SECTION 4. TYPES OF ISSUES

NOT SUBJECT TO THIS PROCEDURE

Alcohol, tobacco, and firearms taxes

Tax exempt and government entities

.01 The procedures for obtaining technical advice specifically applicable to federal alcohol, tobacco, and firearms taxes under subtitle E of the Code are currently under the jurisdiction of the Alcohol and Tobacco Tax and Trade Bureau of the Treasury Department.

.02 The procedures for requesting technical advice on issues under the jurisdiction of the Commissioner, Tax Exempt and Government Entities Division, are found in Rev. Proc. 2010–5, this Bulletin. The procedures under Rev. Proc. 2010–2, however, must be followed

Sec. 4.02 2010–1 I.R.B. 93 January 4, 2010

to request technical advice on issues pertaining to tax-exempt bonds, tax credit bonds, Indian tribal governments, federal, state, or local governments, mortgage credit certificates, and deferred compensation plans under § 457.

Farmers’ cooperatives .03 Even though the Associate Chief Counsel (Passthroughs and Special Industries) has jurisdiction over issues arising under § 521, the procedures under Rev. Proc. 2010–5 of this Bulletin and Rev. Proc. 2009–9, 2009–2 I.R.B. 256, must be followed.

Issues under § 301.9100 .04 A request for an extension of time for making an election or other application for relief under § 301.9100–3 of the Procedure and Administration Regulations is not submitted as a request for technical advice. Instead, the request is to be submitted as a request for a letter ruling, even if submitted after the examination of the taxpayer’s return has begun or after the issues in the return are being considered in Appeals or a federal court. Therefore, a request under § 301.9100 should be submitted under Rev. Proc. 2010–1 (this Bulletin), and the payment of the applicable user fee is determined under Appendix A of Rev. Proc. 2010–1.

Frivolous issues .05 Associate offices will not issue a TAM on frivolous issues. The field office will deny a taxpayer’s request for a TAM if it involves frivolous issues. For purposes of this revenue procedure, a “frivolous issue” is one without basis in fact or law or one asserting a position held by revenue ruling, case law, or any court to be frivolous or groundless. Examples of frivolous or groundless issues include but are not limited to: (1) positions that espouse frivolous “constitutional” claims, such as claims that the requirement to file tax returns and pay taxes constitutes an unreasonable search barred by the Fourth Amendment, violates Fifth and Fourteenth Amendment protections of due process, violates Thirteenth Amendment protections against involuntary servitude, or is unenforceable because the Sixteenth Amendment does not authorize nonapportioned direct taxes or because it was never ratified; and (2) positions asserting that income taxes are voluntary, that the term “income” is not defined in the Internal Revenue Code, or that the preparation and filing of income tax returns violates the Paperwork Reduction Act. Additional examples of frivolous or groundless issues may be found in IRS publications and other guidance (including but not limited to section 6.10 of Rev. Proc. 2010–1, Notice 2008–14, and I.R.M. Section 4.10.12.1.1) and as may be described on the IRS website at www.irs.gov/taxpros/article/0,,id=159853,00.html .

Issues in a docketed case .06 A field office may not request technical advice on an issue if the same issue of the same taxpayer (or of a related taxpayer within the meaning of § 267 or a member of an affiliated group of which the taxpayer is also a member within the meaning of § 1504) is in a docketed case for any taxable year. If a case is docketed for an estate tax issue of a taxpayer while a request for technical advice on the same issue of the same taxpayer is pending, the Associate office may issue the TAM only if the appropriate Appeals officer and field counsel agree, by memorandum, to the issuance of the TAM.

Collection issues .07 The Associate Chief Counsel (Procedure and Administration) does not provide technical advice on matters arising under the Internal Revenue Code and related statutes and regulations that involve the collection of taxes (including interest and penalties). With respect to such matters, the Associate Chief Counsel (Procedure and Administration) may issue alternative forms of advice.