SECTION 17. WHAT IS THE

EFFECT OF TECHNICAL ADVICE?

Applies only to the taxpayer .01 A taxpayer may not rely on a technical advice memorandum issued by the Service for whom technical advice for another taxpayer. See § 6110(k)(3). was requested

Usually applies retroactively .02 Except in rare or unusual circumstances, a holding in a technical advice memorandum that is favorable to the taxpayer is applied retroactively.

Sec. 16.01

January 4, 1999 96 1999–1 I.R.B.

Moreover, because technical advice, as described in section 2 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 (Domestic), the Associate Chief Counsel (Employee Benefits and Exempt Organizations), the Associate Chief Counsel (Enforcement Litigation), or the Associate Chief Counsel (International), as appropriate, exercises the discretionary authority under § 7805(b) to limit the retroactive effect of the holding.

Generally applied retroactively .03 A holding that modifies or revokes a holding in a prior technical advice memoranto modify or revoke prior dum is applied retroactively, with one exception. If the new holding is less favorable to technical advice 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.

A pplies to continuing action or .04 If a technical advice memorandum relates to a continuing action or a series of series of actions until specifically actions, ordinarily it is applied until specifically withdrawn or until the conclusion is withdrawn, modified, or revoked modified or revoked by the enactment of legislation, the ratification of a tax treaty, a decision of the United States Supreme Court, or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 technical advice memorandum.

Applies to continuing action .05 A taxpayer is not protected against retroactive modification or revocation of a or series of actions until technical advice memorandum involving a continuing action or a series of actions material facts change occurring after the material facts on which the technical advice memorandum is based have changed.

Does not apply retroactively .06 Generally, a technical advice memorandum that modifies or revokes a letter ruling or under certain conditions another technical advice memorandum is not applied retroactively either to the taxpayer to whom or for whom the letter ruling or technical advice memorandum was originally issued, or to a taxpayer whose tax liability was directly involved in such letter ruling or technical advice memorandum if—

(1) there has been no misstatement or omission of material facts;

(2) the facts at the time of the transaction are not materially different from the facts on which the letter ruling or technical advice memorandum was based;

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

(4) in the case of a letter ruling, it was originally issued on a prospective or proposed transaction; and

(5) the taxpayer directly involved in the letter ruling or technical advice memorandum acted in good faith in relying on the letter ruling or technical advice memorandum, and the retroactive modification or revocation would be to the taxpayer’s detriment. For example, the tax liability of each shareholder is directly involved in a letter ruling or technical advice memorandum on the reorganization of a corporation. However, the tax liability of a member of an industry is not directly involved in a letter ruling or technical advice memorandum issued to another member and, therefore, the holding in a modification or revocation of a letter ruling or technical advice memorandum to one member of an industry may be retroactively applied to other members of the industry. By the same reasoning, a tax practitioner may not obtain the nonretroactive application to one client of a modification or revocation of a letter ruling or technical advice memorandum previously issued to another client.

When a letter ruling to a taxpayer or a technical advice memorandum involving a taxpayer is modified or revoked with retroactive effect, the notice to the taxpayer, except in fraud cases, sets forth the grounds on which the modification or revocation is being made and the reason why the modification or revocation is being applied retroactively.

Sec. 17.06

1999–1 I.R.B. 97 January 4, 1999