SECTION 7. UNDER WHAT

CIRCUMSTANCES DOES EP OR EO DETERMINATIONS ISSUE DETERMINATION LETTERS?

Circumstances under which determination letters are issued

.01 Employee Plans or Exempt Organizations Determinations issues determination letters only if the question presented is specifically answered by a statute, tax treaty, or regulation, or by a conclusion stated in a revenue ruling, opinion, or court decision published in the Internal Revenue Bulletin.

In general .02 In employee plans and exempt organizations matters, the EP or EO Determinations office issues determination letters in response to taxpayers’ written requests on completed transactions. However, see section 13.08 of this revenue procedure. A determination letter usually is not issued for a question concerning a return to be filed by the taxpayer if the same question is involved in a return under examination.

In situations involving continuing transactions, such as whether an ongoing activity is an unrelated trade or business, EP or EO Technical would issue a ruling covering future tax periods and periods for which a return had not yet been filed.

2005–1 I.R.B. 137 January 3, 2005

EP or EO Determinations does not issue determination letters on the tax consequences of proposed transactions, except as provided in sections 7.03 and 7.04 below.

Under no circumstances will EP or EO Determinations issue a determination letter unless it is clearly shown that the request concerns a return that has been filed or is required to be filed.

In employee plans matters .03 In employee plans matters, the Employee Plans Determinations office issues determination letters on the qualified status of employee plans under §§ 401, 403(a), 409 and 4975(e)(7), and the exempt status of any related trust under § 501. See Rev. Proc. 2005–6, this Bulletin, Rev. Proc. 93–10 and Rev. Proc. 93–12.

In exempt organizations matters .04 In exempt organizations matters, the Exempt Organizations Determinations office issues determination letters involving:

(1) Qualification for exempt status of organizations described in §§ 501 and 521 to the extent provided in Rev. Proc. 90–27, 1990–1 C.B. 514, as modified by Rev. Proc. 2005–8;

(2) Updated exempt status letter to reflect changes to an organization’s name or address, or to replace a lost exempt status letter;

(3) Classification of private foundation status as provided in Rev. Proc. 76–34, 1976–2 C.B. 656;

(4) Reclassification of private foundation status, including update of private foundation status at the end of an organization’s advance ruling period;

(5) Recognition of unusual grants to certain organizations under §§ 170(b)(1)(A)(vi) and 509(a)(2);

(6) Requests for relief under § 301.9100–1 of the Procedure and Administration Regulations in connection with applications for recognition of exemption;

(7) Advance approval under § 4945 of organizations’ grant making procedures whose determination letter requests or applications disclose (or who have otherwise properly disclosed) a grant program or plans to conduct such a program;

(8) When requested with an application for exemption, whether an organization is exempt from filing annual information returns under § 6033 as provided in Rev. Procs. 83–23, 1983–1 C.B. 687, 95–48, 1995–2 C.B. 418, and 96–10, 1996–1 C.B. 577;

(9) Advance approval of voter registration activities described in § 4945(f), and

(10) Whether certain organizations qualify as exempt operating foundations described in § 4940(d).

Circumstances under which determination letters are not issued

Requests involving returns already filed

.05 EP or EO Determinations will not issue a determination letter in response to any request if—

(1) it appears that the taxpayer has directed a similar inquiry to EP or EO Technical;

(2) the same issue involving the same taxpayer or a related taxpayer is pending in a case in litigation or before an appeals office;

(3) the determination letter is requested by an industry, trade association, or similar group on behalf of individual taxpayers within the group (other than subordinate organizations covered by a group exemption letter); or

(4) the request involves an industry-wide problem.

.06 A request received by the Service on a question concerning a return that is under examination, will be, in general, considered in connection with the examination of the return. If a

January 3, 2005 138 2005–1 I.R.B.

Attach a copy of determination letter to taxpayer’s return

response is made to the request before the return is examined, it will be considered a tentative finding in any later examination of that return.

.07 A taxpayer who, before filing a return, receives a determination letter about any transaction that has been consummated and that is relevant to the return being filed should attach a copy of the determination letter to the return when it is filed.

Review of determination letters .08 Determination letters issued under sections 7.02 through 7.04 of this revenue procedure are not reviewed by EP or EO Technical before they are issued. If a taxpayer believes that a determination letter of this type is in error, the taxpayer may ask EP or EO Determinations to reconsider the matter or to request technical advice from EP or EO Technical as explained in Rev. Proc. 2005–5, page 170, this Bulletin.

(1) In employee plans matters, the procedures for review of determination letters relating to the qualification of employee plans involving §§ 401 and 403(a) are provided in Rev. Proc. 2005–6, Rev. Proc. 93–10 and Rev. Proc. 93–12.

(2) In exempt organizations matters, the procedures for the review of determination letters relating to the exemption from federal income tax of certain organizations under §§ 501 and 521 are provided in Rev. Proc. 90–27, as modified by Rev. Proc. 2005–8.