SECTION 18. HOW MAY

RETROACTIVE EFFECT BE LIMITED?

Taxpayer may request that .01 Under § 7805(b), the Associate Chief Counsel (Domestic), the Associate Chief retroactivity be limited Counsel (Employee Benefits and Exempt Organizations), the Associate Chief Counsel (Enforcement Litigation), or the Associate Chief Counsel (International), as the Commissioner’s delegate, may prescribe the extent, if any, to which a technical advice memorandum will be applied without retroactive effect.

A taxpayer for whom a technical advice memorandum was issued or for whom a technical advice request is pending may request that the Associate Chief Counsel (Domestic), the Associate Chief Counsel (Employee Benefits and Exempt Organizations), the Associate Chief Counsel (Enforcement Litigation), or the Associate Chief Counsel (International), as appropriate, limit the retroactive effect of any holding in the technical advice memorandum or of any subsequent modification or revocation of the technical advice memorandum.

When germane to a pending technical advice request, a taxpayer should request to limit the retroactive effect of the holding of the technical advice memorandum early during the consideration of the technical advice request by the national office. This § 7805(b) request should be made initially as part of that pending technical advice request. The national office, however, will consider a § 7805(b) request to limit the retroactive effect of the holding if the request is made at a later time.

Form of request to limit .02 When a technical advice memorandum that concerns a continuing transaction is retroactivity—continuing modified or revoked by, for example, issuance of a subsequent revenue ruling, or tempotransaction before rary or final regulation, a request to limit the retroactive effect of the modification or revoexamination of return cation of the technical advice memorandum must be made in the form of a request for a letter ruling if the request is submitted before an examination of the return pertaining to the transaction that is the subject of the request for the letter ruling. The requirements for a letter ruling request are given in sections 8 and 12.11 of Rev. Proc. 98–1.

Form of request to limit .03 In all other cases during the course of an examination of a taxpayer’s return by the retroactivity—in all district director or during consideration of the taxpayer’s return by the chief, appeals office other cases (including when the taxpayer is informed that the district director or the chief, appeals

Sec. 17.06

January 5, 1998 96 1998–1 I.R.B.

office, will recommend that a technical advice memorandum, letter ruling, or determination letter previously issued to, or with regard to, the taxpayer be modified or revoked), a taxpayer’s request to limit retroactivity must be made in the form of a request for technical advice.

The request must meet the general requirements of a technical advice request, which are given in sections 6, 7, and 9 of this revenue procedure. The request must also—

(1) state that it is being made under § 7805(b);

(2) state the relief sought;

(3) explain the reasons and arguments in support of the relief sought (including a discussion of the five items listed in section 17.06 of this revenue procedure and any other factors as they relate to the taxpayer’s particular situation); and

(4) include any documents bearing on the request.

The taxpayer’s request, including the statement that the request is being made under § 7805(b), must be submitted to the district director or the chief, appeals office, who must then forward the request to the national office for consideration.

Taxpayer’s right to .04 When a request for technical advice concerns only the application of § 7805(b), the a conference taxpayer has the right to a conference in the national office in accordance with the provisions of section 13 of this revenue procedure. In accordance with section 13.02 of this revenue procedure, the examining officer or appeals officer will be offered the opportunity to attend the conference on the § 7805(b) issue. Section 13.02 of this revenue procedure also provides that other Service representatives are allowed to participate in the conference.

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

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

SECTION 19. WHAT . 01 This revenue procedure has been expanded to include the pre-submission conferSIGNIFICANT CHANGES ence procedures in Rev. Proc. 97–21, 1997–1 C.B. 651. Accordingly, sections 8 through HAVE BEEN MADE TO 20 of Rev. Proc. 97–2 are redesignated as sections 9 through 21 in this revenue procedure, REV. PROC. 97–2? and the pre-submission conference procedures are provided in new section 8. These procedures are the same as in Rev. Proc. 97–21, except for the provision stating that no tape, stenographic, or other verbatim recording of the conference may be made by any party.

.02 Section 5.03 is amended to reflect the address to send a § 301.9100 letter ruling request if a private delivery service is used.

.03 Section 5.03 also is amended to reflect the national office’s existing practice of allowing the hand-delivery of a § 301.9100 letter ruling request to the courier’s desk of the Service.

.04 Section 7.02 is amended to provide that if the appeals officer agrees, by memorandum, to the submission of the request for technical advice, the district director may request technical advice on the same issue of the same taxpayer (or related taxpayer) pending before the appeals office, including the applicability of any of the federal taxes involved when more than one kind of federal tax is dependent on the resolution of that issue.

Sec. 19

1998–1 I.R.B. 97 January 5, 1998

.05 Section 16.01 is amended to provide that the conclusions in a technical advice memorandum involving a § 103 obligation and the issuer of this obligation generally must be treated by the district director or the chief, appeals office, as applying to the issuer and any holder of the obligation, unless the holder initiates a request for technical advice on the same issue addressed in the technical advice memorandum involving the issuer, and the national office issues a technical advice memorandum involving that issue and that holder.

SECTION 20. WHAT IS .01 Rev. Proc. 97–2, 1997–1 C.B. 486, as amplified by Rev. Proc. 97–21, 1997–1 C.B. THE EFFECT OF THIS 651, is superseded. REVENUE PROCEDURE ON OTHER .02 Rev. Proc. 97–21, 1997–1 C.B. 651, is modified, and, as modified, is superseded. DOCUMENTS?