SECTION 10. WHAT MUST BE

INCLUDED IN THE REQUEST FOR TECHNICAL ADVICE?

Statement of issues, facts, law, and arguments; submission of relevant foreign laws and documents in a language other than English; and statement regarding interpretation of an income or estate tax treaty

local counsel is strongly encouraged. If the request involves a designated issue or industry under the Office of Pre-Filing and Technical Guidance, LMSB, coordination with the technical advisor is also strongly encouraged.

An original and one copy of the request should be submitted to the appropriate address listed in section 10.03 of this revenue procedure.

.04 Within 5 working days after it receives the request, the branch assigned responsibility for conducting the pre-submission conference will contact the field or area office to arrange a mutually convenient time for the parties to meet in the national office. The conference generally should be held within 30 calendar days after the field or area office is contacted. The field or area office will be responsible for coordinating with the taxpayer as well as with any other Service personnel whose attendance the field or area office believes would be appropriate.

.05 Pre-submission conferences generally will be held in person in the national office. However, if the field or area office personnel or the taxpayer is unable to attend the conference, the conference may be conducted by telephone.

.06 At least 10 working days before the scheduled pre-submission conference, the field or area office and the taxpayer should submit to the national office a statement of the pertinent facts (including any facts in dispute); a statement of the issues that the parties would like to discuss; and any legal analysis, authorities, or background documents that the parties believe would facilitate the national office’s understanding of the issues to be discussed at the conference. The legal analysis provided for the pre-submission conference need not be as fully developed as the analysis that ultimately will accompany the request for technical advice, but it should allow the national office to become reasonably informed regarding the subject matter of the conference prior to the meeting. The field or area office or the taxpayer should ensure that the national office receives a copy of any required power of attorney, preferably on Form 2848, Power of Attorney and Declaration of Representative.

.07 Because pre-submission conference procedures are informal, no tape, stenographic, or other verbatim recording of a conference may be made by any party.

.08 Any discussion of substantive issues at a pre-submission conference is advisory only, is not binding on the Service in general or on the Office of Chief Counsel in particular and cannot be relied upon as a basis for obtaining retroactive relief under the provisions of § 7805(b).

.01 Whether initiated by the taxpayer or by a field or area office, a request for technical advice must include the facts and the issues for which technical advice is requested; 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; the information required in sections 10.01(4) and 10.01(5) of this revenue procedure with respect to the submission of relevant foreign laws and documents in a language other than English, if applicable; and the written statement required in section 10.01(6) of this revenue procedure with respect to the interpretation of a substantive provision of an income or estate tax treaty, if applicable.

Sec. 10.01 2002–1 I.R.B 93 January 7, 2002

To facilitate prompt action on technical advice requests, the taxpayer is encouraged to request that if the Service requests additional information from the taxpayer, the Service does so by fax. The procedures for requesting such document to be faxed are the same as those in section 16.11(1) of this revenue procedure.

(1) If taxpayer initiates request for technical advice, taxpayer must submit writ- ten statement, copy of relevant foreign laws, and certified English translations of documents in a language other than English. If the taxpayer initiates the request for technical advice, the taxpayer must submit to the examining officer or appeals officer, at the time the taxpayer initiates the request:

(a) a written statement—

(i) stating the facts and the issues;

(ii) explaining the taxpayer’s position;

(iii) discussing any relevant statutory provisions, tax treaties, court decisions, regulations, revenue rulings, revenue procedures, notices, or any other authority supporting the taxpayer’s position; and

(iv) stating the reasons for requesting technical advice;

(b) the information required in sections 10.01(4) and 10.01(5) of this revenue procedure with respect to the submission of a copy of relevant foreign laws and certified English translations of documents in a language other than English, if applicable; and

(c) the written statement required in section 10.01(6) of this revenue procedure with respect to the interpretation of a substantive provision of an income or estate tax treaty, if applicable.

If the examining officer or appeals officer determines that technical advice will be requested, the taxpayer’s statement, including the information required in sections 10.01(4), 10.01(5), and 10.01(6) of this revenue procedure, will be forwarded to the national office with the request for technical advice.

(2) If the Service initiates request for technical advice, taxpayer is encouraged to submit written statement, copy of relevant foreign laws, and certified English trans- lations of documents in a language other than English. If the request for technical advice is initiated by a field or area office, the taxpayer is encouraged to submit a written statement explaining the taxpayer’s position and discussing relevant statutory provisions, court decisions, regulations, revenue rulings, revenue procedures, notices or any other authority supporting the taxpayer’s position. If the taxpayer chooses to submit this statement and information, the taxpayer and the field or area office should determine a mutually agreed date for the submission of the taxpayer’s statement and information so that it will be forwarded to the national office with the request for technical advice. Section 11.03 applies with respect to any disagreements with the Service’s statement of facts and issues.

If the request for technical advice is forwarded to the national office without the taxpayer’s statement and information and if the taxpayer chooses to submit the statement and information, the taxpayer must submit the statement and information to the national office within 21 calendar days after the request for technical advice has been forwarded. The taxpayer must also send a copy of the statement and information to the director or the area director, appeals. The procedures for requesting an extension of the 21-day period and receiving approval of such extension are the same as those in section 16.11(3) of this revenue procedure. If the national office does not receive the taxpayer’s statement and information within the 21-day period, plus extensions granted by the associate or assistant

Sec. 10.01 January 7, 2002 94 2002–1 I.R.B.

chief counsel, as appropriate, the national office, at its discretion, may base its advice on the facts provided by the field or area office.

(3) Statement of authorities contrary to taxpayer’s position. Whether the request for technical advice is initiated by the taxpayer or by a field or area office, the taxpayer is also encouraged to comment on any legislation (or pending 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.

(4) Relevant parts of all foreign laws. Whether initiated by the taxpayer or by a field or area office, a request for technical advice, and other statements forwarded to the national office with the request, must include a copy of the relevant parts of all foreign laws, including statutes, regulations, administrative pronouncements, and any other relevant legal authority. The documents submitted must be in the official language of the country involved and must be copied from an official publication of the foreign government or another widely available, generally accepted publication. If English is not the official language of the country involved, the submission must also include a copy of an English language version of the relevant parts of all foreign laws. This translation must be: (a) from an official publication of the foreign government or another widely available, generally accepted publication; or (b) a certified English translation submitted in accordance with section 10.01(5) of this revenue procedure.

The taxpayer or the field or area office must identify the title and date of publication, including updates, of any widely available, generally accepted publication that it (or its qualified translator) uses as a source for the relevant parts of the foreign law.

The taxpayer and the field or area office are encouraged to inform the national office about and discuss the implications of any authority believed to interpret the foreign law, such as pending legislation, treaties, court decisions, notices, or administrative decisions. But see section 11.05 of this revenue procedure, stating that the national office may refuse to provide technical advice if the interpretation of a foreign law or foreign document is a material fact.

(5) Standards for acceptability of submissions of documents in a language other than English and certified English translations of laws in a language other than English. Whether initiated by the taxpayer or by a field or area office, a request for technical advice, and other statements forwarded to the national office with the request, must include an accurate and complete certified English translation of the relevant parts of all contracts, wills, deeds, agreements, instruments, trust documents, proposed disclaimers, or other documents in a language other than English. If the taxpayer or the field or area office chooses to submit certified English translations of foreign laws, those translations must be based on an official publication of the foreign government or another widely available, generally accepted publication. In either case, the translation must be that of a qualified translator and must be attested to by the translator. The attestation must contain: (a) a statement that the translation submitted is a true and accurate translation of the foreign language document or law; (b) a statement as to the attestant’s qualifications as a translator and as to that attestant’s qualifications and knowledge regarding income tax matters; and (c) the attestant’s name and address.

(6) Statement regarding interpretation of a substantive provision of an income or estate tax treaty. Whether initiated by the taxpayer or by a field or area office, a request for technical advice involving the interpretation of a substantive provision of an income or estate tax treaty must include a written statement regarding whether—

Sec. 10.01 2002–1 I.R.B 95 January 7, 2002

Statement identifying information to be deleted from public inspection

Transmittal Form 4463, Request for Technical Advice

Address to send requests from field offices

(a) the tax authority of the treaty jurisdiction has issued a ruling on the same or similar issue for the taxpayer, a related taxpayer (within the meaning of § 267 or a member of an affiliated group of which the taxpayer is also a member within the meaning of § 1504), or any predecessor;

(b) the same or similar issue for the taxpayer, a related taxpayer, or any predecessor is being examined, or has been settled, by the tax authority of the treaty jurisdiction or is otherwise the subject of a closing agreement in that jurisdiction; and

(c) the same or similar issue for the taxpayer, a related taxpayer, or any predecessor is being considered by the competent authority of the treaty jurisdiction.

.02 The text of a technical advice memorandum is open to public inspection under § 6110(a). 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 11.06 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.

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 only the same information deleted from the additional information.

.03 The field or area office should use Form 4463, Request for Technical Advice, for transmitting a request for technical advice to the national office using the addresses listed below.

The field office should send the request to:

Internal Revenue Service Attn: CC:PA:T P.O. Box 7604 Ben Franklin Station Washington, D.C. 20044

Sec. 10.03 January 7, 2002 96 2002–1 I.R.B.

Address to send requests from area offices

Number of copies of request to be submitted

The area office may send the request to either:

Office of LMSB Operations C:AP:LMSB Office of the National Chief Appeals C:AP Internal Revenue Service 1111 Constitution Ave., N.W. Washington, D.C. 20224; or

Office of LMSB Operations C:AP:LMSB Office of the National Chief Appeals C:AP Internal Revenue Service Franklin Court Building—East Court 1099 14th Street, N.W.—4th Floor Washington, D.C. 20005

.04 The field or area office must submit three copies of the request for technical advice to the address in section 10.03 of this revenue procedure with two copies being designated for the national office.

Also, the field or area office must send: (1) one copy of the request for technical advice to the technical advisor if the request involves a designated issue or industry under the Office of Pre-Filing and Technical Guidance, LMSB; and (2) one copy of the request for technical advice to the division counsel of the operating division that has jurisdiction of the taxpayer’s tax return.

Power of attorney .05 Any authorized representative, as described in section 8.01(13) of Rev. Proc. 2002–1, whether or not enrolled to practice, must comply with Treasury Department Circular No. 230 (31 C.F.R. part 10 (2001)) and with the conference and practice requirements of the Statement of Procedural Rules (26 C.F.R. § 601.501–601.509 (2001)). 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. An original, a copy, or a fax transmission of the power of attorney is acceptable so long as its authenticity is not reasonably disputed.