SECTION 7. SUBMITTING THE

REQUEST FOR TECHNICAL ADVICE

Memorandum of issues, facts, law, and arguments

Transaction involving multiple taxpayers

Copies of the taxpayer’s statement of deletions and power of attorney (Form 2848, Power of Attorney and Declaration of Representative (Rev. June 2008)) 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, 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 After the materials have been received, the branch of the Associate office responsible for conducting the pre-submission conference will contact the taxpayer, the field office, and field counsel to arrange a mutually convenient time for the parties to participate in the conference. The conference generally should be held within 15, but not more than 30, calendar days after the field office is contacted.

.07 Although pre-submission conferences are generally conducted by telephone, the parties may choose to conduct the conference in person.

.08 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 or on the Office of Chief Counsel, and cannot be relied upon as a basis for obtaining retroactive relief under the provisions of § 7805(b).

.10 During the pre-submission conference, the Office of Chief Counsel may raise new issues in addition to those submitted by the field office and the taxpayer.

.01 Every request for technical advice must include a memorandum that describes the facts, issues, applicable law, and arguments supporting the taxpayer’s position on the issues and the field office’s position on the issues. The field office will prepare this statement with the assistance of field counsel. The memorandum must include a statement of all the facts and the issues. If the taxpayer and the field office disagree about ultimate findings of fact or about the relevance of facts, all of the facts should be included with an explanation that highlights the areas of disagreement. The memorandum must include an explanation of the taxpayer’s position. This explanation must include a discussion of any relevant statutory provisions, tax treaties, court decisions, regulations, revenue rulings, revenue procedures, notices, and any other authority supporting the taxpayer’s position. The memorandum must also include a similar explanation of the field office’s position. Both the field office and the taxpayer should comment on any existing or pending legislation, tax treaties, regulations, revenue rulings, revenue procedures, or court decisions contrary to their respective positions. If either party determines that there are no authorities contrary to its position, that statement should be noted in the memorandum. The field office submits the request for technical advice.

When the taxpayer initiates the request for technical advice, the taxpayer must submit a written statement that incorporates the information provided above and the reasons for requesting technical advice. When the Service initiates the request for technical advice, the field office should notify the taxpayer that the Service is requesting technical advice and provide the taxpayer with a copy of the arguments supporting the Service’s position. The taxpayer has 5 calendar days to state, in writing, any factual disagreement. The field office will make every effort to reach agreement on the facts and specific points at issue. The taxpayer is encouraged to submit a written statement with an explanation of the taxpayer’s position and a discussion of the statutory provisions that support the taxpayer’s position.

.02 If the subject matter of the request involves a transaction among multiple taxpayers, the Associate office may issue a single TAM, but only if each taxpayer agrees to participate in the process, including the furnishing of Forms 8821, or other written taxpayer consent.

Sec. 7.02 2011–1 I.R.B. 97 January 3, 2011

Foreign laws and documents: submission of relevant foreign laws and documents in the official language and in English

Statement regarding interpretation of relevant income tax or estate tax treaty

Statement recommending information to be deleted from public inspection

.03 If applicable, the request for technical advice must include a copy of the relevant parts of all foreign laws, including statutes, regulations, administrative pronouncements, and any other relevant legal authority. This copy must be in the official language of the country involved and must be produced from an official publication of the foreign government or another widely available, generally accepted publication. If English is not the official language of the country involved, the submission must also include a copy of an English translation of the relevant parts of all foreign laws. The translation must be from an official publication of the foreign government or another widely available, generally accepted publication or from a certified English translation submitted in accordance with Section 7.03(2) of this revenue procedure. The taxpayer or the field office must identify the title and date of publication, including updates, of any widely available, generally accepted publication used by the taxpayer or its qualified translator as a source for the relevant parts of the foreign law. The taxpayer and the field office must inform the Associate office of the implications of any authority believed to interpret the foreign law, such as pending legislation, treaties, court decisions, notices, and administrative decisions.

(1) If the interpretation of a foreign law or foreign document is a material fact, the Associate office, at its discretion, may refuse to issue a TAM. This section applies whether or not the field office and the taxpayer dispute the interpretation of a foreign law or foreign document. The interpretation of a foreign law or foreign document means making a judgment about the import or effect of the foreign law or document that goes beyond its plain meaning.

(2) If applicable, a request for technical advice must include an accurate and complete certified English translation of the relevant parts of all contracts, wills, deeds, agreements, instruments, trust documents, proposed disclaimers, or other documents in a language other than English. If the taxpayer or the field office chooses to submit certified English translations of foreign laws, those translations are to be based on an official publication of the foreign government or another widely available, generally accepted publication. In either case, the translation must be that of a qualified translator and are to be attested to by the translator. The attestation is to contain: (1) the attestant’s name and address; (2) a statement that the translation submitted is a true and accurate translation of the foreign language document or law; and (3) a statement about the attestant’s qualifications as a translator and that attestant’s qualifications and knowledge regarding tax matters or any foreign law translated if the law is not a tax law.

.04 A request for technical advice involving the interpretation of a substantive provision of a relevant income tax or estate tax treaty must include a written statement addressing whether: (1) the tax authority of the treaty jurisdiction has issued a ruling on the same or similar issue for the taxpayer, 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 (related taxpayer)), or any predecessor; (2) the same or similar issue for the taxpayer, a related taxpayer, or any predecessor, is being examined, or has been settled, by the tax authority of the treaty jurisdiction or is otherwise the subject of a closing agreement in that jurisdiction; and (3) the same or similar issue for the taxpayer, a related taxpayer, or any predecessor, is being considered by the competent authority of the treaty jurisdiction.

.05 Every request for technical advice must include a statement of proposed deletions from public inspection. The text of TAMs are open to public inspection under § 6110(a). The Service deletes certain information from the text before it is made available to the public in order to protect the privacy of taxpayers. To help the Service make the necessary deletions, the taxpayer must provide a statement indicating the deletions desired. A taxpayer who wants only names, addresses, and identifying numbers deleted should state this in the deletion statement. A taxpayer who wants more information deleted must provide a copy of the TAM request and supporting documents on which the taxpayer has placed brackets around the material to be deleted plus a statement indicating the statutory basis under § 6110(c) for each proposed deletion. The deletion statement must not appear in the memorandum described in Section 7.01 of this revenue procedure. Instead, the deletion statement is to be made in a separate document that is signed and dated by the taxpayer or the taxpayer’s authorized representative. A stamped signature or faxed signature is not permitted. If the deletion statement is not submitted, the taxpayer will be notified and advised by the field office that the statement is required. If the

Sec. 7.03 January 3, 2011 98 2011–1 I.R.B.

Preparation of the memorandum; resolution of disagreements

Transmittal Form 4463, Request for Technical Advice

All supporting and additional documents

deletion statement is not received within 10 calendar days after the notification, the field office will use its best effort to provide the Associate office with an appropriate deletion statement. The taxpayer should follow this same process to propose deletions from any additional information submitted after the initial request for a TAM. An additional deletion statement is not required with each submission of additional information if the taxpayer’s initial deletion statement requests that only names, addresses, and identifying numbers are to be deleted and the taxpayer wants only the same information deleted from the additional information.

.06 The field office prepares the memorandum described in Section 7.01 of this revenue procedure with the assistance of field counsel and sends it to the taxpayer by mail or fax transmission. The taxpayer then will have 5 calendar days from the date of mailing or fax transmission to respond by providing a written statement specifying any disagreement on the facts and issues. A taxpayer who needs more than 5 calendar days must submit a written request for an extension of time, subject to the approval of the field office. The field office will make a determination on the request for extension as soon as reasonably possible. The request for extension will be considered denied unless the field office informs the taxpayer otherwise. The decision of the field office on whether to approve an extension, and the length of any extension granted, is final and may not be appealed. After the taxpayer’s response is received by the field office, the parties will have 10 calendar days to resolve remaining disagreements. If all disagreements about the statement of facts and issues are resolved, then the field office will prepare a single statement of those agreed facts and issues. If disagreements continue, both the taxpayer’s set of facts and issues and the field’s sets of facts and issues will be forwarded to the Associate office. The field office, with the assistance of field counsel, will prepare a memorandum for the Associate office highlighting the material factual differences, and provide a copy to the taxpayer. This memorandum will be forwarded with the initial request for technical advice. The taxpayer’s statement of facts and issues must be accompanied by the following declaration: “Under penalties of perjury, I declare that I have examined this information, including accompanying documents, and, to the best of my knowledge and belief, the information contains all the relevant facts relating to the request for technical advice, and such facts are true, correct, and complete.” This declaration must be signed in accordance with the requirements in section 7.01(15)(b) of Rev. Proc. 2011–1. The field office must submit this declaration with the initial request for technical advice. If no agreement regarding the facts is reached, the Associate office may rely on the facts presented by the field office.

The field office will offer the taxpayer an opportunity to participate in the development of the TAM. If the taxpayer participates in the process, the field office will continue to offer the taxpayer the opportunity to participate. If the taxpayer does not participate in a material stage of the process after being offered an opportunity, the Associate office will nonetheless process the request, and the taxpayer will have waived the right to participate in the development and issuance of the TAM, including the right to the conference described in section 9.

Under no circumstances will a taxpayer be treated as having waived its right to see the issued TAM or having waived its rights regarding disclosure and deletions described in Section 10.

A taxpayer’s failure to participate in the development of the memorandum will be considered a failure to participate in a material stage of the TAM process and result in a waiver of the right to the conference discussed in Section 9.

.07 The field counsel, with whom the TAM request was coordinated, must use Form 4463, Request for Technical Advice, for submitting a request for a TAM through TSS4510 to the Associate office. While the field office is responsible for preparing Form 4463, field counsel must submit the Form 4463 for a TAM request to the TSS4510 email address. To the extent feasible, the accompanying documents should also be submitted to the TSS4510 email address, followed by hard copy upon the request of the assigned branch of the Associate office.

.08 Field counsel should send additional or supporting documents that are not available in electronic form by fax to TSS4510 at 202–622–4817 or by express mail or private delivery service to the following address to avoid any delays in regular mail:

Sec. 7.08 2011–1 I.R.B. 99 January 3, 2011

Number of copies of request to be submitted

Internal Revenue Service Attn: CC:PA:LPD:TSS, Room 5329 1111 Constitution Avenue, NW Washington, DC 20224

Whenever possible, all documents should contain the case number and name of the Associate office attorney assigned to the pre-submission conference for the TAM request.

The field office must indicate on the Form 4463 the proper mailing address of the director to whom the Associate office should mail a copy of its reply to the TAM request under Section 10.06 of this revenue procedure.

.09 The field office must submit one paper copy of the request for a TAM to the address in Section 7.08 of this revenue procedure. If the TAM relates to a SB/SE, W&I, or TEGE taxpayer, the field office must send one paper copy to the Division Counsel of the operating division that has jurisdiction over the taxpayer’s tax return. If the TAM relates to a LB&I taxpayer, an electronic copy (no paper copy to follow) to “&LB&I HQ” email address should be sent. If the request is from an Appeals office, an electronic copy (no paper copy to follow) is sent to the TAM Coordinator in the Office of Tax Policy & Valuation with a copy to the Director TPP (Exam).

Power of attorney .10 Any authorized representative, as described in section 7.01(13) of Rev. Proc. 2011–1, whether or not enrolled to practice, must comply with Treasury Department Circular No. 230 (31 C.F.R. part 10 (2002)) and with the Conference and Practice Requirements of the Statement of Procedural Rules (26 C.F.R. §§ 601.501–601.509 (2002)). Form 2848, Power of Attorney and Declaration of Representative (Rev. June 2008), should be used. An original, a copy, or a fax transmission of the power of attorney is acceptable, if its authenticity is not reasonably disputed.

Service not barred from issuing 30-day letter while a TAM request is pending