SECTION 5. UNDER WHAT — Internal Revenue Bulletin 2001-1

CIRCUMSTANCES DOES THE NATIONAL OFFICE ISSUE LETTER RULINGS?

In income and gift tax matters .01 In income and gift tax matters, the national office generally issues a letter ruling on a proposed transaction and on a completed transaction if the letter ruling request is submitted before the return is filed for the year in which the transaction that is the subject of the request was completed.

(1) Circumstances under which a letter ruling is not ordinarily issued . The national office ordinarily does not issue a letter ruling if, at the time the letter ruling is requested, the identical issue is involved in the taxpayer’s return for an earlier period and that issue—

(a) is being examined by a director;

(b) is being considered by an area office;

(d) has been examined by a director or considered by an area office and the statutory period of limitations on assessment or on filing a claim for refund or credit of tax has not expired; or

(e) has been examined by a director or considered by an area office and a closing agreement covering the issue or liability has not been entered into by a director or by an area office.

Sec. 3.07 January 2, 2001 12 2001–1 I.R.B.

If a return dealing with an issue for a particular year is filed while a request for a letter ruling on that issue is pending, the national office will issue the letter ruling unless it is notified by the taxpayer or otherwise learns that an examination of that issue or the identical issue on an earlier year’s return has been started by a director. See section 8.04 of this revenue procedure. However, even if an examination has begun, the national office ordinarily will issue the letter ruling if the director agrees, by memorandum, to the issuance of the letter ruling.

(2) No letter ruling on a property conversion after return filed . The national office does not issue a letter ruling on the replacement of involuntarily converted property, whether or not the property has been replaced, if the taxpayer has already filed a return for the taxable year in which the property was converted. However, the director may issue a determination letter in this case. See section 6.01 of this revenue procedure.

(3) Certain late S corporation and related elections. In lieu of requesting a letter ruling under this revenue procedure, a taxpayer may obtain relief for certain late S corporation and related elections by following the procedures in Rev. Proc. 98–55, 1998–2 C.B. 643, or Rev. Proc. 97–48, 1997–2 C.B. 521. A request made pursuant to Rev. Proc. 98–55 or Rev. Proc. 97–48 does not require payment of any user fee. See section 3.05 of Rev. Proc. 98–55, section 3 of Rev. Proc. 97–48, and section 15.03(2) of this revenue procedure.

A § 301.9100 request for .02 The national office will consider a request for an extension of time for making an extension of time for election or other application for relief under § 301.9100–3 of the Procedure and making an election or Administration Regulations. Even if submitted after the return covering the issue prefor other relief sented in the § 301.9100 request has been filed and even if submitted after an examination of the return has begun or after the issues in the return are being considered by an area office or a federal court, a § 301.9100 request is a letter ruling request. Therefore, the § 301.9100 request should be submitted pursuant to this revenue procedure.

However, an election made pursuant to § 301.9100–2 is not a letter ruling request and does not require payment of any user fee. See § 301.9100–2(d) and section 15.03(1) of this revenue procedure. Such an election pertains to an automatic extension of time.

(1) Format of request . A § 301.9100 request (other than an election made pursuant to § 301.9100–2) must be in the general form of, and meet the general requirements for, a letter ruling request. These requirements are given in section 8 of this revenue procedure. In addition, the § 301.9100 request must include the information required by § 301.9100–3(e).

(2) Period of limitations . The running of any applicable period of limitations is not suspended for the period during which a § 301.9100 request has been filed. See § 301.9100–3(d)(2). If the period of limitations on assessment under § 6501(a) for the taxable year in which an election should have been made or any taxable year that would have been affected by the election had it been timely made will expire before receipt of a § 301.9100 letter ruling, the Service ordinarily will not issue a § 301.9100 ruling. See § 301.9100–3(c)(1)(ii). Therefore, the taxpayer must secure a consent under § 6501(c)(4) to extend the period of limitations on assessment. Note that the filing of a claim for refund under § 6511 does not extend the period of limitations on assessment. If § 301.9100 relief is granted, the Service may require the taxpayer to consent to an extension of the period of limitations on assessment. See § 301.9100–3(d)(2).

(3) Taxpayer must notify national office if examination of return begins while request is pending . If the Service starts an examination of the taxpayer’s return for the taxable year in which an election should have been made or any taxable year that would have been affected by the election had it been timely made while a § 301.9100 request is pending, the taxpayer must notify the national office. See § 301.9100–3(e)(4)(i) and section 8.04(1)(b) of this revenue procedure.

Sec. 5.02 2001–1 I.R.B. 13 January 2, 2001

(4) National office will notify the director, appeals officer, or government counsel of a § 301.9100 request if return is being examined by a field office or is being con- sidered by an area office or a federal court . If the taxpayer’s return for the taxable year in which an election should have been made or any taxable year that would have been affected by the election had it been timely made is being examined by a field office or considered by an area office or a federal court, the national office will notify the appropriate director, appeals officer, or government counsel that a § 301.9100 request has been submitted to the national office. The examining officer, appeals officer, or government counsel is not authorized to deny consideration of a § 301.9100 request. The letter ruling will be mailed to the taxpayer and a copy will be sent to the appropriate Service official in the operating division that has examination jurisdiction of the taxpayer’s tax return, appeals officer, or government counsel.

Determinations under .03 Under Rev. Proc. 77–9, 1977–1 C.B. 542, the Office of Associate Chief Counsel § 999(d) of the (International) issues determinations under § 999(d) that may deny certain benefits of the Internal Revenue Code foreign tax credit, deferral of earnings of foreign subsidiaries and domestic international sales corporations (DISCs), and tax exemption for foreign trade income of a foreign sales corporation or a small foreign sales corporation (FSC or small FSC) to a person, if that person, a member of a controlled group (within the meaning of § 993(a)(3)) that includes the person, or a foreign corporation of which a member of the controlled group is a United States shareholder, agrees to participate in, or cooperate with, an international boycott. Requests for determinations under Rev. Proc. 77–9 are letter ruling requests and, therefore, should be submitted to the Associate Chief Counsel (International) pursuant to this revenue procedure.

In matters involving § 367 .04 Unless the issue is covered by section 7 of this revenue procedure, the Office of Associate Chief Counsel (International) may issue a letter ruling under § 367 even if the taxpayer does not request a letter ruling as to the characterization of the transaction under the reorganization provisions of the Code. The Office of Associate Chief Counsel (International) will determine the § 367 consequences of a transaction based on the taxpayer’s characterization of the transaction but will indicate in the letter ruling that it expresses no opinion as to the characterization of the transaction under the reorganization. However, the Office of Associate Chief Counsel (International) may decline to issue a § 367 ruling in situations in which the taxpayer inappropriately characterizes the transaction under the reorganization provisions.

In estate tax matters .05 In general, the national office issues prospective letter rulings on transactions affecting the estate tax on the prospective estate of a living person and affecting the estate tax on the estate of a decedent before the decedent’s estate tax return is filed. The national office will not issue letter rulings for prospective estates on computations of tax, actuarial factors, and factual matters.

If the taxpayer is requesting a letter ruling regarding a decedent’s estate tax and the estate tax return is due to be filed before the letter ruling is expected to be issued, the taxpayer should obtain an extension of time for filing the return and should notify the national office branch considering the letter ruling request that an extension has been obtained.

If the return is filed before the letter ruling is received from the national office, the taxpayer must disclose on the return that a letter ruling has been requested, attach a copy of the pending letter ruling request to the return, and notify the national office that the return has been filed. See section 8.04 of this revenue procedure. The national office will make every effort to issue the letter ruling within 3 months of the date the return was filed.

If the letter ruling cannot be issued within that 3-month period, the national office will notify the director having jurisdiction over the return, who may, by memorandum to the national office, grant an additional period for the issuance of the letter ruling.

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In matters involving .06 In matters involving additional estate tax under § 2032A(c), the national office additional estate tax issues letter rulings on proposed transactions and on completed transactions that occurred under § 2032A(c) before the return is filed.

In matters involving .07 In matters involving qualified domestic trusts under § 2056A, the national office qualified domestic trusts issues letter rulings on proposed transactions and on completed transactions that occurred under § 2056A before the return is filed.

In generation-skipping .08 In general, the national office issues letter rulings on proposed transactions that transfer tax matters affect the generation-skipping transfer tax and on completed transactions that occurred before the return is filed. In the case of a generation-skipping trust or trust equivalent, letter rulings are issued either before or after the trust or trust equivalent has been established. The national office will issue letter rulings on the application of the effective date rules for generation-skipping transfer tax (§ 1433 of the Tax Reform Act of 1986, 1986–3 (Vol. 1) C.B. 1, 648) to wills, trusts, and trust equivalents in existence on October 22, 1986, and to generation-skipping transfers taking place on or before October 22, 1986.

In employment and excise .09 In employment and excise tax matters, the national office issues letter rulings on tax matters proposed transactions and on completed transactions either before or after the return is filed for those transactions.

Requests regarding employment status (employer/employee relationship) from federal agencies and instrumentalities should be submitted directly to the national office. Requests regarding employment status from other taxpayers must first be submitted to the appropriate Service office listed on the current Form SS-8 (Rev. June 1997). See section 6.04 of this revenue procedure. Generally, the employer is the taxpayer and requests the letter ruling. However, if the worker asks for the letter ruling, both the worker and the employer are considered to be the taxpayer and both are entitled to the letter ruling.

The national office usually will not issue a letter ruling if, at the time the letter ruling is requested, the identical issue is involved in the taxpayer’s return for an earlier period and that issue—

(1) is being examined by a director;

(2) is being considered by an area office;

(3) is pending in litigation in a case involving the taxpayer or a related taxpayer;

(4) has been examined by a director or considered by an area office and the statutory period of limitations on assessment or on filing a claim for refund or credit of tax has not expired; or

(5) has been examined by a director or considered by an area office and a closing agreement covering the issue or liability has not been entered into by a director or by an area office.

If a return involving an issue for a particular year is filed while a request for a letter ruling on that issue is pending, the national office will issue the letter ruling unless it is notified by the taxpayer or otherwise learns that an examination of that issue or an examination of the identical issue on an earlier year’s return has been started by a director. See section 8.04 of this revenue procedure. However, even if an examination has begun, the national office ordinarily will issue the letter ruling if the director agrees, by memorandum, to the issuance of the letter ruling.

In administrative provisions .10 matters

(1) In general . The national office issues letter rulings on matters arising under the Code and related statutes and regulations that involve—

Sec. 5.10 2001–1 I.R.B. 15 January 2, 2001

(a) the time, place, manner, and procedures for reporting and paying taxes;

(b) the assessment and collection of taxes (including interest and penalties);

(d) the filing of information returns.

(2) Circumstances under which a letter ruling is not ordinarily issued . The national office ordinarily does not issue a letter ruling if, at the time the letter ruling is requested, the identical issue is involved in the taxpayer’s return for an earlier period and that issue—

(a) is being examined by a director;

(b) is being considered by an area office;

(d) has been examined by a director or considered by an area office and the statutory period of limitations on assessment or on filing a claim for refund or credit of tax has not expired; or

(e) has been examined by a director or considered by an area office and a closing agreement covering the issue or liability has not been entered into by a director or area office.

If a return involving an issue for a particular year is filed while a request for a letter ruling on that issue is pending, the national office will issue the letter ruling unless it is notified by the taxpayer or otherwise learns that an examination of that issue or an examination of the identical issue on an earlier year’s return has been started by a director. See section 8.04 of this revenue procedure. But, even if an examination has begun, the national office ordinarily will issue the letter ruling if the director agrees, by memorandum, to the issuance of the letter ruling.

In Indian tribal government .11 Pursuant to Rev. Proc. 84–37, 1984–1 C.B. 513, as modified and made permanent by matters Rev. Proc. 86–17, 1986–1 C.B. 550, and as supplemented by Rev. Proc. 92–19, 1992–1 C.B. 685, the Office of Division Counsel/Associate Chief Counsel (Tax Exempt and Government Entities) issues determinations recognizing a tribal entity as an Indian tribal government within the meaning of § 7701(a)(40) or as a political subdivision of an Indian tribal government under § 7871(d) if it determines, after consultation with the Secretary of the Interior, that the entity satisfies the statutory definition of an Indian tribal government or has been delegated governmental functions of an Indian tribal government. Requests for determinations under Rev. Proc. 84–37 are letter ruling requests, and, therefore, should be submitted to the Office of Division Counsel/Associate Chief Counsel (Tax Exempt and Government Entities) pursuant to this revenue procedure.

(1) Definition of Indian tribal government. The term “Indian tribal government” is defined under § 7701(a)(40) to mean the governing body of any tribe, band, community, village or group of Indians, or (if applicable) Alaska Natives, that is determined by the Secretary of the Treasury, after consultation with the Secretary of the Interior, to exercise governmental functions. Section 7871(d) provides that, for purposes of § 7871, a subdivision of an Indian tribal government shall be treated as a political subdivision of a state if the Secretary of the Treasury determines, after consultation with the Secretary of the Interior, that the subdivision has been delegated the right to exercise one or more of the substantial governmental functions of the Indian tribal government.

(2) Inclusion in list of tribal governments. Rev. Proc. 83–87, 1983–2 C.B. 606, as modified and made permanent by Rev. Proc. 86–17, and as supplemented by Rev. Proc.

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92–19, provides a list of Indian tribal governments that are treated similarly to states for certain federal tax purposes. Rev. Proc. 84–36, 1984–1 C.B. 510, as modified and made permanent by Rev. Proc. 86–17, provides a list of political subdivisions of Indian tribal governments that are treated as political subdivisions of states for certain federal tax purposes. Under Rev. Proc. 84–37, tribal governments or subdivisions recognized under § 7701(a)(40) or § 7871(d) will be included on the list of recognized tribal government entities in revised versions of Rev. Proc. 83–87 or Rev. Proc. 84–36.

Generally not to business .12 The national office does not issue letter rulings to business, trade, or industrial assoassociations or groups ciations or to similar groups concerning the application of the tax laws to members of the group. But groups and associations may submit suggestions of generic issues that would be appropriately addressed in revenue rulings. See Rev. Proc. 89–14, which states the objectives of, and standards for, the publication of revenue rulings and revenue procedures in the Internal Revenue Bulletin.

The national office, however, may issue letter rulings to groups or associations on their own tax status or liability if the request meets the requirements of this revenue procedure.

Generally not to .13 The national office does not issue letter rulings to foreign governments or their foreign governments political subdivisions about the U.S. tax effects of their laws. The national office also does not issue letter rulings on the effect of a tax treaty on the tax laws of a treaty country for purposes of determining the tax of the treaty country. See section 13.02 of Rev. Proc. 96–13, 1996–1 C.B. at 626. However, treaty partners can continue to address matters such as these under the provisions of the applicable tax treaty. In addition, the national office may issue letter rulings to foreign governments or their political subdivisions on their own tax status or liability under U.S. law if the request meets the requirements of this revenue procedure.

Generally not on federal .14 The national office ordinarily does not issue letter rulings on a matter involving the tax consequences of federal tax consequences of any proposed federal, state, local, municipal, or foreign proposed legislation legislation. However, the Office of Division Counsel/Associate Chief Counsel (Tax Exempt and Government Entities) may issue letter rulings regarding the effect of proposed state, local, or municipal legislation upon an eligible deferred compensation plan under § 457(b) provided that the letter ruling request relating to the plan complies with the other requirements of this revenue procedure. The national office also may provide general information in response to an inquiry.

Issuance of a letter ruling .15 Unless the issue is covered by section 7 of this revenue procedure, Rev. Proc. 2001–3, before the issuance of a this Bulletin, or Rev. Proc. 2001–7, this Bulletin, a letter ruling may be issued before the regulation or other issuance of a temporary or final regulation or other published guidance that interprets the published guidance provisions of any act under the following conditions:

(1) Answer is clear or is reasonably certain . If the letter ruling request presents an issue for which the answer seems clear by applying the statute to the facts or for which the answer seems reasonably certain but not entirely free from doubt, a letter ruling will be issued.

(2) Answer is not reasonably certain . The Service will consider all letter ruling requests and use its best efforts to issue a letter ruling even if the answer does not seem reasonably certain where the issuance of a letter ruling is in the best interests of tax administration.

(3) Issue cannot be readily resolved before a regulation or any other published guidance is issued . A letter ruling will not be issued if the letter ruling request presents an issue that cannot be readily resolved before a regulation or any other published guidance is issued. However, when the Service has closed a regulation project or any other published guidance project that might have answered the issue or decides not to open a regulation project or any other published guidance project, the appropriate branch will

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