SECTION 4. TYPES OF

ISSUES NOT SUBJECT TO THIS PROCEDURE

Alcohol, tobacco, and firearms taxes

Employment status determinations

.04 Regarding qualified retirement plan 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. 2016–6 of this Bulletin, and section 3.04 of Rev. Proc. 2004–15, 2004–1 C.B. 490.

.05 The circumstances in which the Director, Exempt Organizations Rulings & Agreements should seek Technical Advice in the course of processing applications for tax exemption are described in Rev. Proc. 2016–5, this Bulletin, section 5. Technical Advice may also be requested by EO Determinations in connection with requests for determination letters where no pending application for tax exemption is involved. A request for a TAM is not required if the Director, EO Examinations proposes to revoke or modify a letter recognizing tax-exempt status issued by the Service.

.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 Employment status determination letters issued pursuant to section 12.06 of Rev. Proc. 2016–1, of this Bulletin, are not subject to technical advice procedures.

Issues under § 301.9100 .03 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 must be submitted as a request for a letter ruling, even if

Sec. 4.03 January 4, 2016 106 Bulletin No. 2016–1

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. 2016–1, of this Bulletin, and the payment of the applicable user fee is determined under Appendix A of Rev. Proc. 2016–1. However, a request under § 301.9100 related to recharacterization of a Roth IRA should be submitted under Rev. Proc. 2016–4 of this Bulletin (including payment of the applicable user fee listed in section 6 of Rev. Proc. 2016–8). Requests for relief pertaining to exemption application matters involving §§ 505(c) and 508 are considered in the determination letter process under the jurisdiction of the Commissioner, Tax Exempt and Government Entities Division.

Frivolous issues .04 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. 2016–1, Notice 2010–33, and I.R.M. section 4.10.12.1.1).

Issues in a docketed case .05 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 .06 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.