SECTION 8. WHEN SHOULD

TECHNICAL ADVICE BE REQUESTED?

.04 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 EP or EO Examinations or the issues in the return are being considered by an appeals office or a federal court, the taxpayer must notify EP or EO Technical. See, § 301.9100–3(e)(4)(i) and section 6.04 of Rev. Proc. 2002–4. EP or EO Technical will notify the appropriate EP or EO Examinations Area manager or Appeals Area Director, SB/SE-TE/GE, or government counsel considering the return that a request for § 301.9100–1 relief has been submitted. The EP or EO specialist, appeals officer or government counsel is not authorized to deny consideration of a request for § 301.9100–1 relief. The letter ruling will be mailed to the taxpayer and a copy will be sent to the appropriate EP or EO Examinations Area manager, or Appeals Area Director, SB/SE-TE/ GE, or government counsel.

.01 The EP or EO Examinations Area manager, the EP or EO Determinations manager or the Appeals Area Director, SB/SE-TE/GE, determines whether to request technical advice on any issue being considered. Each request must be submitted through proper channels and signed by a person who is authorized to sign for the EP or EO Examinations Area manager, the EP or EO Determinations manager or the Appeals Area Director, SB/SE-TE/GE. The mandatory technical advice described in section 4.04(3) of this revenue procedure, for cases concerning amendments to defined contribution plans in connection with a waiver of the minimum funding standard and a request for a determination letter, is treated as if it had been a request for technical advice submitted by the EP Determinations manager. See section 15 of Rev. Proc. 2002–6 and section 3.04 of Rev. Proc. 94–41 for the procedural rules applicable to this particular mandatory technical advice. Taxpayer may ask that issue be referred for technical advice .

.02 While a case is under the jurisdiction of EP or EO Examinations, EP or EO Determinations, or an Appeals Area Director, SB/SE-TE/GE, a taxpayer may request that an issue be referred to the EP or EO Technical office for technical advice.

Uniformity of position lacking .01 Technical advice should be requested when there is a lack of uniformity regarding the disposition of an issue or when an issue is unusual or complex enough to warrant consideration by EP or EO Technical

When technical advice can be requested

.02 The provisions of this revenue procedure apply only to a case under the jurisdiction of EP or EO Examinations, EP or EO Determinations or an Appeals Area Director, SB/SE-TE/GE. Technical advice may also be requested on issues considered in a prior appeals disposition, not based on mutual concessions for the same tax period of the same taxpayer, if the appeals office that had the case concurs in the request.

EP or EO Examinations or EP or EO Determinations may not request technical advice on an issue if an appeals office is currently considering an identical issue of the same taxpayer (or of 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). A case remains under the jurisdiction of EP or EO Examinations or EP or EO Determinations even though an appeals office has the identical issue under consideration in the case of another taxpayer (not related within the meaning of § 267 or § 1504) in an entirely different transaction. With respect to the same taxpayer or the same transaction, when the issue is under the jurisdiction of an appeals office, and the applicability of more than one

2002–1 I.R.B 181 January 7, 2002

kind of federal tax is dependent upon the resolution of that issue, EP or EO Examinations or EP or EO Determinations may not request technical advice on the applicability of any of the taxes involved.

EP or EO Examinations or EP or EO Determinations or an Appeals Area Director, SB/SE-TE/GE, also may not request technical advice on an issue if the same issue of the same taxpayer (or of 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) is in a docketed case for the same taxpayer (or for a related taxpayer or a member of an affiliated group of which the taxpayer is also a member) for any taxable year.

At the earliest possible stage .03 Once an issue is identified, all requests for technical advice should be made at the earliest possible stage in any proceeding. The fact that the issue is raised late in the examination, determination or appeals process should not influence, however, EP or EO Examinations’, EP or EO Determinations’ or an Appeals Area Director, SB/SE-TE/GE’s decision to request technical advice.