SECTION 4. ON WHAT ISSUES

MAY OR MUST TAMs BE REQUESTED UNDER THIS PROCEDURE?

Issues under the jurisdiction of the Commissioner, Tax Exempt and Government Entities Division

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.

.01 Generally, the instructions of this revenue procedure apply to requests for TAMs on any issue under the jurisdiction of the Commissioner, Tax Exempt and Government Entities Division.

Farmers’ cooperatives .02 If an EP or EO Examinations, an EP or EO Determinations, an appeals office or a taxpayer requests technical advice on a determination letter under § 521 of the Code, the procedures under this revenue procedure, Rev. Proc. 2011–9, the next Bulletin, as well as § 601.201(n) of the Statement of Procedural Rules (26 CFR § 601.201(n) (2007)), must be followed.

Basis for requesting TAMs .03 Requests for TAMs are encouraged on any technical or procedural questions arising in connection with any case of the type described in section 3 at any stage of the proceedings in an EP or EO Examinations, an EP or EO Determinations or an appeals office case that cannot be resolved on the basis of law, regulations, or a clearly applicable revenue ruling or other published precedent.

Areas of mandatory technical advice

Basis for requests by EO Determinations

.04 Requests for § 7805(b) relief are mandatory TAMs with respect to all exempt organizations and employee plans matters.

Regarding exempt organizations matters, EO Examinations, EO Determinations and appeals offices are required to request a TAM on their exempt organization cases concerning qualification for exemption or foundation status for which there is no published precedent or for which there is reason to believe that non-uniformity exists. (Exemption application cases handled in EO Technical in accordance with Rev. Proc. 72–5, 1972–1 C.B. 709, Rev. Proc. 80–27, 1980–1 C.B. 677, or Rev. Proc. 2011–9, are not covered by this provision.) A request for a TAM is not required if the Director, EO Examinations proposes to revoke or modify (1) a letter ruling found to be in error or not in accord with the current views of the Service, or (2) a letter recognizing tax-exempt status issued by the headquarters office.

Regarding employee plans matters, a request for a TAM is required in cases concerning (1) proposed adverse or proposed revocation letters on collectively-bargained plans, (2) plans for which the Service is proposing to issue a revocation letter because of certain fiduciary actions that violate the exclusive benefit rule of § 401(a) of the Code and are subject to Part 4 of Subtitle B of Title I of the Employee Retirement Income Security Act of 1974, Pub. L. No. 93–406, 1974–3 C.B. 1, 43, or (3) amendments to defined contribution plans pursuant to Rev. Proc. 2004–15, 2004–1 C.B. 490, in connection with a waiver of the minimum funding standard and a request for a determination letter. See section 15 of Rev. Proc. 2011–6, page 195, this Bulletin, and section 3.04 of Rev. Proc. 2004–15, 2004–1 C.B. 490.

.05 The circumstances in which EO Determinations should seek Technical Advice in the course of processing applications for tax exemption are described in Revenue Procedure 2011–9, sections 5.03, 5.04, and 9.02. Technical Advice may also be requested by EO Determinations in connection with requests for determination letters where no pending

Sec. 4.05 2011–1 I.R.B. 171 January 3, 2011