Procedures Revised for Furnishing Technical Advice

Superseded by Rev. Proc. 2023-2

Supersedes Rev. Proc. 2021-2

26 CFR 601.105: Examination of returns and claims for refund, credit or abatement; determination of correct tax liability.

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TABLE OF CONTENTS

SECTION 1. PURPOSE AND AUTHORITY

SECTION 2. DEFINITIONS

SECTION 3. THE NATURE OF TECHNICAL ADVICE

SECTION 4. TYPES OF ISSUES NOT SUBJECT TO THIS PROCEDURE

SECTION 5. INITIATING A REQUEST FOR TECHNICAL ADVICE

SECTION 6. PRE-SUBMISSION CONFERENCES

SECTION 7. SUBMITTING THE REQUEST FOR TECHNICAL ADVICE

SECTION 8. INITIAL PROCESSING OF THE REQUEST FOR TECHNICAL ADVICE BY THE ASSOCIATE OFFICE

SECTION 9. TAXPAYER CONFERENCES

SECTION 10. PREPARATION OF THE TECHNICAL ADVICE

SECTION 11. WITHDRAWAL OF REQUESTS FOR TECHNICAL ADVICE

SECTION 12. USE OF THE TECHNICAL ADVICE

SECTION 13. RETROACTIVITY AND RELIANCE

SECTION 14. HOW MAY RETROACTIVE EFFECT BE LIMITED?

SECTION 15. SIGNIFICANT CHANGES MADE TO REV. PROC. 2021-2

SECTION 16. EFFECT ON OTHER DOCUMENTS

SECTION 17. EFFECTIVE DATE

DRAFTING INFORMATION

INDEX

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SECTION 1. PURPOSE AND AUTHORITY

Description of purpose

.01 Technical advice. This revenue procedure explains when and how an Associate office provides technical advice, conveyed in a technical advice memorandum (TAM). It also explains the rights that a taxpayer has when a field office requests a TAM regarding a tax matter. Rev. Proc. 2021-2 superseded.

Updated annually

.02 This revenue procedure is updated annually as the second revenue procedure of the year, but it may be modified, amplified, or clarified during the year.

SECTION 2. DEFINITIONS

Operating division

.01 The term “operating division” means (1) the Large Business & International Division (LB&I); (2) the Small Business/Self-Employed Division (SB/SE); (3) the Wage and Investment Division (W&I); and (4) the Tax Exempt and Government Entities Division (TE/GE).

Director

.02 The term “Director” means (1) the Practice Area Director or the Director, Field Operations (LB&I) for the taxpayer's practice area; (2) an Area Director, SB/SE; (3) the Director, Return Integrity & Compliance Services (W&I); (4) the Director, International Compliance, Strategy and Policy; (5) the Director, Employee Plans Examinations; (6) the Director, Employee Plans Rulings & Agreements; (7) the Director, Exempt Organizations Examinations; (8) the Director, Exempt Organizations Rulings & Agreements; (9) the Director, Government Entities; (10) the Appeals Area Director; (11) the Appeals Director, Technical Guidance; (12) the Appeals Director, International Operations; or (13) any official to whom the authority normally exercised by a Director has properly been delegated.

Appeals

.03 The terms “Appeals” and “Appeals office” refer to the Internal Revenue Service Independent Office of Appeals.

Appeals officer

.04 The term “Appeals officer” means the Appeals officer assigned to the taxpayer's case and can include an Appeals Team Case Leader or settlement officer.

Taxpayer

.05 The term “taxpayer” means any person subject to any provision of the Internal Revenue Code, including an issuer of obligations the interest on which is excluded from gross income under § 103, and issuers of other bonds that provide a tax subsidy.

Associate office

.06 The term “Associate office” means (1) the Office of Associate Chief Counsel (Corporate); (2) the Office of Associate Chief Counsel (Financial Institutions and Products); (3) the Office of Associate Chief Counsel (Income Tax and Accounting); (4) the Office of Associate Chief Counsel (International); (5) the Office of Associate Chief Counsel (Passthroughs and Special Industries); (6) the Office of Associate Chief Counsel (Procedure and Administration); or (7) the Office of Associate Chief Counsel (Employee Benefits, Exempt Organizations, and Employment Taxes).

Field office

.07 The term “field office” means personnel in any examination or Appeals office. For qualified retirement plan and exempt organizations matters, the term “field office” also means personnel in any Rulings & Agreements office.

Field counsel

.08 The term “field counsel” means any attorney assigned to the Division Counsel for an operating division who is not a member of Division Counsel Headquarters.

SECTION 3. THE NATURE OF TECHNICAL ADVICE

When advice furnished

.01 Technical advice is advice furnished by an Associate office in a memorandum that responds to any request, submitted under this revenue procedure, for assistance on any technical or procedural question that develops during any proceeding before the Internal Revenue Service (Service). The field office may request a TAM when the application of the law to the facts involved is unclear. The question must be on the interpretation and proper application of any legal authority, including legislation, tax treaties, court decisions, regulations, notices, revenue rulings, revenue procedures, or announcements to a specific set of facts that concerns the treatment of an item in a tax period under examination or in Appeals. A TAM may not be requested for prospective or hypothetical transactions (except for certain TAMs in connection with a taxpayer's request for a determination letter on a matter within the jurisdiction of the Commissioner, Tax Exempt and Government Entities Division, pursuant to Rev. Proc. 2022-4 or 2022-5). Proceedings before the Service include: (1) the examination of a taxpayer's return; (2) the consideration of a taxpayer's claim for credit or refund; (3) any matter under examination or in Appeals pertaining to tax-exempt bonds, tax credit bonds, or mortgage credit certificates; and (4) any other matter involving a specific taxpayer under the jurisdiction of a Director. Technical advice does not include any oral legal advice or any written legal advice furnished to the field office that is not submitted and processed under this revenue procedure.

TAM may be requested even if previous TAM on same matter was issued

.02 The field office may request a TAM on an issue in any tax period, even if a TAM was requested and furnished for the same or similar issue for another tax period. The field office may also request a TAM on an issue even if Appeals disposed of the same or similar issue for another tax period of the same taxpayer.

Taxpayer participation

.03 Taxpayers will be afforded an opportunity to participate in the technical advice process. Taxpayer participation is preferred but not required in order to process a TAM. A taxpayer's failure to participate in stages identified as “material,” however, will constitute waiver of the taxpayer's right to the taxpayer 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.

Areas of mandatory technical advice on employee plans matters

.04 Regarding qualified retirement plan matters, a request for a TAM is required in cases concerning 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 as amended (ERISA).

Basis for requests by Exempt Organizations Rulings & Agreements

.05 The circumstances in which Exempt Organizations Determinations should seek technical advice in the course of processing applications for tax exemption are described in Rev. Proc. 2022-5, this Bulletin, section 3.03. Technical advice may also be requested by Exempt Organizations 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, Exempt Organizations Examinations proposes to revoke or modify a letter recognizing tax-exempt status issued by the Service.

SECTION 4. TYPES OF ISSUES NOT SUBJECT TO THIS PROCEDURE

Alcohol, tobacco, and firearms taxes

.01 The procedures for obtaining technical advice that apply to Federal alcohol, tobacco, and firearms taxes under subtitle E of the Code are under the jurisdiction of the Alcohol and Tobacco Tax and Trade Bureau of the Department of the Treasury.

Employment status determinations

.02 Employment status determination letters issued pursuant to section 12.04 of Rev. Proc. 2022-1, 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 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. 2022-1, of this Bulletin, and the payment of the applicable user fee is determined under Appendix A of Rev. Proc. 2022-1. However, a request under § 301.9100 related to recharacterization of a Roth IRA should be submitted under Rev. Proc. 2022-4 of this Bulletin. 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. See Revenue Procedure 2022-5, this Bulletin.

Frivolous issues

.04 Associate offices will not issue a TAM on frivolous issues. The field office will deny a taxpayer's request that it consider requesting technical advice if the taxpayer's request involves frivolous issues. For purposes of this revenue procedure, a “frivolous issue” is one without basis in fact or law or one that asserts a position that courts have held frivolous or groundless. Examples of frivolous or groundless issues may be found in Service publications and other guidance (including, but not limited to, section 6.10 of Rev. Proc. 2022-1, Notice 2010-33, and Exhibit 25.25.10-1, Frivolous Arguments).

Issues in a docketed case

.05 Associate offices will not issue 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) will not issue 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.

Request for relief under § 7805(b) relating to matters handled by TE/GE

.07 Requests for relief under § 7805(b) relating to the revocation or modification of determination letters or letter rulings issued by TE/GE are handled in accordance with the procedures in sections 23 and 29 of Rev. Proc. 2022-4, and section 12 of Rev. Proc. 2022-5, this Bulletin.

SECTION 5. INITIATING A REQUEST FOR TECHNICAL ADVICE

Initiating a request for technical advice

.01 Because technical advice is issued to assist field offices, it is the field office that determines whether to request it. In determining whether to request technical advice, the field office should consider whether other forms of guidance, e.g., published guidance, generic advice, or some other form of advice, would be more appropriate. Additionally, before requesting technical advice, the field office must request assistance and a recommendation from field counsel. If the field office disagrees with field counsel's recommendation, the field office must seek reconciliation with field counsel through their respective supervisors. A field office's request for technical advice must be approved in writing by a Director. If technical advice is requested from the Associate Chief Counsel (Employee Benefits, Exempt Organizations, and Employment Taxes) 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), a Form 6212-B must be submitted to the Department of Labor prior to submitting the request for technical advice.

Taxpayer may request referral for technical advice

.02 While a case is under the jurisdiction of a Director, a taxpayer may request that the field office refer an issue to the Associate office for technical advice. The taxpayer's 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.

Appeal of field office denial of TAM referral request

.03 The taxpayer may appeal the field office's denial of the taxpayer's request for referral 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 legal authority, including legislation, tax treaties, court decisions, regulations, notices, revenue rulings, revenue procedures, or announcements; 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 the Tax Exempt Bonds Program Manager. Decisions on any extensions by the Director, the LB&I Territory Manager, or in the case of Tax Exempt Bonds, the Program Manager, 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 or in the case of Tax Exempt Bonds, the Program Manager, for decision. The Director or in the case of Tax Exempt Bonds, the Program 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, or in the case of Tax Exempt Bonds, the Program 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 interests).

The decision of the Director or the Tax Exempt Bonds Program Manager may be reviewed but not appealed

.04 The taxpayer may not appeal the decision of the Director, or in the case of Tax Exempt Bonds, the Program 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, Return Integrity & Compliance Services, W&I; the Director, Government Entities; the Appeals Director, Policy Planning Quality & Analysis; or the Commissioner, Tax Exempt and Government Entities Division (who will review the proposed denial through the Director, Employee Plans; the Director, Exempt Organizations; or, if appropriate, the Appeals Director, Policy Planning Quality & Analysis). 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 section 4.04 of this revenue procedure, this review process is not available.

SECTION 6. PRE-SUBMISSION CONFERENCES

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 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.

Pre-submission conferences are mandatory

.02 Pre-submission 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. Pre-submission conferences include the taxpayer and representatives from the field office, field counsel, and the Associate office. Requests for technical advice can proceed, however, even if a taxpayer declines to participate in a pre-submission conference.

Actions before 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 taxpayer's 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, should be used.

Pre-submission materials include the field office and taxpayer's statements (discussed above) and any required power of attorney for the taxpayer. The assigned Associate office must receive the pre-submission materials at least 10 business days before the conference is to be held.

Initiating a pre-submission conference

.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 within the appropriate 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. 2012-18, 2012-10 I.R.B. 455. If the request involves an issue under the office of the Director of the Office of Promoter Investigations, the field office and field counsel should coordinate with SB/SE Division Counsel headquarters. If the request involves an issue under the Office of Tax Shelter Analysis (OTSA), LB&I, then the field office and field counsel should coordinate with LB&I Division Counsel headquarters. If the request is from Appeals and involves a coordinated issue or emerging issue under Appeals Technical Guidance or International Operations or Appeals Coordinated Issue (ACI) Program, the Appeals officer must coordinate with the Appeals Technical Guidance or International Operations Technical Specialist.

Manner of transmitting pre-submission materials

.05 The request for a pre-submission conference and pre-submission materials should 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 for a pre-submission conference and pre-submission materials may be sent by fax to TSS4510 at 855-592-8976 or by express mail or private delivery service to the following address to avoid any delays in regular mail:

Scheduling the pre-submission conference

.06 After the pre-submission materials have been received, 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.

Pre-submission conferences may be conducted in person

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

Pre-submission conference may not be taped

.08 No tape, stenographic, or other verbatim recording of a conference may be made by any party.

Discussion of substantive issues is not binding on the Service

.09 Any discussion of substantive issues at a pre-submission conference is advisory only, is not binding on the Service in general or on the Office of Chief Counsel in particular, and cannot be relied upon as a basis for obtaining retroactive relief under the provisions of § 7805(b).

New issues may be raised at pre-submission conference

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

Power of attorney

.11 Form 2848, Power of Attorney and Declaration of Representative, should be used to provide the representative's authority (Part I of Form 2848, Power of Attorney) and the representative's qualification (Part II of Form 2848, Declaration of Representative). The name of the person signing Part I of Form 2848 should be typed or printed on this form. A Form 2848 executed for the purpose of a pre-submission conference should reflect that it is for a “specific use” that is not recorded on the Centralized Authorization File (CAF) and should only be submitted as provided in this revenue procedure (that is, it should not be submitted to the Service by any other method listed in the Instructions for Form 2848).

A Form 2848 must be signed by both the taxpayer (or the person signing on the taxpayer's behalf) and the representative in a manner consistent with section 7.01(13) of Rev. Proc. 2022-1. If the Form 2848 is remotely signed by the taxpayer (or the person signing on the taxpayer's behalf) using a permissible electronic or digital method, the representative should follow the necessary steps to verify the taxpayer's identity provided in the Electronic Signatures section of the Instructions for Form 2848, but are not required to provide a separate attestation unless requested by the Service. If the Form 2848 is signed by the taxpayer (or the person signing on the taxpayer's behalf) using a physical, wet-ink signature, a submission may include a copy or scanned version of the Form 2848 as long as its authenticity is not reasonably disputed.

The taxpayer's authorized representative, as described in section 7.01(14) of Rev. Proc. 2022-1, whether or not enrolled, must comply with Treasury Department Circular No. 230, which provides the rules for practice before the Service. In situations where the Service believes that the taxpayer's representative is not in compliance with Circular 230, the Service will bring the matter to the attention of the Office of Professional Responsibility.

SECTION 7. SUBMITTING THE REQUEST FOR TECHNICAL ADVICE

Memorandum of issues, facts, law, and arguments

.01 The field office submits the request for technical advice. 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, discussing any relevant legal authority, including legislation, tax treaties, court decisions, regulations, notices, revenue rulings, revenue procedures, or announcements 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 relevant legal authority 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.

When the field office initiates a request for technical advice, the field office should notify the taxpayer that it is requesting technical advice and provide the taxpayer with a copy of the arguments supporting the field office's position. The taxpayer has 10 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, including a discussion of any relevant legal authority.

Transaction involving multiple taxpayers

.02 If the subject matter of the request involves a transaction among multiple taxpayers, the field office may submit a request for a single TAM, but only if each taxpayer agrees to participate in the process, including the furnishing of Forms 8821, Tax Information Authorization, or other written disclosure consent, as appropriate.

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

.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. The documents submitted must be in the official language of the country involved and must be copied from an official publication of the foreign government or another widely available and generally accepted publication. If English is not the official language of the country involved, the submission must also include a copy of an English language version of the relevant parts of all foreign laws. This translation must be: (i) from an official publication of the foreign government or another widely available, generally accepted publication; or (ii) a certified English translation submitted in accordance with paragraph (2) of this section 7.03. The taxpayer or the field office must identify the title and date of publication, including updates, of any widely available and generally accepted publication used 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 component of the request for technical advice, the Associate office, at its discretion, may refuse to provide a TAM. 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. This section applies whether or not the field office and the taxpayer dispute the interpretation of a foreign law or foreign document.

(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, and other documents pertinent to the request that are in a language other than English. If the taxpayer or the field office chooses to submit certified English translations of foreign laws, those translations must be based on an official publication of the foreign government or another widely available and generally accepted publication. In either case, the translation must be that of a qualified translator and must be attested to by the translator. The attestation must contain: (i) a statement that the translation submitted is a true and accurate translation of the foreign language document or law; (ii) a statement as to the attestant's qualifications as a translator and as to that attestant's qualifications and knowledge regarding tax matters or foreign law if the law is not a tax law; and (iii) the attestant's name and address.

Statement regarding interpretation of relevant income tax or estate tax treaty

.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.

Statement recommending information to be deleted from public inspection

.05 Except as provided below, every request for technical advice must separately include a statement of proposed deletions from public inspection (deletion statement). The text of TAMs and background file documents 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 deletion 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 deletion statement indicating the statutory basis under § 6110(c) for each proposed deletion. The deletion statement is not to be included 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 in accordance with the requirements in section 7.01(13) of Rev. Proc. 2022-1. If the deletion statement is not submitted, the taxpayer will be notified and advised by the field office that the deletion statement is required and that failure to provide a deletion statement will be interpreted by the field office, field counsel, and Associate office to mean that the taxpayer only wants names, addresses, and identifying numbers deleted. If the deletion statement is not received within 10 calendar days after the notification, the field office will notify the Associate office that the taxpayer has not provided a deletion statement and will advise the Associate office of any information in addition to names, addresses, and identifying numbers, that should be deleted pursuant to § 6110(c). 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. The above deletion statement requirements do not apply to the extent that the TAM is open to public inspection under § 6104. Section 6104(a)(1)(A) generally provides that if an organization described in § 501(c) or § 501(d) is exempt from taxation under § 501(a) or a political organization is exempt from taxation under § 527, the application for exemption under § 501(a) that the organization filed or the notice of status filed by a political organization pursuant to § 527(i) is open for public inspection as prescribed by regulations. Generally, § 6104(a)(1)(B) provides that: (1) an application filed with respect to the qualification of a pension, profit-sharing, or stock bonus plan under § 401(a) or § 403(a) or an individual retirement arrangement under § 408(a) or § 408(b) will be open to public inspection pursuant to regulations, as will (2) any application filed for an exemption from tax under § 501(a) of an organization forming part of a plan or account described above, (3) any papers submitted in support of an application referred to in (1) or (2) above, and (4) any letter or other document issued by the Internal Revenue Service and dealing with the qualification referred to in (1) or the exemption from tax referred to in (2).

Preparation of the memorandum; resolution of disagreements

.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, fax transmission, or electronic facsimile. The taxpayer then will have 10 calendar days from the date of mailing or fax to respond by providing a written statement specifying any disagreement on the facts and issues. This written statement may be submitted by mail, fax, electronic facsimile, or encrypted email attachment by following the procedures described in section 7.04(3) of Rev. Proc. 2022-1. There are more risks associated with email than with electronic facsimile, such as the possibility that sensitive taxpayer information could be intercepted. Accordingly, the Service encourages taxpayers to use a secure electronic facsimile service instead of email for electronically transmitting a written statement. The field office representative can provide a fax number to which the statement can be sent.

A taxpayer who needs more than 10 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 set 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 for review. The taxpayer may respond in writing to the memorandum highlighting material factual differences. The field office may revise the memorandum described in section 7.01 of this revenue procedure in response to the taxpayer's comments. This memorandum highlighting material factual differences 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(16)(b) of Rev. Proc. 2022-1. 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 request for technical advice. 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 taxpayer conference described in section 9. A taxpayer's failure to participate in the development of the memorandum described in section 7.01 of this revenue procedure will be considered a failure to participate in a material stage of the TAM process.

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.

Transmittal Form 4463, Request for Technical Advice

.07 The field counsel with whom the TAM request was coordinated must use Form 4463, Request for Technical Advice Memorandum, 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 TSS Assignments email address. To the extent feasible, the accompanying documents should also be submitted to the TSS Assignments email address, followed by hard copies upon the request of the assigned Associate office.

All supporting and additional documents

.08 Field counsel should send additional or supporting documents that are not available in electronic form by fax to Technical Services Support Branch at 855-592-8976 or by express mail or private delivery service to the following address to avoid any delays in regular mail:

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 10.05 of this revenue procedure.

Number of copies of request to be submitted

.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 W&I or TE/GE 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 SB/SE taxpayer, the field office must send an electronic copy of the request to the SB/SE Division Counsel office using the “&SBSE HQ Coordination” email address. If the TAM relates to a LB&I taxpayer, the field office must send an electronic copy of the request (no paper copy to follow) to the “&LB&I HQ” email address. If the request is from an Appeals office, the field office must advise Appeals Policy Planning Quality & Analysis that a request has been submitted. The field office will send a copy of the TAM request to *AP TAM Coordinator by encrypted e-mail.

SECTION 8. INITIAL PROCESSING OF THE REQUEST FOR TECHNICAL ADVICE BY THE ASSOCIATE OFFICE

Assignment and initial review by Associate office attorney

.01 After a request for technical advice has been received by the appropriate Associate office, it will be assigned to an Associate office attorney and reviewer. The Associate office attorney determines whether the request meets all procedural requirements of sections 4, 5, 6, and 7 of this revenue procedure and whether it raises issues that may be appropriately addressed in a TAM. Unless otherwise indicated, all references in this section to the Associate office or Associate office attorney are to the Associate office and attorney with primary responsibility for the TAM request.

Other forms of guidance

.02 If the assigned reviewer in the Associate office determines that guidance other than a TAM should be provided, the reviewer will immediately notify the Associate Chief Counsel. This other form of guidance may be published guidance, generic advice, or case-specific advice. Although the reviewer should make this determination as soon as possible, it may be made at any time during the processing of the request for technical advice. To make this determination, the reviewer should consider whether the issue has a broad application to similarly situated taxpayers or a practice area and whether resolution of the issue is important to a clear understanding of the tax laws. The Associate Chief Counsel, after consultation with Division Counsel Headquarters and the Operating Division, will decide whether to provide the TAM or issue guidance in another form. The Associate Chief Counsel may decide to provide the TAM as well as another type of guidance, if doing so would promote sound tax administration.

Initial acknowledgment and processing

.03 Upon receipt of a request for technical advice, the Associate office attorney who is assigned as the primary attorney on the request should immediately contact the field office. The purpose of this contact is only to acknowledge receipt of the request.

Deficiencies in request leading to return

.04 Within 7 calendar days after assignment, the Associate office attorney will contact the field office and field counsel to discuss any deficiencies in the request and will work with the field office and field counsel to correct them.

If only minor procedural deficiencies exist, the Associate office attorney will request the additional information without returning the case. If the deficiencies cannot be corrected over the next 7 calendar days, the request will be closed and returned to the field office. The request may be resubmitted when the deficiencies are corrected. If substantial additional information is required to resolve an issue or if major procedural problems cannot be resolved, the Associate office attorney will inform the field office and field counsel that the request for technical advice will be returned. If a request is returned, the field office should promptly notify the taxpayer of that decision and the reasons for the decision.

Initial discussion

.05 Within 21 calendar days of receipt, the Associate office attorney should contact the field office to discuss any procedural and substantive issues in the request. The Associate office attorney should also inform the field office about any matters referred to another Associate office for assistance and provide points of contact.

If additional information requested

.06 If additional information is needed, the Associate office attorney will obtain that information from the taxpayer, the field office, or the Director in the most expeditious manner possible. Any additional information requested from the taxpayer by the Associate office must be submitted within 10 calendar days after the request for information is received and must be accompanied by a penalties of perjury statement that conforms with the penalties of perjury statement set forth in section 7.06 of this revenue procedure. The additional information may be submitted by mail, fax, electronic facsimile, or encrypted email attachment by following the procedures described in section 7.04(3) of Rev. Proc. 2022-1. A taxpayer's failure to submit the additional information requested is considered a failure to participate in a material stage of the TAM process and results in a waiver of the right to the taxpayer conference discussed in section 9.

To facilitate prompt action, the Associate office and taxpayers are encouraged to exchange information by fax, electronic facsimile, or express mail service whenever feasible. There are more risks associated with email than with electronic facsimile, such as the possibility that sensitive taxpayer information could be intercepted. Accordingly, the Service encourages taxpayers to use a secure electronic facsimile service for transmitting additional information. The Associate office representative who requests additional information can provide a fax number to which the information can be sent. The Associate office attorney will take certain precautions to protect confidential information. For example, the Associate office attorney will use a cover sheet that identifies the intended recipient of the fax and the number of pages transmitted, that does not identify the taxpayer by name or tax identifying number and that contains a statement prohibiting unauthorized disclosure of the document if a recipient of the faxed document is not the intended recipient of the fax. The cover sheet will be faxed in an order in which it is the first page covering the faxed document.

Taxpayer request for extension of time to submit additional information

.07 A taxpayer's request for an extension of time to submit additional information must be made in writing and received by the Associate office within the 10-day period. It must provide compelling facts and circumstances to justify an extension. Only an Associate Chief Counsel may determine whether to grant or deny the request for an extension. Except in rare and unusual circumstances, the Associate office will not agree to an extension of more than 10 calendar days beyond the end of the 10-day period. There is no right to appeal the denial of a request for an extension.

Where to send additional information

.08 Any additional information submitted by the taxpayer should be sent to the attention of the assigned Associate office attorney. Generally, only the original of the additional information is necessary. In appropriate cases, however, the Associate office may request additional copies of the information. In all cases, the taxpayer must also send a copy of the additional information to the field office and field counsel for comment.

Any comments by the field office or field counsel must be furnished within an agreed period of time to the Associate office with primary responsibility for the TAM request. If there are no comments, the Associate office attorney should be notified promptly.

Tentative conclusions

.09 The Associate office attorney will inform the field office and field counsel when all necessary substantive and procedural information has been received. If possible, the Associate office attorney will provide a tentative conclusion. If no tentative conclusion can be reached, the Associate office attorney is encouraged to discuss the underlying complexities with the field office and field counsel. Because the Associate office attorney's tentative conclusion may change during the preparation and review of the TAM, the tentative conclusion is not considered final. If the tentative conclusion is changed, the Associate office attorney will inform the field office and field counsel. Neither the Associate office, nor the field office or the field counsel, should discuss the tentative conclusion and its underlying rationale with the taxpayer or the taxpayer's representative until the Associate office is ready to provide a TAM that agrees with the taxpayer's position or is ready to hold an adverse conference. To afford taxpayers an appropriate opportunity to prepare and present their position at a taxpayer conference, however, the taxpayer or the taxpayer's representative is to be told (by the Associate office attorney) the tentative conclusion when scheduling the taxpayer conference. Field counsel should be notified of, and given the opportunity to participate in, the notification to the taxpayer of the tentative conclusions and scheduling of the taxpayer conference.

SECTION 9. TAXPAYER CONFERENCES

Notification of conference

.01 If the Associate office proposes to provide a TAM that will be adverse to the taxpayer, and if the taxpayer has not waived its right to a taxpayer conference, the taxpayer will be informed of the time and place of the conference.

Scheduling conference

.02 The taxpayer conference for a TAM must occur within 10 calendar days after the taxpayer is informed that an adverse TAM is proposed. The Associate office will notify the field office and field counsel of the scheduled taxpayer conference and will offer the field office and field counsel the opportunity to participate in the conference.

Taxpayer may request extensions

.03 Only an Associate Chief Counsel may approve an extension of the 10-day period for holding a conference. Although extensions are granted in appropriate circumstances at the discretion of the Associate Chief Counsel, taxpayers should not expect extensions to be routinely granted. The taxpayer must submit a request for an extension in writing to the Associate office, and must immediately notify the field office and field counsel of the request. The request must contain a detailed justification for the extension and must be submitted sufficiently before the end of the 10-day period to allow the Associate Chief Counsel to consider, and either approve or deny, the request before the end of the 10-day period. If unusual circumstances near the end of the 10-day period make a timely written request impracticable, the taxpayer may orally inform the assigned Associate office attorney or reviewer before the end of the 10-day period about the need for an extension and then promptly submit the written request. The Associate office attorney will inform the taxpayer by telephone of the approval or denial of a requested extension. There is no right to appeal the denial of a request for extension.

One conference of right

.04 In general, a taxpayer who has not waived the right to a taxpayer conference is entitled by right to only one conference with the Associate office. The conference is normally held at the branch level. A person who has authority to sign the transmittal memorandum in his or her own name, or on behalf of the branch chief, will participate. When more than one branch of an Associate office has taken an adverse position on issues in the request or when the position ultimately adopted by one branch will affect another branch's determination, a representative from each branch with authority to sign in his or her own name, or for the branch chief, will participate in the conference. The conference is the taxpayer conference for each subject discussed.

Additional conferences may be offered

.05 After the taxpayer conference, the Service will offer the taxpayer an additional conference only if an adverse holding is proposed on a new issue or on the same issue but on grounds different from those discussed at the first conference. If a tentative position is changed at a higher level with a result less favorable to the taxpayer, the taxpayer has no right to another conference if the grounds or arguments on which the change is based were discussed at the taxpayer conference. The limitation on the number of conferences to which a taxpayer is entitled does not prevent the Associate office from inviting a taxpayer to participate in additional conferences if that office determines that additional conferences would be useful. These additional conferences are not to be offered routinely following an adverse decision.

Additional information submitted after the conference

.06 In order to ensure that the taxpayer conference is productive, the taxpayer should make a reasonable effort to supply all information, documents, and arguments in writing well before the conference.

Sometimes, however, it becomes apparent that new information may be helpful in resolving issues discussed at the conference. If the Associate office and the taxpayer agree that such information would be helpful, all such materials must be submitted and received within 10 calendar days after the conference. Any extension of the 10-day period must be requested by the taxpayer in writing and must be approved by the branch chief of the Associate office attorney. Extensions will not be routinely granted. Taxpayers have no right to submit additional materials after the conference, and are discouraged from providing additional copies or versions of materials already submitted. If the additional information is not received from the taxpayer within 10 calendar days plus any extensions granted by the branch chief, the TAM will be issued on the basis of the existing record.

The taxpayer must also send a copy of the additional information to the field office and field counsel for comment. If the additional information has a significant impact on the facts in the request, the Associate office will ask the field office and field counsel for comments, both of which will respond within the agreed upon period of time. If there are no comments, the Associate office attorney will be promptly notified.

Normally conducted in person

.07 Conferences under this section are generally conducted in person, but may be conducted by telephone.

Service makes only tentative recommendations

.08 At the end of the taxpayer conference, no commitment will be made about the conclusion that the Service will finally adopt for any issue, including the outcome of a request for relief under § 7805(b).

Conference may not be taped

.09 No tape, stenographic, or other verbatim recording of a taxpayer conference may be made by any party.

SECTION 10. PREPARATION OF THE TECHNICAL ADVICE

Reply consists of two parts

.01 The Associate office attorney prepares replies to requests for technical advice in two parts. Each part identifies the taxpayer by name, address, identification number, and tax period(s) involved. The first part of the reply is a transmittal memorandum (Form M-6000). The second part is the TAM, which contains: (1) a statement of the issues; (2) the conclusions of the Associate office; (3) a statement of the facts pertinent to the issues; (4) a statement of the relevant legal authority, including legislation, tax treaties, court decisions, regulations, notices, revenue rulings, revenue procedures, or announcements; and (5) a discussion of the rationale supporting the conclusions reached by the Associate office. The conclusions give direct answers, whenever possible, to the specific issues raised by the field office. The Associate office is not bound by the issues as submitted by the taxpayer or by the field office and may reframe the issues to be answered in a TAM after consultation with the field office and field counsel. The discussion of the issues in a TAM will be in sufficient detail so that the field or Appeals officials will understand the reasoning underlying the conclusion.

Status of a request

.02 The taxpayer or the taxpayer's authorized representative may obtain information on the status of the request by contacting the field office that requested the advice. The Associate office attorney or reviewer assigned to the TAM request will give frequent status updates to the field office and field counsel.

Opportunity for field counsel review

.03 The Associate office attorney will inform field counsel regarding the Associate office's final conclusions before a draft of the TAM is sent to the field office. Field counsel will be offered a reasonable opportunity to review and informally discuss these conclusions with the Associate office before the final TAM is sent to the field office.

Copy of preliminary TAM to field office and field counsel

.04 After field counsel is given a reasonable opportunity to review the Associate office's final conclusions, the Associate office attorney will provide a draft of the proposed final version of the TAM to the field office and field counsel. If the field office or field counsel disagrees with the proposed final conclusions, normal reconciliation and reconsideration procedures will be followed to resolve the disagreement.

Routing of reply

.05 A TAM is generally addressed to the field office that requested it. In the case of issues arising within the jurisdiction of the Director, Government Entities; the Director, Employee Plans or Exempt Organizations Examinations; or the Director, Employee Plans or Exempt Organizations Rulings & Agreements, the TAM is addressed to the appropriate Director with a copy sent to the field office and the field counsel attorney. A copy of a TAM requested by LB&I should be mailed simultaneously to the appropriate Practice Area Director. A copy of a TAM requested by Appeals should be addressed to the appropriate field office, and an electronic copy sent by encrypted e-mail to *AP TAM Coordinator.

Copy of final TAM to field counsel and Division Counsel

.06 The Associate office will provide a copy of the final TAM to the individual field counsel attorney who assisted the field office in submitting the request and to that attorney's Associate Area Counsel or other manager, as appropriate. The Associate office also will provide a copy of the final TAM to the Division Counsel for the operating division from which the request originated or that has jurisdiction over the particular matter in the TAM. The TAM may be transmitted electronically if it is in.pdf format, or may be sent by mail or fax transmission.

Reconsideration

.07 Requests for reconsideration may be submitted by the field office, or in the case of bonds under the jurisdiction of the Director, Government Entities, by that Director after the Associate office has provided a final copy of the TAM to field counsel and Division Counsel. Requests for reconsideration should be submitted before the field provides a copy of the TAM to the taxpayer and must describe with specificity the errors in the analysis and conclusions. Requests should focus on points that the TAM overlooked or misconstrued rather than simply re-argue points raised in the initial request. The Associate office will give priority consideration to the request and should act on the request as expeditiously as possible. The Associate office may request further submissions from the field office and field counsel or the taxpayer, but the parties should otherwise make no additional submissions. If a request for reconsideration fails to follow the procedures set forth in this section of this revenue procedure, or the request fails to raise issues or arguments different from those asserted in the initial request for technical advice, the Associate office may return the request for reconsideration without ruling on the request for reconsideration.

Discussing contents with the taxpayer

.08 The Associate office will not discuss the specific contents of the TAM with the taxpayer until after the field office has provided a copy of the TAM to the taxpayer.

Section 6110

.09 Before the TAM is issued, the Associate office will inform the taxpayer in writing of the material likely to appear in the TAM that the taxpayer proposed for deletion but that the Associate office has determined should not be deleted. If so informed, the taxpayer may submit within 10 calendar days any further information or arguments supporting the taxpayer's proposed deletions. The Associate office will attempt to resolve all disagreements about proposed deletions before the TAM is issued. The taxpayer does not have the right to a conference to resolve any disagreements about material to be deleted from the text of the TAM. For TAMs subject to § 6110, accompanying the TAM is a notice under § 6110(f)(1) of intention to disclose a TAM, including a copy of the version proposed to be open to public inspection and notations of third party communications under § 6110(d). If the transmittal memorandum associated with the TAM provides information not in the TAM, or if the case is returned for further development without issuance of the TAM, the transmittal memorandum may be Chief Counsel Advice, as defined in § 6110(i)(1), subject to public inspection under § 6110. These procedures do not apply to TAMs to the extent that § 6104 applies. See section 7.05 of this revenue procedure and § 6110(l)(1).

TAM takes effect when taxpayer receives a copy

.10 After a TAM is sent to the field office (or, for Tax Exempt Bonds, Employee Plans, and Exempt Organizations, to the Director), the field office or Director adopts and issues the TAM within the meaning of Treas. Reg. § 301.6110-2(h). Then the field office or Director provides the taxpayer a copy of the TAM, the notice of intention to disclose under § 6110(f)(1), as applicable, and a copy of the version proposed to be open to public inspection, which includes notations of third party communications under § 6110(d), as applicable. If a request for technical advice pertains to more than one taxpayer, and the requirements of section 7.02 of this revenue procedure have been met, the field office or Director will provide each taxpayer with a copy of the TAM and will notify the Associate office when this occurs. The requirement to provide a taxpayer a copy of the TAM does not apply to a TAM involving civil fraud or a criminal investigation, or to a TAM involving a jeopardy or termination assessment. See section 10.12 of this revenue procedure.

Taxpayer may protest deletions not made

.11 Generally, the Associate office considers only the deletion of material that the taxpayer has proposed for deletion or other deletions as required under § 6110(c) before the TAM is sent to the field office or Director. After receiving the notice of intention to disclose under § 6110(f)(1), the taxpayer may protest the disclosure of certain information in it by submitting a written statement in accordance with the notice of intention to disclose under § 6110(f)(1) (Notice 438, Notice of Intention to Disclose).

Public inspection in civil fraud or criminal investigation cases

.12 The provisions of this revenue procedure about referring issues upon the taxpayer's request, telling the taxpayer about the referral of issues, giving the taxpayer a copy of the arguments submitted, submitting proposed deletions, granting conferences in the Associate office, or providing a copy of the TAM to the taxpayer do not apply to a TAM described in § 6110(g)(5)(A), which involves any matter that is the subject of a civil fraud or criminal investigation, or that involves a jeopardy or termination assessment. In these cases, after all proceedings in the investigations or assessments are complete, the taxpayer receives a copy of the TAM with the notice of intention to disclose under § 6110(f)(1). The taxpayer may protest the disclosure of certain information in the TAM by submitting a written statement in accordance with the Notice of Intention to Disclose (Notice 438).

SECTION 11. WITHDRAWAL OF REQUESTS FOR TECHNICAL ADVICE

Taxpayer notified

.01 Once a request for a TAM has been sent to the Associate office, only a Director may withdraw the request, and this must be done before the responding transmittal memorandum for the TAM is signed. To withdraw the request, the Director must first notify the taxpayer of the intent to withdraw unless: (1) the period of limitation on assessment is about to expire and the taxpayer has declined to give written consent to extend the period; or (2) the notification would be prejudicial to the best interests of the Government. If the taxpayer does not agree that the request should be withdrawn and wishes to request review of the decision, the procedures in section 5.04 of this revenue procedure for review must be followed.

Acknowledgment of withdrawal

.02 Acknowledgment of the withdrawal of a request submitted by a Director should be sent to the appropriate Director, with a copy to the TAM coordinator. For a withdrawal of a request submitted by Appeals, send an electronic copy by encrypted e-mail to *AP TAM Coordinator.

Associate office may decide not to provide a TAM

.03 If the Associate office determines that a TAM will not be provided, it may return the request for technical advice unanswered. This determination must be made on the basis of sound tax administration and must be approved by the Associate Chief Counsel. The decision not to provide a TAM should be an infrequent occurrence and be made only after consultation with field counsel and the requesting field office. If field counsel disagrees with this determination, they may request reconsideration through existing reconciliation procedures.

Associate office may provide views

.04 If a request for technical advice is withdrawn or an Associate office decides not to provide a TAM, the Associate office may address the substantive issues through other published guidance. The Associate office may also address the substantive issues through legal advice, either generic or case-specific. The decision to address the issues through these other forms of guidance will be based on the general standards for issuing those types of guidance.

SECTION 12. USE OF THE TECHNICAL ADVICE

Service generally applies advice in processing the taxpayer's case

.01 After a TAM is issued, the field office must process the taxpayer's case on the basis of the conclusions in the TAM. In the case of a TAM unfavorable to the taxpayer, the Appeals Area Director may decide to settle the issue under existing settlement authority. Appeals, however, will not settle an issue contrary to a TAM if it concerns an organization's exempt status or private foundation classification, or if it concerns an employee plan's status or qualification. Thus, if the TAM received by the field office concerns an organization's exempt status, private foundation classification, or a plan's status or qualification, the organization or plan has no right to appeal those specific issues with the Appeals Office. Appeals may submit a proposed disposition of the issue contrary to a TAM as a request for a new TAM. If a TAM provides conclusions involving a § 103 obligation and the issuer of this obligation, the field office must apply the conclusions to the issuer and any holder of the obligation, unless a field office separately initiates a request for a TAM on behalf of the holder for the same issue addressed in the TAM involving the issuer, and the Associate office issues a TAM involving that issue and that holder.

SECTION 13. RETROACTIVITY AND RELIANCE

Usually applies retroactively

.01 The holdings in a TAM are applied retroactively, whether they are initial holdings or they are later holdings that modify or revoke holdings in a prior TAM. The Associate Chief Counsel with jurisdiction over the TAM, however, may exercise the discretionary authority under § 7805(b) to limit the retroactive effect of any holding. This authority is exercised in rare and unusual circumstances.

Revocation or modification of an earlier letter ruling or TAM

.02 A TAM may be used to seek revocation or modification of an earlier TAM or revocation or modification of a private letter ruling (PLR). See Rev. Proc. 2022-1, section 11.04 et seq. with respect to revocation or modification of PLRs. Generally, a TAM that revokes or modifies a letter ruling or an earlier TAM will not be applied retroactively if: (1) the applicable law has not changed; (2) the taxpayer directly involved in the letter ruling or earlier TAM relied in good faith on it; and (3) revocation or modification would be detrimental to the taxpayer. The new TAM will be applied retroactively to the taxpayer whose tax liability was directly involved in the letter ruling or TAM if: (1) controlling facts have been misstated or omitted; or (2) the facts at the time of the transaction are materially different from the controlling facts on which the letter ruling or earlier TAM was based. If a letter ruling or a TAM is modified or revoked with retroactive effect, the notice to the taxpayer, except in fraud cases, should set forth the grounds on which the modification or revocation is being made and the reason why the modification or revocation is being applied retroactively.

Continuing action or series of actions

.03 If an issue addressed in the TAM relates to a continuing action or a series of actions, it is generally applied until it is withdrawn or until the conclusion is modified or revoked by a final decision in favor of the taxpayer with respect to that issue, the enactment of legislation, the ratification of a tax treaty, a decision of the United States Supreme Court, or the issuance of temporary regulations, final regulations, a revenue ruling, or other statement published in the Internal Revenue Bulletin. Publication of a notice of proposed rulemaking does not affect the application of a TAM. If a new holding in a TAM is less favorable to the taxpayer than the holding in an earlier TAM, the new holding is generally not applied to the tax period when the taxpayer relied on the earlier holding. It will be applied to that tax period, however, if material facts on which the earlier TAM was based have changed.

Other taxpayers

.04 Under § 6110(k)(3), a taxpayer may not rely on a TAM issued by the Service for another taxpayer. In addition, retroactive or non-retroactive treatment to one member of a practice area directly involved in a letter ruling or TAM does not extend to another member of that same practice area, and retroactive or non-retroactive treatment to one client of a tax practitioner does not extend to another client of that same practitioner. The tax liability of each employee covered by a letter ruling or TAM relating to a pension plan of an employer is directly involved in the letter ruling or TAM.

SECTION 14. HOW MAY RETROACTIVE EFFECT BE LIMITED?

Request for relief under § 7805(b)

.01 A taxpayer with respect to whom a TAM is issued, or for whom a TAM request is pending, may request that the appropriate Associate Chief Counsel limit the retroactive effect of any holding in the TAM or of any subsequent modification or revocation of the TAM. For a pending request for technical advice, the taxpayer should make the request for relief under § 7805(b) as part of the initial request for advice. The Associate office will consider a request for relief under § 7805(b) made at a later time if the Director determines that there is justification for the delay in the making of the request. The Director's determination that the delayed request for § 7805 is not justified cannot be appealed. Requests for relief under § 7805(b) relating to the revocation or modification of determination letters and letter rulings issued by TE/GE are handled under the procedures in sections 23 and 29 of Rev. Proc. 2022-4, and section 12 of Rev. Proc. 2022-5, this Bulletin.

Form of request for relief — in general

.02 During the course of an examination of a taxpayer's return by the field office or during consideration of the taxpayer's return by the Appeals Area Director, a taxpayer's request to limit retroactivity must be made in the form of a request for a TAM. This includes recommendations by a Director that an earlier letter ruling or TAM be modified or revoked. The request must meet the general requirements of a request for technical advice. It must also: (1) state that it is being made under § 7805(b); (2) state the relief sought; (3) explain the reasons and arguments in support of the relief sought; and (4) include any documents bearing on the request. The taxpayer's request must be submitted to the Director, who should then forward the request to the Associate office for consideration. If a taxpayer submits a request for relief after the initial TAM request, the taxpayer must provide justification for having delayed the request. Requests for relief under § 7805(b) relating to the revocation or modification of determination letters and letter rulings issued by TE/GE are handled under the procedures in sections 23 and 29 of Rev. Proc. 2022-4, and section 12 of Rev. Proc. 2022-5, this Bulletin.

Form of request for relief — continuing transaction before examination of return

.03 A request for relief under § 7805(b) must be made in the form of a request for a letter ruling if: (1) a TAM addressing a continuing transaction is modified or revoked by later published guidance; and (2) the request for relief is submitted before an examination has begun covering the tax period(s) for which relief is sought. The requirements for a letter ruling request are given in Rev. Proc. 2022-1 (this Bulletin).

Taxpayer's right to a conference

.04 When a request for a TAM concerns only the application of § 7805(b), the taxpayer has the right to a conference with the Associate office in accordance with the provisions of section 9 of this revenue procedure. If the request for application of § 7805(b) is included in the request for a TAM on the substantive issues or is made before the taxpayer conference on the substantive issues, the § 7805(b) issues will be discussed at the taxpayer's one conference of right. If the request for the application of § 7805(b) is made as part of a pending TAM request after a taxpayer conference has been held on the substantive issues and the Director determines that there is justification for having delayed the request, then the taxpayer will have the right to a taxpayer conference concerning the application of § 7805(b), with the conference limited to discussion of this issue only.

Reconsideration of request for relief under § 7805(b)

.05 When a TAM grants a taxpayer relief under § 7805(b), the Director may not request reconsideration of the § 7805(b) issue unless the Director determines there has been a misstatement or omission of controlling facts by the taxpayer in its request for § 7805(b) relief.

SECTION 15. SIGNIFICANT CHANGES MADE TO REV. PROC. 2021-2

The electronic signature and submission procedures in section 7.01(13) and 7.04(3) of Rev. Proc. 2022-1 have been incorporated into sections 7 and 8.

SECTION 16. EFFECT ON OTHER DOCUMENTS

Rev. Proc. 2021-2, 2021-1 I.R.B. 116, is superseded.

SECTION 17. EFFECTIVE DATE

This revenue procedure is effective January 3, 2022.

DRAFTING INFORMATION

The principal author of this revenue procedure is Taylor H. Huse of the Office of Associate Chief Counsel (Procedure and Administration). For further information regarding this revenue procedure for matters under the jurisdiction of:

(1) the Associate Chief Counsel (Corporate), contact T. Ian. Russell or Jean Broderick at (202) 317-3181 (not a toll-free call);

(2) the Associate Chief Counsel (Financial Institutions and Products), contact K. Scott Brown at (202) 317-4423 (not a toll-free call);

(3) the Associate Chief Counsel (Income Tax and Accounting), contact R. Matthew Kelley at (202) 317-7002 (not a toll-free call);

(4) the Associate Chief Counsel (Passthroughs and Special Industries), contact Anthony McQuillen at (202) 317-6850 (not a toll-free call);

(5) the Associate Chief Counsel (Procedure and Administration), contact Jennifer Auchterlonie at (202) 317-3400 (not a toll-free call);

(6) the Associate Chief Counsel (Employee Benefits, Exempt Organizations, and Employment Taxes), contact Michael B. Blumenfeld at (202) 317-6000 (not a toll-free call);

(7) the Associate Chief Counsel (International), contact Nancy Galib at (202) 317-3800 (not a toll-free call);

(8) the Commissioner (Large Business & International Division), contact Shirley S. Lee at (202) 317-3152 (not a toll-free call);

(9) the Commissioner (Small Business/Self-Employed Division), contact Charles Hall at (240) 613-6353 (not a toll-free call);

(10) the Commissioner (Wage and Investment Division), contact Geoffrey Gerbore at (631) 977-3210 (not a toll-free call); or

(11) the Office of Appeals, contact Mark K. Wesner at (602) 636-9571 (not a toll-free call).

INDEX

References are to sections in Rev. Proc. 2022-2

Additional Information
initial processing of TAM request	8.06
taxpayer request for extension of time to send	8.07
where to send	8.08
after taxpayer conference	9.06
proposed deletions under § 6110	7.05, 10.09
Appeal of decision to seek or not seek TAM	5.03
The decision of the Director, the LB&I Territory Manager, or the Tax Exempt Bonds Program Manager may be reviewed but not appealed	5.04
Civil fraud or criminal investigation cases	10.12
Conferences
offered	6, 9, 14.04
after taxpayer conference	9.05
scheduling	6.06, 9.02
request to limit retroactivity	14.04
telephone conferences	6.07, 9.07
Definitions
Appeals officer	2.03
Director	2.02
field office	2.06
field counsel	2.07
frivolous issue	4.04
taxpayer	2.04
technical advice	1.01
Discussions with Taxpayers
contents of TAM	10.08
substantive issues at pre-submission conference	6.09
tentative conclusion in TAM	8.09
Employee Plans and Exempt Organizations
application of § 6104	7.05
mandatory technical advice on employee plans matters	3.04
requests by Exempt Organizations Rulings & Agreements	3.05
request for relief under § 7805(b) for matters handled by TE/GE	4.07
Extension of Time
to appeal decision not to request a TAM	5.03
to disagree with statement of facts in technical advice request	7.06
to schedule conference	9.03
to submit additional information requested by Associate office in initial processing of TAM	8.07
to submit additional information after conference	9.06
Foreign laws and documents	7.03
Issues Eligible for TAMs	3
Issues Not Eligible for TAMs	4
Penalties of Perjury Statement
form	7.06
required when no factual agreement	7.06
required with additional information	8.06
Power of Attorney	6.11
Pre-submission Conferences	6
Public Inspection Under § 6110
deletion statement required	7.05
exception when § 6104 applies	7.05
notice of intention to disclose	10.09
protesting deletions not made	10.11
Responsibility for Requesting Advice	5.01
Retroactive Effect
request to limit retroactivity	14.01
format of request	14.02, 14.03
right to conference	14.04
Section 301.9100 Relief	4.03
Status of TAM	10.02
Taxpayer Participation	3.03
consequences of failure to participate in material stage	7.06, 8.06
What to Include in the Request for Advice
Memorandum of issues, facts, law, and arguments	7.01
Statement proposing information to be deleted from public inspection	7.05
Transmittal Form 4463	7.07
Number of copies	7.09
Where to Send
information required prior to pre-submission conference	6.05
request for referral for a TAM	5.02
Withdrawal of TAM Requests	11