SECTION 8. HOW ARE

PRE-SUBMISSION CONFERENCES SCHEDULED?

Pre-submission conferences are required for all requests for advice

Purpose of a pre-submission conference

Review of the proposed denial will be based solely on the written record; no conference will be held with the taxpayer or the taxpayer’s representative. The party responsible for review may consult with the Associate office, if necessary, and will notify the field office within 45 calendar days of receiving all the data regarding the request for a TAM or a TEAM whether the proposed denial is approved or disapproved. The field office will then notify the taxpayer.

While the matter is being reviewed, the field office will suspend action on the issue (except when the delay would prejudice the Government’s interests).

.04 If the request for a TAM or a TEAM concerns a “frivolous issue,” as described in section 6.02 of this revenue procedure, a TAM or a TEAM will not be given, and the examining agent or Appeals officer will deny the taxpayer’s request for referral. The taxpayer may appeal the decision of the examining agent or Appeals officer. If the territory manager or the Appeals area director determines that no TAM or TEAM will be sought, an expedited review procedure will be followed. This expedited review procedure will consist of the following:

(1) the territory manager or the Appeals area director will inform the appropriate official (the Industry Director, LMSB; the Examination Area Director, SB/SE; the Director, Compliance, W&I; the Director, International, LMSB; the Director, Federal, State, and Local Governments; the Director, Tax Exempt Bonds; the Director, Indian Tribal Governments; the Appeals Director, Technical Services; the Chief, Employment Tax Examination, SB/SE; the Chief, Estate and Gift Tax Examination, SB/SE; the Chief, Excise Tax Examination, SB/SE; or the Chief, International Examination, SB/SE) of the request for review and the basis for the denial, but will not forward the taxpayer’s written request and statements, unless requested to do so by the official;

(2) the field office will not suspend action on the issue;

(3) within 15 calendar days, the official will notify the territory manager or Appeals area director whether the proposed denial is approved or disapproved. The official may also determine that the expedited process is not warranted and request all of the information supplied by the taxpayer and allow suspension of action on the item while the denial is reviewed; and

(4) the field office will notify the taxpayer in writing of the result of the review of the denial.

.01 In an effort to promote expeditious processing of a request for a TAM or a TEAM, a pre-submission conference is mandatory. The Associate office must confer with the field office and field counsel (and in some cases the taxpayer) prior to the time a request for a TAM or a TEAM is submitted to the Associate office. If a request for a TAM or a TEAM is submitted without first holding a pre-submission conference, the request for advice will be returned to the requesting party. A request for a pre-submission conference should be made only after the field office determines that it likely will request a TAM or a TEAM. Before requesting a pre-submission conference, the field office must contact the taxpayer and afford the taxpayer an opportunity to participate in the process by permitting the taxpayer to prepare a statement in accordance with section 8.04 of this revenue procedure. Although taxpayer participation in the conference is not required for a TAM, it is required for a TEAM (except for the two situations described in section 1.03 of this revenue procedure where taxpayer agreement is not a prerequisite for a TEAM). If the request for a TAM or a TEAM will include issues requiring the involvement of more than one Associate office, representatives from each Associate office involved must participate in the pre-submission conference.

.02 A pre-submission conference is intended to facilitate agreement between the parties as to the appropriate scope of the request for a TAM or a TEAM, the factual information and documents to be included in the request, any collateral issues that either should or should not be included in the request, and any other substantive or procedural considerations that will allow the Associate office to provide the parties with a TAM or a TEAM as expeditiously as possible.

Sec. 8.02 2006–1 I.R.B. 97 January 3, 2006

Request for a pre-submission conference must be submitted in writing by the field office

Certain information required to be submitted to the Associate office prior to the pre-submission conference

A pre-submission conference is not intended to create an alternative procedure for determining the merits of the substantive positions advocated by the field office or by the taxpayer.

During the pre-submission conference, the parties should determine whether the issue(s) is appropriate for a TEAM. The parties should discuss the framing of the issue(s), what background information and documents are required and when the request for TAM or TEAM will be submitted to the Associate office. Where more than one Associate office will be involved in responding to a proposed TEAM, each must agree that the request is suitable for TEAM procedures and that the necessary coordination can be provided within the TEAM time frames.

If the parties do not agree that the TEAM procedures are appropriate, then the request will be processed subject to the procedures in this revenue procedure for a TAM, except that taxpayer agreement is not required for the two situations described in section 1.03 of this revenue procedure.

.03 A request for a pre-submission conference for a TAM or a TEAM must be submitted in writing by the field office. The request should identify the Associate office expected to have jurisdiction over the request for a TAM or a TEAM. The request should include a brief explanation of the primary issue so that an assignment to the appropriate branch of an Associate office can be made. The field office is required to coordinate with field counsel regarding all pre-submission conferences, regardless of whether a TAM or a TEAM is being requested. If the request is submitted by Appeals, field counsel assignments will be subject to the ex parte rules set forth in section 1001(a)(4) of the Internal Revenue Service Restructuring and Reform Act of 1998, Pub. L. No. 105–206, and Rev. Proc. 2000–43, 2000–2 C.B. 404. If the request involves a designated issue, an issue under the office of the Director, ATAT Examination, SB/SE, an issue under the office of the Director, OTSA, LMSB, or an industry issue under the Office of Pre-Filing and Technical Guidance, LMSB, the field office and field counsel are strongly encouraged to coordinate with the technical advisor and field counsel contact. If the request is from Appeals and involves a coordinated issue or emerging issue under the Appeals Industry Specialization Program (ISP) or Appeals Coordinated Issue (ACI) Program, the Appeals officer must coordinate with the Appeals ISP/ACI Coordinator.

The field office requests pre-submission conferences for both TAMs and TEAMs by having their field counsel transmit the request by email to the TSS4510 email box. Counsel must send this request to take advantage of the firewall protection for interoffice email within Chief Counsel. The TSS4510 email box cannot accept encrypted mail. Alternatively, the request may be sent by fax to the Technical Services Support Branch at 202–622–4817 ; the director or Appeals area director must also confirm the request in writing to the Technical Services Support Branch. Email or fax may be used to confirm the request. The Associate office will confirm receipt of the fax within one working day after receiving the fax.

.04 Prior to the scheduled pre-submission conference, the field office and the taxpayer must share proposed statements of the pertinent facts (including any facts in dispute); statements of the issues that the parties would like to discuss; and any legal analysis, authorities, or background documents that the parties believe would facilitate the Associate office’s understanding of the issues to be discussed at the conference. After drafting the statements of the issues and facts, and prior to the scheduled pre-submission conference, the field office and the taxpayer must submit to the Associate office the statements of the pertinent facts and the statements of the issues that the parties would like to discuss. 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 a TAM or a TEAM, but it should allow the Associate office to become reasonably informed regarding the subject matter prior to the conference. The field office or the taxpayer should ensure that the Associate office receives a copy of any required power of attorney, preferably on Form 2848, Power of Attorney and Declaration of Representative (Rev. March 2004).

If the pre-submission conference pertains to a request for a TAM, the assigned branch of the Associate office must receive the pre-submission materials at least ten working days prior to the conference.

Sec. 8.02 January 3, 2006 98 2006–1 I.R.B.

Manner of transmitting pre-submission materials

Associate office attorney will contact the field office and field counsel to arrange the pre-submission conference

Pre-submission conferences for TAMs and TEAMs generally conducted by telephone

Pre-submission conference may not be taped

Discussion of substantive issues is not binding on the Service

If the pre-submission conference pertains to a request for a TEAM, the assigned branch of the Associate office must receive the pre-submission materials at least five calendar days before the conference. Failure to timely submit pre-submission materials will result in the case being processed as a TAM rather than a TEAM.

.05 Regardless of whether the pre-submission conference pertains to a request for a TAM or a TEAM, in order to obtain the protection of taxpayer information offered by the Chief Counsel Intranet “firewall,” the pre-submission materials must be electronically transmitted by field counsel to TSS4510. Thus, the field office must work with field counsel to submit the required materials via email to TSS4510. TSS4510 will make sure the pre-submission materials get delivered to the Associate office assigned to the request for a pre-submission conference. Copies of the taxpayer statement of deletions, penalties of perjury statement and Form 2848, Power of Attorney and Declaration of Representative (Rev. March 2004), if not electronically available, should be transmitted by fax to the Associate office attorney assigned to the case.

The field office should send the original of the materials sent by fax, and any supporting materials that cannot reasonably be transmitted electronically, to the Associate office attorney assigned to the case by express mail or private delivery service in order to avoid any delays in regular mail.

.06 If a TEAM is requested, the branch of the Associate office assigned responsibility for conducting the pre-submission conference will contact the field office and field counsel within two working days of receiving the request to schedule the conference. The conference will be held within 15 calendar days of the assigned branch’s call to the field. Because taxpayer participation in the pre-submission conference is required, the field office is responsible for coordinating with the taxpayer as well as any other Service personnel whose participation in the conference the field office believes would be appropriate.

If a TAM is requested, or if it is unclear whether the request is for a TAM or a TEAM, the branch of the Associate office assigned responsibility for conducting the pre-submission conference will contact the field office and field counsel within five working days after it receives the request to arrange a mutually convenient time for the parties to participate in the conference. The conference generally should be held within 30 calendar days after the field office is contacted.

.07 Generally, pre-submission conferences for TAMs and TEAMs will be held by telephone, unless the parties specifically request a meeting in person. In no event will a request for an in-person pre-submission conference on a TEAM be allowed to delay the conference beyond the 15-day period set forth above in section 8.06 of this revenue procedure.

.08 Because pre-submission conference procedures are informal, no tape, stenographic, or other verbatim recording of a conference may be made by any party.

.09 Any discussion of substantive issues at a pre-submission conference is advisory only, is not binding on the Service in general or on the Office of Chief Counsel in particular, and cannot be relied upon as a basis for obtaining retroactive relief under the provisions of § 7805(b). During the pre-submission conference, the Office of Chief Counsel may raise new issues or reach an answer without addressing any of the issues submitted by the agent and the taxpayer.

Sec. 8.09 2006–1 I.R.B. 99 January 3, 2006