SECTION 10. WHAT MUST BE

INCLUDED IN THE REQUEST FOR TECHNICAL ADVICE?

Statement of issues, facts, law, and arguments

Taxpayer must submit statement if the taxpayer initiates request for technical advice

with the taxpayer as well as with any other Service personnel whose attendance the EP or EO Examinations or the EP or EO Determinations or the appeals office believes would be appropriate.

.05 Pre-submission conferences generally will be held in person in EP or EO Technical. However, if the EP or EO Examinations or the EP or EO Determinations or the appeals office personnel are 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 EP or EO Examinations or the EP or EO Determinations or the appeals office and the taxpayer should submit to EP or EO Technical 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 EP or EO Technical’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 EP or EO Technical to become reasonably informed regarding the subject matter of the conference prior to the meeting. The EP or EO Examinations or the EP or EO Determinations or the appeals office or the taxpayer should ensure that the EP or EO Technical 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, 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 an EP or EO Examinations office or an EP or EO Determinations office or an appeals office, a request for technical advice must include the facts and the issues for which technical advice is requested, and 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.

(1) If the taxpayer initiates the request for technical advice, the taxpayer must submit to the EP or EO specialist or appeals officer, at the time the taxpayer initiates the request, a written statement—

(a) stating the facts and the issues;

(b) explaining the taxpayer’s position;

(c) 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

(d) stating the reasons for requesting technical advice.

If the EP or EO specialist or the appeals officer determines that technical advice will be requested, the taxpayer’s statement will be forwarded to EP or EO Technical with the request for technical advice.

Sec. 10.01 2002–1 I.R.B 183 January 7, 2002

Taxpayer is encouraged to submit statement if Service initiates request for technical advice

Statement of authorities contrary to taxpayer’s position

Statement pertaining to statute of limitations

(2) If the request for technical advice is initiated by an EP or EO Examinations office or by an EP or EO Determinations office or by an appeals office, the taxpayer is encouraged to submit the written statement described in section 10.01(1) of this revenue procedure. If the taxpayer’s statement is received after the request for technical advice has been forwarded to EP or EO Technical, the statement will be forwarded to EP or EO Technical for association with the technical advice request.

(3) Whether the request for technical advice is initiated by the taxpayer or by an EP or EO Examinations office or by an EP or EO Determinations office or by an appeals office, the taxpayer is also encouraged to comment on any 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.

.02 As part of the request, the EP or EO Examinations or the EP or EO Determinations or the appeals office must submit a statement, in addition to the criteria on Form 5565 referred to below, that (1) the applicable statute of limitations has at least 180 calendar days to run before its expiration or (2) the applicable statute of limitations will run prior to 180 calendar days from the date a request is transferred to EP or EO Technical and the case should be processed on an expedited basis. If the EP or EO Examinations or the EP or EO Determinations or the appeals office obtains an extension of the statute of limitations while the request is being processed in EP or EO Technical, the office obtaining the extension must also submit a revised statement to EP or EO Technical advising it of the new expiration date.

If there are less than 61 calendar days remaining before the expiration of the statute of limitations with respect to a case being processed on an expedited basis, the case will be returned to the office responsible for statute control of the file unless a decision is made pursuant to IRM Multifunctional Handbook section 121.2, Statute of Limitations Handbook that the case can be timely processed. EP or EO Technical will telephone (or fax notice of) its decision to the requesting EP or EO Examinations or the EP or EO Determinations or the appeals office and will place a memorandum in the file to reflect whatever procedural steps have been taken.

General provisions of §§ 6104 and .03 Generally, § 6104(a)(1)(B) provides that an application filed with respect to: (1) 6110 the qualification of a pension, profit-sharing, or stock bonus plan under § 401(a) or § 403(a) or an individual retirement arrangement under § 408(a) or § 408(b) will be open to public inspection pursuant to regulations as will (2) any application filed for an exemption from tax under § 501(a) of an organization forming part of a plan or account described above. Generally, § 6110(a) provides that except as provided otherwise, written determinations (defined in § 6110(b)(1) as rulings, determination letters, technical advice memorandums and Chief Counsel advice) and any related background file document will be open to public inspection pursuant to regulations.

Application of § 6104 .04 The requirements for submitting statements and other materials or proposed deletions in technical advice memorandums before public inspection is allowed do not apply to requests for any documents to the extent § 6104 applies.

Statement identifying information to be deleted from public inspection

.05 The text of a technical advice memorandum subject to § 6110 may be open to public inspection. 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 11.05 of this revenue procedure.

Sec. 10.05 January 7, 2002 184 2002–1 I.R.B.

Transmittal Form 5565, Request for Technical Advice — EP/EO

Address to send requests from EP or EO Examinations or EP or EO Determinations offices

Address to send requests from appeals offices

Number of copies of request to be submitted

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 attached to the request.

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 the same information deleted from the additional information.

.06 The EP or EO Examinations or the EP or EO Determinations or the appeals office should use Form 5565, Request for Technical Advice — EP/EO, for transmitting a request for technical advice to EP or EO Technical using the addresses listed below.

Employee Plans Internal Revenue Service Attn: T:EP:RA 1111 Constitution Ave., NW Washington, DC 20224

Exempt Organizations Internal Revenue Service Attn: T:EO:RA 1111 Constitution Ave., NW Washington, DC 20224

Internal Revenue Service Director, Appeals LMSB Operations Attn: C:AP:LMSB Franklin Court Building 1099 14 ^th Street, NW Washington, DC 20005

.07 The EP or EO Examinations or the EP or EO Determinations or the appeals office must submit (3) three copies of the request for technical advice to EP or EO Technical.

Power of attorney .08 Any authorized representative, as described in section 9.02 of Rev. Proc. 2002–4, whether or not enrolled to practice, must comply with Treasury Department Circular No. 230, as revised, and with the conference and practice requirements of the Statement of Procedural Rules (26 CFR part 601). 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.

Sec. 10.08 2002–1 I.R.B 185 January 7, 2002

Case files .09 The EP or EO Examinations or the EP or EO Determinations or the appeals office will submit copies of the original documents (the administrative file) to EP or EO Technical accompanying the applicable Form 5565. The EP or EO Examinations or the EP or EO Determinations or the appeals office will maintain the original documents (including any power of attorney).