SECTION 3. WHAT IS THE

DEFINITION OF TECHNICAL ADVICE?

EO Examinations Area manager, an EP or EO Determinations manager, or an Appeals Area Director requests a TAM regarding a tax matter. Similarly, this revenue procedure may be used by another Operating Division of the Service involved in an examination where EP Technical does not have audit jurisdiction but has interpretive jurisdiction as enumerated in section 6.02 of Rev. Proc. 2010–4, page 122 of this Bulletin.

.02 Although taxpayer participation during all stages of the process is preferred, it is not required in order to request technical advice.

This revenue procedure is a general update of Rev. Proc. 2009–5, 2009–1 I.R.B. 161, which contains the general procedures for technical advice requests for matters within the jurisdiction of the Commissioner, Tax Exempt and Government Entities Division. A new subsection 05 is added to Section 4 with respect to basis for requests by EO determinations under Revenue Procedure 2009–9, 2009–2 I.R.B 256.

“Technical advice” means advice or guidance in the form of a memorandum furnished by the Employee Plans Technical or Exempt Organizations Technical office, (hereinafter referred to as “EP or EO Technical”), upon the request of an EP or EO Examinations Area manager, an EP or EO Determinations manager or an Appeals Area Director submitted in accordance with the provisions of this revenue procedure in response to any technical or procedural question that develops during any proceeding on the interpretation and proper application of tax law, tax treaties, regulations, revenue rulings, notices or other precedents published by the headquarters office to a specific set of facts. (The references in this revenue procedure to an Appeals Area Director or an appeals office include, when appropriate, an Appeals Area Director, LMSB, a Deputy Appeals Area Director, LMSB, a Deputy Appeals Area Director, an Appeals Team Manager and include in employee plans matters another Operating Division of the Service described in the last sentence of section 1.01 above.) Such proceedings include (1) the examination of a taxpayer’s return, (2) consideration of a taxpayer’s claim for refund or credit, (3) a taxpayer’s request for a determination letter, (4) any other matter involving a specific taxpayer under the jurisdiction of EP or EO Examinations, EP or EO Determinations, or an appeals office or (5) processing and considering nondocketed cases of a taxpayer in an appeals office. However, they do not include cases in which the issue in the case is in a docketed case for any year.

For purposes of TAMs, the term “taxpayer” includes all persons subject to any provision of the Internal Revenue Code (including tax-exempt entities such as governmental units which issue municipal bonds within the meaning of § 103), and when appropriate, their representatives. However, the instructions and the provisions of this revenue procedure do not apply to requests for TAMs involving any matter pertaining to tax-exempt bonds or to § 457 plans maintained by state or local governments or tax-exempt organizations or to mortgage credit certificates. Instead, in those instances the procedures under Rev. Proc. 2010–2, page 90, this Bulletin must be followed.

TAMs help Service personnel resolve complex issues and help establish and maintain consistent holdings throughout the Internal Revenue Service. An EP or EO Examinations, an EP or EO Determinations or an appeals office may raise an issue in any tax period, even though technical advice may have been requested and furnished for the same or similar issue for another tax period.

Technical advice does not include oral or written legal advice furnished to the EP or EO Examinations or the EP or EO Determinations or the appeals office, other than advice furnished pursuant to this revenue procedure. In accordance with section 12.01 of this revenue procedure, a taxpayer’s request for referral of an issue to the headquarters office for technical advice will not be denied merely because EP or EO Technical has already provided legal advice, other than advice furnished pursuant to this revenue procedure, to the EP or EO Examinations or the EP or EO Determinations or the appeals office on the matter.

Although taxpayer participation during all stages of the process is preferred, generally, it is not required in order to request a TAM.

Sec. 1 January 4, 2010 168 2010–1 I.R.B.