SECTION 7. GENERAL PROVISIONS

.01 A resolution reached by the parties through FTS will not bind the parties for taxable years not covered by the FTS Session Report. Except as provided in the Fast Track settlement agreement or Delega

vice, as defined in Publication 216, Con- ference and Practice Requirements, must have a power of attorney from the taxpayer (Form 2848, Power of Attorney and Declaration of Representative ).

.03 The FTS Appeals Official will hold the FTS session at the date and location agreed to by both parties. Prior to the FTS session, the FTS Appeals Official will advise the participants of the procedures and establish ground rules. The FTS Appeals Official may modify the rules and procedures during the session to adapt to changes in circumstances. The FTS session may include joint sessions with all parties, separate meetings, or both as determined appropriate in the sole judgment of the FTS Appeals Official.

.04 The FTS Appeals Official will use a FTS Session Report to assist in planning the FTS session and to report on developments during the session. The FTS Session Report will include a list of all issues approved for the FTS program, a description of the issues, the amounts in dispute, conference dates, a plan of action for the FTS session, and other information useful to the process as determined by the parties and the FTS Appeals Official. The FTS Appeals Official also will prepare and update an Agenda, which guides the communication, sets the order of issue discussion, poses questions to clarify the issue and guides the meetings. During the session, the FTS Appeals Official will provide decision makers from both parties with copies of the Agenda and the FTS Session Report.

.05 Generally, the FTS Appeals Official will consider only those issues outlined in the FTS Session Report, except by mutual agreement of the parties. If the taxpayer presents information during the session that the taxpayer had not previously presented during the audit, the FTS Appeals Official will adjust the targeted completion date to give the appropriate Service officials time to evaluate the information/documentation.

.06 During the session, the FTS Appeals Official may propose settlement terms for any or all issues. If the taxpayer accepts the FTS Appeals Official’s settlement proposal, but the LMSB Team Manager rejects it, the LMSB Territory Manager must review the rejection and either concur in writing, or accept the settlement proposal on behalf of LMSB. If the LMSB

Territory Manager concurs with the Team Manager’s rejection of the settlement proposal, and an acceptable alternative settlement cannot be reached, the issue will be closed out of the FTS program as unagreed.

.07 If the parties resolve any of the disputed issues at the conclusion of the session, the parties and the FTS Appeals Official shall sign the FTS Session Report acknowledging acceptance of the terms of settlement for purposes of preparing computations. The signature of the parties on the FTS Session Report does not constitute a final settlement, nor does it waive restrictions on assessment, terminate consents to extend periods of limitation, start the running of any periods of limitation, or constitute agreement to close the case.

.08 If applicable, the Service will report a proposed settlement reached as a result of FTS to the Joint Committee on Taxation in accordance with section 6405. The taxpayer acknowledges that the Service may reconsider a proposed settlement, as reflected in a signed FTS Session Report, upon receipt of comments on the proposed settlement from the Joint Committee on Taxation. If the taxpayer declines to agree with any changes by the Service upon reconsideration, LMSB will close the case unagreed and the taxpayer will retain all the usual rights to request Appeals consideration of any unagreed issues.

.09 If the parties fail to resolve any issue in FTS, the taxpayer retains the option of requesting that the issue be heard through the traditional Appeals process.

.10 Communications made during an FTS session are confidential. Employees of the Service involved with the FTS process must adhere to the confidentiality and disclosure provisions of the Internal Revenue Code, including sections 6103, 7213, and 7431. By signing the LMSB Fast Track Agreement, the taxpayer consents, pursuant to section 6103(c), to the disclosure of the taxpayer’s returns and return information pertaining to the issues considered in the FTS process to those persons named on the Agreement as participants in the process. Employees of the Service, the taxpayer and persons invited to participate by the Service or the taxpayer shall not voluntarily disclose information regarding any communication made during the FTS session, except as provided by statute, such as in sections 6103 and 7214(a)(8) and 5 U.S.C. § 574.

2003–25 I.R.B. 1046 June 23, 2003

(1) Issues in a taxpayer’s case designated for litigation;

(2) Issues in a taxpayer’s case under consideration for designation for litigation;

(3) Issues for which there is an absence of legal precedent;

(4) Issues for which there are conflicts between circuit courts of appeal;

(5) Issues included in the Technical Advisor Program or in the Appeals Technical Guidance Program;

(6) Issues for which the taxpayer has submitted a request for competent authority assistance;

(7) Issues for which the taxpayer has requested the simultaneous Appeals/ Competent Authority procedure described in section 8 of Rev. Proc. 2002–52, 2002–31 I.R.B. 242, or the corresponding provision of any successor guidance;

(8) “Whipsaw” issues, i.e., issues for which resolution with respect to one party might result in inconsistent treatment in the absence of the participation of another party;

(9) Cases worked at a Campus site in which a penalty was proposed, except those involving special electronic fund deposit penalties;

(10) Cases worked at a Campus site in which an offer-in-compromise was made;

(11) Collection Appeals Program cases; (12) Automated Collection System cases; (13) Frivolous issues, such as, but not limited to, those identified in Rev. Proc. 2001–41, 2001–2 C.B. 173, or any succeeding revenue procedure;

(14) Issues for which mediation would not be consistent with sound tax administration, e.g., issues governed by closing agreements, by res judicata, or by controlling precedent;

(15) Cases in which the taxpayer has failed to respond to Service communications and no documentation has been previously submitted for consideration by the examiner;

(16) Issues within the scope of Rev. Proc. 2002–18, 2002–1 C.B. 678 (methods of accounting); and

(17) Issues that have been identified in a Chief Counsel Notice, or equivalent publication, as excluded from the Fast Track Mediation process.

In addition to the cases described in (9) and (10), other cases worked at the Campus sites are generally not eligible for FTM.

.03 Fast Track Mediation should be initiated only after an issue has been fully de

tion Order 236, any such resolution shall not be used as precedent.

.02 With respect to FTS cases that are returned for traditional Appeals consideration, ex parte restrictions will not be imposed on intra-Appeals communications. Appeals management will take appropriate measures to ensure these cases are handled fairly and impartially.