SECTION 8. SIMULTANEOUS

APPEALS PROCEDURE

.01 General . A taxpayer filing a request for competent authority assistance under this revenue procedure may, at the same time or at a later date, request Appeals’ consideration of the competent authority issue under the procedures and conditions provided in this section. The U.S. competent authority also may request Appeals’ involvement if it is determined that such involvement would facilitate the negotiation of a mutual agreement in the case or otherwise would serve the interest of the Service. The taxpayer may, at any time, request a prefiling conference with the offices of the Chief of Appeals and the U.S. competent authority to discuss the Simultaneous Appeals procedure. See also section 7.02 of this revenue procedure for coordination with the competent authority of cases already in Appeals. However, arbitration or mediation procedures that otherwise would be available through the Appeals process are not available for cases in the simultaneous appeals procedure. See Announcement 2000–4, 2000–1 C.B. 317, as extended by Announcement

August 5, 2002 248 2002–31 I.R.B.

the foreign competent authority. The procedures under this section do not give taxpayers the right to receive reconsideration of the issue by Appeals where the taxpayer applied for competent authority assistance after having received substantial Appeals consideration. Rather, the Service may rely upon, but necessarily will not be bound by, such previous consideration by Appeals when considering the case under the Simultaneous Appeals procedure.

(b) Assistance to U.S. Competent Authority . The U.S. competent authority is responsible for developing a U.S. position paper with respect to the issue and for conducting the mutual agreement procedure. Generally, requesting Appeals’ consideration of an issue under competent authority jurisdiction will not affect the manner in which taxpayers normally are involved in the competent authority process.

.06 Denial or Termination of Simulta- neous Appeals Procedure .

(a) Taxpayer’s Termination . The taxpayer may, at any time, withdraw its request for the Simultaneous Appeals procedure.

(b) Service’s Denial or Termination . The U.S. competent authority, the Chief of Appeals or the appropriate Area Director may decide to deny or terminate the Simultaneous Appeals procedure if the procedure is determined to be prejudicial to the mutual agreement procedure or to the administrative appeals process. For example, a taxpayer that received Appeals consideration before requesting competent authority assistance, but was unable to reach a settlement in Appeals, may be denied the Simultaneous Appeals procedure. A taxpayer may request a conference with the offices of the U.S. competent authority and the Chief of Appeals to discuss the denial or termination of the procedure.

.07 Returning to Appeals . If the competent authorities fail to agree or if the taxpayer does not accept the mutual agreement reached by the competent authorities, the taxpayer will be permitted to refer the issue to Appeals for further consideration.

.08 Appeals Consideration of Non- Competent Authority Issues . The Simultaneous Appeals procedure does not affect

2002–60, 2002–26 I.R.B. 28, or any subsequent announcement; and Rev. Proc. 2002–44, 2002–26 I.R.B. 10. .02 Time for Requesting the Simulta- neous Appeals Procedure .

(a) When Filing For Competent Authority Assistance . The Simultaneous Appeals procedure may be invoked at any of the following times:

(1) When the taxpayer applies for competent authority assistance with respect to an issue for which the examining IRS office has proposed an adjustment and before the protest is filed;

(2) When the taxpayer files a protest with Appeals and decides to sever the competent authority issue and seek competent authority assistance while other issues are referred to Appeals; and

(3) When the case is in Appeals and the taxpayer later decides to request competent authority assistance with respect to the competent authority issue. The taxpayer may sever the competent authority issue for referral to the U.S. competent authority and invoke the Simultaneous Appeals procedure at any time when the case is in Appeals but before settlement of the issue. Taxpayers, however, are encouraged to invoke the Simultaneous Appeals procedure as soon as possible, preferably as soon as practicable after the first Appeals conference.

(b) After Filing For Competent Authority Assistance . The taxpayer may request the Simultaneous Appeals procedure at any time after requesting competent authority assistance. However, a taxpayer’s request for the Simultaneous Appeals procedure generally will be denied if made after the date the U.S. position paper is communicated to the foreign competent authority, unless the U.S. competent authority determines that the procedure would facilitate an early resolution of the competent authority issue or otherwise is in the best interest of the Service.

.03 Cases Pending in Court . If the matter is pending before a U.S. court or has been designated for litigation and jurisdiction has been released to the U.S. competent authority, a request for the Simultaneous Appeals procedure may be granted only with the consent of the U.S. competent authority and the Associate Chief Counsel (International).

.04 Request for Simultaneous Appeals Procedure . The taxpayer’s request for the Simultaneous Appeals procedure should be addressed to the U.S. competent authority either as part of the initial competent authority assistance request or, if made later, as a separate letter to the U.S. competent authority. The request should state whether the issue was previously protested to Appeals for the periods in competent authority or for prior periods (in which case a copy of the relevant portions of the protest and an explanation of the outcome, if any, should be provided). The U.S. competent authority will send a copy of the request to the Chief of Appeals, who, in turn, will forward a copy to the appropriate Area Director. When the U.S. competent authority invokes the Simultaneous Appeals procedure, the taxpayer will be notified. The U.S. competent authority has jurisdiction of the issue when the Simultaneous Appeals procedure is invoked.

.05 Role of Appeals in the Simulta- neous Appeals Procedure .

(a) Appeals Process . The Appeals representative assigned to the case will consult with the taxpayer and the U.S. competent authority for the purpose of reaching a resolution of the unagreed issue under competent authority jurisdiction before the issue is presented to the foreign competent authority. For this purpose, established Appeals procedures generally apply. The Appeals representative will consult with the U.S. competent authority during this process to ensure appropriate coordination of the Appeals process with the competent authority procedure, so that the terms of a tentative resolution and the principles and facts upon which it is based are compatible with the position that the U.S. competent authority intends to present to the foreign competent authority with respect to the issue. Any resolution reached with the Service under this procedure is subject to the competent authority process and, therefore, is tentative and not binding on the Service or the taxpayer. The Service will not request the taxpayer to conclude the Appeals process with a written agreement. The conclusions of the tentative resolution, however, generally will be reflected in the U.S. position paper used for negotiating a mutual agreement with

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the taxpayer’s rights to Appeals’ consideration of other unresolved issues. The taxpayer may pursue settlement discussions with respect to the other issues without waiting for resolution of the issues under competent authority jurisdiction.