SECTION 6. PRE-SUBMISSION

CONFERENCES

with field counsel through their respective supervisors. Any request for technical advice must be approved in writing by a director.

.02 While a case is under the jurisdiction of a director, a taxpayer may request that an issue be referred to the Associate office for technical advice. The request may be oral or written and should be directed to the field office. If the field office decides that a taxpayer’s request for referral of an issue to the Associate office for a TAM is unwarranted, the field office will notify the taxpayer. A taxpayer’s request for referral of an issue for technical advice will not be denied merely because the Associate office has already provided legal advice other than a TAM to the field office on the matter.

.03 The taxpayer may appeal the field office’s denial of the taxpayer’s TAM request by submitting to the field office, within 30 calendar days after notification that the request was denied, a written statement of the reasons why the matter should be referred to the Associate office. The statement should include a description of all pertinent facts (including any facts in dispute); a statement of the issue that the taxpayer would like to have addressed; a discussion of any relevant statutory, regulatory, or administrative provisions, tax treaties, case law, or other authority; and an explanation of the taxpayer’s position and the need for technical advice. Any extensions of the 30-day period must be requested in writing and must be approved by the director or, for LB&I, the field operations manager or, for Tax Exempt Bonds, the manager, field operations. Decisions on any extensions by the director, LB&I territory manager, or Tax Exempt Bonds territory manager, field operations are final and may not be appealed.

Upon receipt, the field office will refer the taxpayer’s written statement, along with the field office’s statement of why the issue should not be referred to the Associate office for technical advice, to the director for LB&I, the territory manager, or for Tax Exempt Bonds, the territory manager, for decision. The director, LB&I territory manager, or Tax Exempt Bonds territory manager will determine whether the issue should be referred for technical advice on the basis of the statements of the field office and the taxpayer. No conference will be held with the taxpayer or the taxpayer’s representative. If the director, LB&I territory manager, or Tax Exempt Bonds territory manager determines that a TAM is not warranted, the taxpayer will be informed in writing of the proposed denial of the request and the reasons for the denial (unless doing so would prejudice the Government’s best interests).

.04 The taxpayer may not appeal the decision of the director, LB&I territory manager, or Tax Exempt Bonds territory manager not to request a TAM. If the taxpayer does not agree with the proposed denial, all data on the issue for which a TAM has been sought, including the taxpayer’s written request and statements, will be submitted for review to the Director, LB&I; the Director, Examination, SB/SE; the Director, Specialty Tax, SB/SE; the Director, Compliance, W&I; the Director, Federal, State & Local Governments; the Director, Tax Exempt Bonds; the Director, Indian Tribal Governments; or Appeals Director, Tax Policy and Procedure (Exam). 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 person responsible for review may consult with the Associate office, if appropriate, and will notify the field office whether the proposed denial of the taxpayer’s request is approved or denied within 45 days of receiving all information. The field office will then notify the taxpayer. While the matter is under review, the field office will suspend any final decision on the issue (except when the delay would prejudice the Government’s interests). If the request for technical advice has been denied because the issue is frivolous as described in 4.05 above, this review process is not available.

Purpose .01 A pre-submission conference helps the field office, field counsel, the taxpayer, and the Associate office agree on the appropriate scope of the request for technical advice and the factual information and documents that must be included in the request. A pre-submission conference is not an alternative procedure for addressing the merits of the substantive positions advanced by the field office or by the taxpayer. During the pre-submission conference, the

Sec. 6.01 2012–1 I.R.B. 97 January 3, 2012

Pre-submission conferences are mandatory

Actions before a pre-submission conference

Initiating a pre-submission conference

Manner of transmitting pre-submission materials

parties should discuss the framing of the issues and the background information and documents that should be included in the formal submission of the request for technical advice.

.02 Pre-submission conferences include the taxpayer and representatives from the field office, field counsel, and the Associate office. These conferences are mandatory because they promote expeditious processing of requests for technical advice. If a request for technical advice is submitted without first holding a pre-submission conference, the Associate office will return the request for advice. Requests for technical advice can proceed even if a taxpayer declines to participate in a pre-submission conference.

.03 Before requesting a pre-submission conference, the field office and the taxpayer must exchange proposed statements of the pertinent facts and issues. The proposed statements should include any facts in dispute, the issues that the parties intend to discuss, any legal analysis and supporting authorities, and any other background information that the parties believe would facilitate the Associate office’s understanding of the issues to be discussed during the conference. Prior to the scheduled pre-submission conference, the field office and the taxpayer must submit to the Associate office their respective statements of pertinent facts and issues. The legal analysis provided in the parties’ statements should be sufficient to enable the Associate office to be reasonably informed about the subject matter. Failure of the taxpayer to provide a statement of pertinent issues and facts shall not be allowed to unduly delay the scheduling of the pre-submission conference. If it is not provided within a reasonable period of time, the conference may be scheduled without the statements.

The field office or the taxpayer must ensure that the Associate office receives a copy of any required power of attorney. Form 2848, Power of Attorney and Declaration of Representative (Rev. June 2008), should be used. See, Conference and Practice Requirements of the Statement of Procedural Rules (26 C.F.R. §§ 601.501–601.509 (2002)). The assigned branch of the Associate office must receive the pre-submission materials at least 10 business days before the conference is to be held.

.04 A request for a pre-submission conference must be submitted in writing by the field office, with the assistance of field counsel. The request should identify the Associate office expected to have jurisdiction over the request for a TAM and should include a brief explanation of the primary issue so that an assignment to the appropriate branch of an Associate office can be made. 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 an issue under the office of the Director, Abusive Tax Avoidance Transactions (ATAT) Examination, SB/SE, an issue under the office of the Director, Office of Tax Shelter Analysis (OTSA), LB&I, or an industry issue under the Office of Pre-Filing and Technical Guidance, LB&I, then the field office and field counsel should 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 Technical Guidance or Appeals Coordinated Issue (ACI) Program, the Appeals officer must coordinate with the Appeals Technical Guidance Coordinator or International Specialist Coordinator.

.05 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 the Technical Services Support Branch (TSS4510). TSS4510 will ensure delivery of the pre-submission materials to the appropriate Associate office. The TSS4510 email box cannot accept encrypted mail.

If documents are not electronically available, or if documents cannot reasonably be transmitted electronically, the request may be sent by fax to TSS4510 at 202–622–4817. If the documents are sent by fax, the director must also confirm the request in writing. Email or fax may be used to confirm the request. The Associate office will confirm receipt of the fax within one business day after receipt by the Associate office.

Sec. 6.01 January 3, 2012 98 2012–1 I.R.B.

Scheduling the pre-submission conference

Pre-submission conferences may be conducted in person

Pre-submission conference may not be taped

Discussion of substantive issues is not binding on the Service

New issues may be raised at pre-submission conference