SECTION 9. HOW

ARE PRE-SUBMISSION CONFERENCES SCHEDULED?

Pre-submission conference generally is permitted when a request for TAM is likely and all parties agree to request the conference

.04 If EP Examinations requests technical advice from EP Technical for a case with either an unagreed prohibited transaction, as defined in § 4975(c)(1) and ERISA 406(a), or a violation of the exclusive benefit rule of § 401(a)(2) or ERISA 404(a)(1)(A), EP Examinations must submit a Form 6212-B to the Department of Labor prior to submitting the request for technical advice to EP Technical.

.01 In an effort to promote expeditious processing of requests for a TAM, EP or EO Technical generally will discuss the issue(s) with the EP or EO Examinations or the EP or EO Determinations or the appeals office and the taxpayer prior to the time any request for technical advice is formally submitted to EP or EO Technical. In all cases, other than mandatory TAMs which are described in section 4.04, a pre-submission conference is mandatory.

A request for a pre-submission conference should be made, however, only after the EP or EO Examinations or the EP or EO Determinations or the appeals office determines that it will likely request a TAM.

If the request for a TAM will involve more than one function, representatives from each function involved must participate in the pre-submission conference.

Sec. 9.01 2013–1 I.R.B. 177 January 2, 2013

Purpose of pre-submission conference

Request for pre-submission conference must be submitted in writing by the EP or EO Examinations or the EP or EO Determinations or the appeals office

Group will contact the EP or EO Examinations or the EP or EO Determinations or the appeals office to arrange the pre-submission conference

Pre-submission conference generally held by telephone

Certain information required to be submitted to EP or EO Technical prior to the pre-submission conference

Manner of submitting pre-submission materials

Pre-submission conference may not be recorded

.02 A pre-submission conference is intended to facilitate agreement between the parties as to the appropriate scope of the request for a TAM or any collateral issues that either should or should not be included in the request for a TAM, and any other substantive or procedural considerations that will allow EP or EO Technical to provide the parties with a TAM as expeditiously as possible.

A pre-submission conference is not intended to create an alternate procedure for determining the merits of the substantive positions advocated by the EP or EO Examinations or the EP or EO Determinations or the appeals office or by the taxpayer. Rather, the conference is intended only to facilitate the overall process.

.03 A request for a pre-submission conference must be submitted in writing by the EP or EO Examinations or the EP or EO Determinations or the appeals office. The request should identify the office expected to have jurisdiction over the request for a TAM. The request should include a brief explanation of the primary issue so that an assignment to the appropriate group can be made.

.04 Within 5 working days after it receives the request, the group assigned responsibility for conducting the pre-submission conference will contact the EP or EO Examinations or the EP or EO Determinations or the appeals office to arrange a mutually convenient time for the parties to meet (generally by telephone) in the EP or EO Technical office. The conference generally should be held within 30 calendar days after the EP or EO Examinations or the EP or EO Determinations or the appeals office is contacted. The EP or EO Examinations or the EP or EO Determinations or the appeals office will be responsible for coordinating with the taxpayer as well as with any other Service personnel whose attendance the EP or EO Examinations or the EP or EO Determinations or the appeals office believes would be appropriate.

.05 Generally, pre-submission conferences for TAMs are held by telephone with EP or EO Technical unless the parties specifically request that the conference be held in person.

.06 At least 10 working days before the scheduled pre-submission conference, the EP or EO Examinations or the EP or EO Determinations or the appeals office and the taxpayer should submit to EP or EO Technical:

(1) a statement of the pertinent facts (including any facts in dispute);

(2) a statement of the issues that the parties would like to discuss; and

(3) any legal analysis, authorities, or background documents that the parties believe would facilitate EP or EO Technical’s understanding of the issues to be discussed at the conference. The legal analysis provided for the pre-submission conference need not be as fully developed as the analysis that ultimately will accompany the request for a TAM. See section 10 of this revenue procedure. However, it should allow EP or EO Technical to become reasonably informed regarding the subject matter of the conference prior to the meeting. The EP or EO Examinations or the EP or EO Determinations or the appeals office or the taxpayer should ensure that the EP or EO Technical office receives a copy of any required power of attorney, on Form 2848, Power of Attorney and Declaration of Representative .

.07 The pre-submission materials must be submitted electronically. In order to obtain the protection of taxpayer information offered by the Service’s Intranet “firewall,” the pre-submission materials must be electronically transmitted by the Service office assigned to the request.

To the extent that supporting materials cannot be submitted electronically, such materials should be sent by fax or by express mail or private delivery service to the tax law specialist or actuary in Headquarters assigned to the request. In such cases, the appropriate provisions of section 10.05 should be followed.

.08 Because pre-submission conference procedures are informal, no recording may be made by any party.

Sec. 9.02 January 2, 2013 178 2013–1 I.R.B.

Discussion of substantive issues is not binding on the Service