the taxpayer or the taxpayer’s representative.

Advises the district or appeals .10 In all cases, the branch representative will inform the examining officer or appeals office of final conclusions 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 technical advice memorandum is issued.

If needed, requests .11 If, following the initial contact referenced in section 15.03 of this revenue proceadditional information dure, it is determined, after discussion with the branch chief or reviewer, that additional information is needed, a branch representative will obtain the additional information from the taxpayer or from the district director or the chief, appeals office, in the most expeditious manner possible. 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.

(1) 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.

(2) 21-day period 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, giving compelling facts and circumstances to justify the proposed extension. The assistant chief counsel of the office to which the case is assigned will determine whether to grant or deny the request for an extension of the 21-day period. No extension will be granted without the approval of the assistant 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. There is no right to appeal the denial of a request for extension.

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January 5, 1998 92 1998–1 I.R.B.

(3) If the taxpayer does not submit additional information. If the national office does not receive the additional information within the 21-day period, plus any extensions granted by the assistant chief counsel, the national office will issue the technical advice memorandum based on the existing record.

Requests taxpayer to send .12 Whether or not requested by the Service, any additional information submitted by additional information the taxpayer should be sent to the national office. Generally, the taxpayer needs only to to the national office submit one copy of the additional information to the national office. However, in appropriand a copy to the district ate cases, the national office may request additional copies of the information. director or chief, appeals office Also, the taxpayer must send a copy to the district director or the chief, appeals office, for comment. Any comments by the district director or the chief, appeals office, must be furnished promptly to the appropriate branch in the national office. If the district director or the chief, appeals office, does not have any comments, he or she must notify the branch representative promptly.

Informs the taxpayer .13 Generally, before replying to the request for technical advice, the national office inwhen requested deletions forms the taxpayer orally or in writing of the material likely to appear in the technical adwill not be made vice memorandum that the taxpayer proposed be deleted but that the Service has determined should not be deleted.

If so informed, the taxpayer may submit within 10 calendar days any further information or 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 technical advice. However, the taxpayer does not have the right to a conference to resolve any disagreements about material to be deleted from the text of the technical advice memorandum. These matters, however, may be considered at any conference otherwise scheduled for the request. See section 16.04 of this revenue procedure for the procedures to protest the disclosure of information in the technical advice memorandum.

Prepares reply in two parts .14 The replies to technical advice 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 district or appeals office administrative or other information that under the nondisclosure statutes or for other reasons may not be discussed with the taxpayer.

The second part is the technical advice memorandum, which contains—

(1) a statement of the issues;

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

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

(4) a discussion of the rationale supporting the conclusions reached by the national office; and

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

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1998–1 I.R.B. 93 January 5, 1998

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

Routes replies to .15 Replies to requests for technical advice are addressed to the district director or the appropriate office chief, appeals office. Replies to requests from appeals should be routed to the appropriate appeals office through the National Director of Appeals, C:AP:FS.