4.70.16. TE/GE Technical Assistance, Technical Advice Requests and Requests for 7805(b) Relief

(1) This IRM provides an overview of the responsibilities that examiners should understand and apply in the performance of their duties in requesting Technical Assistance, Technical Advice and Requests for 7805(b) Relief.

(2) Examination of exempt organizations will be conducted to determine whether such entities meet continued qualification of exempt status, compliance and the causes of noncompliance with the tax laws and applicable resolutions.

(3) Examination of employee benefit plans is regulatory, with emphasis on continued qualification of employee benefit plans. The IRS selects and examines returns to:

• Promote the highest degree of voluntary compliance with the tax laws governing plan qualification.

• Determine the extent of compliance and the causes of noncompliance with the tax laws and applicable resolutions.

• Determine whether such plans meet the applicable qualification requirements in operation.

(4) Examination of governmental entities will be conducted to determine whether such entities are in compliance with their employment tax filing, reporting, and payment requirements.

(5) The Tax Exempt Bond Examination Program is to identify and correct noncompliance in tax-advantaged bonds.

(6) "Proceedings before the IRS" include:

• The examination of a taxpayer’s return.

• The consideration of a taxpayer’s claim for credit or refund.

• Any matter under examination or in the IRS Independent Office of Appeals (Appeals) pertaining to tax-exempt bonds, tax credit bonds, or mortgage credit certificates.

• Any other matter involving a specific taxpayer under the jurisdiction of a Director.

(7) Technical advice is a written advice or guidance memo Associate Chief Counsel provides as to:

1. The interpretation and proper application of any legal authority, including legislation, tax treaties, court decisions, regulations, notices, revenue rulings, revenue procedures, or announcements.

2. A specific set of facts for the examination of a taxpayer's return, consideration of a taxpayer’s claim for refund or credit.

3. Any other matter under TE/GE’s jurisdiction.

(8) Requests for Technical Advice Memorandum (TAMs) are submitted under Rev. Proc. 2023-2, Rev. Proc. 2023-1 IRB 107 (or its successor). The IRS updates this revenue procedure annually as the second revenue procedure of the year and may modify or amplify the revenue procedure during the year. This Revenue Procedure also explains the rights that a taxpayer has when a field office requests a TAM regarding a tax matter.

(9) Technical advice does not include any oral or written legal advice furnished to the examiner that is not submitted and processed under Rev. Proc. 2023-2 (or its successor).

(10) If a provision of this IRM is inconsistent with Rev. Proc. 2023-2 (or its successor), follow the provisions of the Revenue Procedure.

(11) Rev. Proc. 2023-4 and Rev. Proc. 2023-5 (or their successor) provides procedures for IRC 7805(b) relief. These revenue procedures are updated annually. All personnel should refer to the most current versions of the annual revenue procedures.

(12) The procedures contained in this IRM are not intended to be all inclusive. Examiners must use their professional judgment in completing their exam cases and other compliance activities.

(1) Policy Statement 4-119 states that the primary objective of the TE/GE examination program is regulatory, with emphasis on continued qualification of exempt organizations and employee benefit plans, and continued compliance of governmental entities (federal, state, and local governmental entities, Indian tribal governments and tribal entities, and entities or organizations that issue tax advantaged bonds). See IRM 1.2.1.5.36, Policy Statement 4-119 (Rev.1), Selection and Examination of Returns. IRS selects and examines returns to:

1. Promote the highest degree of voluntary compliance with the statutes governing qualification of plans and exemption of certain types of organizations from tax.

2. Determine the extent of compliance and the causes of noncompliance with the tax laws by plans, organizations, and governmental entities.

(2) IRC 7602 gives examiners the authority to:

1. Examine any books, papers, records, or other data necessary to complete an examination (includes electronic media).

2. Issue a summons for information necessary to complete an examination.

3. Take testimony under oath to secure additional information needed.

4. Ask about any offense connected to administering or enforcing the Internal Revenue laws.

(3) IRC 6201 - Assessment Authority, which falls under Chapter 63 - Assessment.

(4) All examinations are conducted per the Taxpayer Bill of Rights (TBOR) as listed in IRC 7803(a)(3).

(1) The Directors, EO/GE and EP, are the executives responsible for providing policy and guidance for field employees and ensuring consistent application of policy, procedures and tax law to effect tax administration while protecting taxpayers’ rights. See IRM 1.1.23, Tax Exempt and Government Entities Division, for additional information.

(2) The Directors, EO Examinations, GE, and EP Examinations reports to the Directors, EO/GE and EP respectively, and are responsible for the delivery of policy and guidance that impacts the field examination process. See IRM 1.1.23, Tax Exempt and Government Entities Division, for additional information.

(3) All examiners must perform their professional responsibilities in a way that supports the IRS Mission. This requires examiners to provide top quality service and to apply the law with integrity and fairness to all.

(4) Examiners and their managers should thoroughly acquaint themselves with the examination procedures and information contained in this IRM, as well as other resources.

(1) TE/GE has established two review groups to make sure examiners conduct examinations per technical, procedural and administrative requirements:

1. Mandatory Review / Technical.

2. Special Review, see IRM 4.70.7, Special Review (SR) and Tax Exempt Quality Measurement System (TEQMS) Procedures.

(2) In order to ensure a consistent level of managerial engagement in the process of making key strategic decisions during an exam, the examiner submits requests for approval by their manager through RCCMS.

(3) The manager approves or rejects any request through RCCMS.

(4) The IRS is fully committed to protecting the privacy rights of taxpayers and employees. Privacy laws are included in the IRC, the Privacy Act of 1974, the Freedom of Information Act, and IRS policies and practices. For more information about these laws, visit the IRS Electronic Freedom of Information Act Reading Room.

1. For questions about privacy, email *Privacy

2. For question about disclosure, email *Disclosure

(1) Associate Counsel - Office of Associate Chief Counsel Employee Benefits, Exempt Organizations, and Employment Tax (EEE) or Office of Associate Chief Counsel Financial Institutions & Products (FIP).

(2) TEGEDC – Tax Exempt and Government Entities Division Counsel (TEGE Division Counsel). References to TEGE Area Counsel refer to the first line supervisors for TEGE Division Counsel attorneys.

(3) Examiner - TE/GE Exam employees (examiner, Group Manager, Area Manager/Program Manager).

(4) This manual uses the following acronyms and references the following forms.

(1) TEB examiners must get approval to request technical assistance from TEB Technical. They do this by filling out necessary forms and providing information to move a technical assistance request forward.

(2) TEB examine: If your manager agrees that you’re likely to close the case unagreed or as a claim denial, and determines that technical assistance is warranted (with PM’s approval), prepare and send Form 14501, TEB CPM Technical Assistance Request, to TEB Technical manager requesting a TLS for technical assistance. Your request must:

1. Identify the taxpayer and bond issue under examination.

2. Include your name and your manager’s name.

3. Describe the identified area of noncompliance.

4. Include any taxpayer or issuer correspondence with a position on the matter.

(3) Program Manager: Approve the Group Manager’s request for technical assistance, if warranted.

(4) TEB Technical manager:

1. Notify the Group Manager and PM of the assigned TLS.

2. Discuss the assignment’s priority with the TLS.

(5) TLS:

1. Review the draft document(s) and prepare a memorandum to the Group Manager and examiner with comments on any areas requiring further development.

2. Coordinate with the examiner if additional information is needed.

3. Update the TEB Technical manager on case progress.

(6) Examiner:

1. Respond to any TLS request for additional information.

2. Incorporate all revisions into the necessary documents.

(7) All: Share and discuss pertinent case-related communication during the technical review process.

(1) You must request Technical Advice for plans for which the IRS is proposing to issue a revocation letter because of certain fiduciary actions that violate the exclusive benefit rule of IRC 401(a) 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.

(2) Effective January 5, 2018, under Rev. Proc. 2018-4, EP Examination groups began processing section 7805(b) relief requests. See Rev. Proc. 2023-4, which superseded Rev. Proc. 2018-4, for the most current procedures.

(3) Effective January 1, 2018, under Rev. Proc. 2018-4, requests for letter rulings on a waiver of the minimum funding standard are submitted to the TE/GE Office of Associate Chief Counsel and not to Employee Plans Rulings and Agreements. For current procedures see Rev. Proc. 2023-1 (updated annually).

(1) Initiate a request for a TAM (to the extent possible) at the earliest stage of the examination.

(2) If you think that technical advice is warranted, discuss the issue with your Group Manager.

(3) If your Group Manager agrees that technical advice may be warranted, they will contact TEGEDC along with the Area Manager to discuss the issue. For ITG and GE exams, the Group Manager contacts the Program Manager. You must receive approval from TEGEDC before proceeding.

(4) After obtaining TEGEDC’s approval to request a TAM, the Group Manager must obtain written approval (email approval will suffice) from their Area Manager/Program Manager and the Director before submitting the formal TAM request.

(5) If the Area Manager/Program Manager and the Director agree that a TAM should be pursued, a Pre-Submission Conference must be held with Associate Chief Counsel.

(6) For FSL/ET cases, if the GE Director agrees that a TAM should be pursued, the FSL/ET Program Manager need to request a Reviewer to be assigned before scheduling the Pre-Submission Conference.

(7) For ITG cases, if the GE Director agrees that a TAM should be pursued, the ITG Program Manager needs to request a Technical Reviewer to be assigned before scheduling the Pre-Submission Conference.

(8) For TEB cases, if the GE Director agrees that a TAM should be pursued, the TEB Exam Group Manager needs to request a Tax Law Specialist to be assigned to the case.

(9) If the appropriate Director agrees that a TAM should be pursued, the examiner needs to notify the taxpayer of the intention to request a TAM.

(10) If the appropriate Director doesn’t approve the TAM request, continue to work the case using normal case procedures.

(11) If Associate Chief Counsel agrees during the Pre-Submission Conference that a TAM should be requested, the examiner prepares Form 4463, Request for Technical Advice or Technical Expedited Advice, with attachments explaining the:

1. Facts and the issues surrounding the TAM request

2. Applicable law and arguments in support of the position(s) of the IRS on the issue or issues

3. Applicable law and arguments in support of the position(s) of the taxpayer on the issue or issues

   Note: Generally, each issue must be presented separately using the traditional facts, law, government’s position, taxpayer’s position, and conclusion format. TEGEDC will help prepare the TAM request. For TEB and ITG cases, the assigned Technical Reviewer or assigned Tax Law Specialist will also help prepare the TAM request.

(12) For EP:

1. The examiner sends Form 4463, Request for Technical Advice or Technical Expedited Advice. to the Director, EP Examinations, for approval.

2. If the TAM request is for a case involving a prohibited transaction, as defined in IRC 4975(c)(1), or a violation of the exclusive benefit rule under IRC 401(a)(2), which is subject to review by the Department of Labor under section 103 of Reorganization Plan No. 4 of 1978, then you must make a referral on Form 6212-B Examination Referral Checksheet B, to the Department of Labor before submitting the TAM to Associate Chief Counsel.

(1) The taxpayer may initiate a request for a TAM orally or by submitting a written statement to the examiner that includes the taxpayer’s reasons for requesting the TAM (under section 5.02 of Rev. Proc. 2023-2, or current version of the Rev. Proc.).

(2) If you receive a taxpayer’s written statement and disagree with their statements of issues and facts, respond in writing explaining your disagreement. Before responding to the taxpayer discuss the matter with your Group Manager. The response is required even if you determine that request for technical advice is not warranted.

(3) After you evaluate all documents and determine whether a TAM is warranted, prepare a written summary of the issues, specifically for the Group Manager and Area Manager/Program Manager, explaining why the taxpayer’s request for a TAM must be approved or denied.

(4) Immediately fax or email the summary and a copy of the taxpayer’s written statement to your manager.

(5) Group manager: Upon receipt, immediately forward the examiner’s summary and a copy of the taxpayer’s written statement with your recommendation to the Area Manager/Program Manager.

(6) The Area Manager/Program Manager:

1. May direct the manner and the extent of additional documentation needed for approval.

2. May deny a taxpayer-initiated request for a TAM based on material disagreement over issues and/or facts.

3. May approve the taxpayer’s request for a TAM, then solicit the Director’s approval.

4. If the Area Manager/Program Manager and Director both approve the TAM request, they will send their written approval to the Group Manager.

(7) The formal TAM request includes the taxpayer’s written statement and all other statements and correspondence between the examiner and the taxpayer in connection with any disagreement over issues and facts.

(8) If the Area Manager/Program Manager denies the taxpayer’s request for a TAM, the examiner will inform the taxpayer in writing.

(9) The taxpayer may appeal IRS’s decision to deny the taxpayer’s TAM request by submitting to the examiner, within 30 calendar days after being notified the request was denied, a written statement of the reasons why the matter must be referred to Associate Chief Counsel. The statement must 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.

(10) Upon receipt of the written request from the taxpayer to appeal the decision to deny the TAM request, the Group Manager immediately sends the taxpayer’s written request appealing the decision to deny the TAM request, along with the examiner’s statement as to why the issue shouldn’t be referred to Associate Chief Counsel for technical advice, to the Director, EP Examinations (for EP issues) or to the EO Exam Director (for EO issues). For GE issues, the manager sends the request to the Program Manager. The Program Manager sends the package with their recommendations to the GE Director.

(11) If the applicable Exam Director agrees with the taxpayer that a TAM should be requested:

1. For EP and EO, the examiner informs the taxpayer of the decision and submits the TAM request.

2. For GE, the GE Director notifies the GE Functional Program Manager and Group Manager of the decision in writing and requests the assignment of a technical reviewer or Tax Law Specialist. The examiner notifies the taxpayer of the decision and submits the TAM request.

(12) If the applicable Exam Director determines that a TAM is not warranted:

1. For EP and EO, the examiner informs the taxpayer in writing of the denial and the reasons for the denial (unless doing so would prejudice the Government’s interests).

2. For GE, the GE Director informs the GE Functional Program Manager of the decision, and the examiner informs the taxpayer in writing of the denial and the reasons for the denial.

(1) A pre-submission conference is mandatory for all TAM requests. If you submit a request for technical advice before the pre-submission conference is held, Counsel will return it.

(2) A pre-submission conference helps the parties involved discuss and agree on:

• Background information.

• Documents that must be included in the formal submission of the request for technical advice.

• The appropriate scope of the request for technical advice.

• The framing of the issues.

(3) A pre-submission conference is held with:

• Associate Chief Counsel attorney

• TEGEDC attorney

• Examiner

• Group Manager

• Area Manager (EO and EP issues)

• Technical Reviewer (ITG issues)

• Tax Law Specialist (TEB issues)

• Taxpayer/Representative

  Note: The technical advice request can proceed even if the taxpayer declines to participate in the pre-submission conference.

(4) Before the pre-submission conference the examiner needs to:

1. Prepare your own statement of pertinent facts and issues.

2. Solicit from the taxpayer their respective statement of pertinent facts and issues.

3. Make sure Form 2848 Power of Attorney and Declaration of Representative is secured for the representative involved with the TAM and that the Form 2848 covers all applicable periods.

   Note: The legal analysis provided in the parties’ statements must be sufficient to enable Counsel to be reasonably informed about the subject matter.

(5) The examiner and the taxpayer must exchange proposed statements of the pertinent facts and issues. The proposed statements must 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 Associate Chief Counsel’s understanding of the issues to be discussed during the conference.

(6) Before the scheduled pre-submission conference, the examiner must prepare and email the following items to the TEGEDC attorney:

1. A statement of issues that the parties would like to discuss.

2. A statement of pertinent facts.

3. A statement of the facts in dispute, if any.

4. Any legal analysis, authorities or background documents that could help the attorney understand the issues. (This doesn’t have to be fully developed as there will be an analysis that will ultimately accompany the formal request for a TAM).

5. The taxpayer’s statement of pertinent facts and issues.

6. A copy of Form 2848, Power of Attorney and Declaration of Representative, for the representatives involved with the TAM. Make sure to verify it covers all applicable periods.

(7) TEGEDC: After reviewing the emailed information (from the examiner), forward it to the Associate Chief Counsel TSS4510 mailbox, requesting a pre-submission conference. Include the following in the request for pre-submission conference:

1. A cover memo, including contact information, requesting a technical advice pre-submission conference.

2. The name of the office expected to have jurisdiction over the request for a TAM (For example, the EP Examination Group and Area).

3. A list of representatives from each IRS function known to the examiner that he/she expects to attend the pre-submission conference.

4. A brief explanation of the primary issue.

   Note: The factual information must cover all collateral issues for which EP Examinations is seeking technical advice from Associate Chief Counsel. The assigned branch of the Associate Chief Counsel office must receive the pre-submission materials at least 10 business days before the conference is to be held.

(8) TEGEDC: If you can’t email any part of the information in IRM 4.70.16.6.4, Pre-submission Conference, fax it to 202-317-6718, or send the package by express mail or private delivery service to:

Internal Revenue Service
Attn.: CC:PA:LPD:TSS, Room 5336
1111 Constitution Ave., NW
Washington, DC 20224

(9) Associate Chief Counsel: Arrange the pre-submission conference call and notify all parties involved of the date, time, and conference call number.

(10) Associate Chief Counsel will contact the taxpayer, the examiner, and the TEGEDC attorney within five business days of receipt of the request to schedule a pre-submission conference and notify all parties of the date, time, and conference call number.

(11) The pre-submission conference (likely held by telephone) must be held within 30 calendar days after the examiner is contacted.

(12) Any discussion of substantive issues at a pre-submission conference:

• Is advisory only.

• Is not binding on the IRS or the Office of Chief Counsel.

• Can’t be relied upon as a basis for obtaining retroactive relief under IRC 7805(b).

(13) No tape, stenographic, or other verbatim recording of the conference may be made by any party.

(14) If everyone agrees during the pre-submission conference that the technical advice:

1. Is not warranted, then continue to process the case to completion under normal procedures.

2. Is warranted, continue to prepare and submit the formal technical advice package.

(15) During the pre-submission conference, Counsel may raise new issues in addition to those that the examiner and taxpayer submitted.

(1) The examiner prepares the technical advice package with TEGEDC's help. For EO and EP, request assistance from TEGEDC. For GE, request assistance from the Technical reviewer or assigned TLS and TEGEDC. The TAM package consists of:

1. Form 4463, Request for Technical Advice or Technical Expedited Advice, approved by the functional Director.

2. A detailed explanation of the issues, facts, law, government’s position, and taxpayer’s position.

3. Form 2848, Power of Attorney and Declaration of Representative

4. Agreed Statement of issue and facts

5. Memorandum-Resolution of Disagreement and taxpayer’s Statement

6. Taxpayer’s Deletion statement (taxpayer’s request to delete certain taxpayer information)

7. IRC 7805(b) Relief Request, if applicable

8. Penalties of perjury statement signed by the taxpayer, if applicable

9. Documentation supporting the Area Manager/Program Manager’s and Director’s approval of the TAM

10. Any other supporting documentation

    Note: Whenever possible, mark all documents with the case number and name of the Associate Chief Counsel attorney assigned to the pre-submission conference for the TAM request.

    Reminder: Make sure Form 4463, Request for Technical Advice or Technical Expedited Advice reflects the Examinations Director as the approving official and includes the Director's address.

(2) Every request for technical advice must include a description of the facts, issues, applicable law, and arguments supporting the taxpayer’s position on the issues and the IRS’s position on the issues.

1. If the taxpayer and the IRS disagree about ultimate findings of fact or the relevance of facts, include all of the facts with an explanation highlighting the areas of disagreement.

2. Include in the memo, an explanation of the taxpayer’s position. This explanation must include a discussion of any relevant statutory provisions, tax treaties, court decisions, regulations, revenue rulings, revenue procedures, notices, and any other authority supporting the taxpayer’s position.

3. Include in the memo, a similar explanation of the position of the IRS. This explanation must include a discussion of any relevant statutory provisions, tax treaties, court decisions, regulations, revenue rulings, revenue procedures, notices, and any other authority supporting the IRS position.

4. Both the IRS and the taxpayer should comment on any existing or pending legislation, tax treaties, regulations, revenue rulings, revenue procedures, notices, or court decisions contrary to their respective positions.

5. If either party determines that there are no authorities conflicting their position, that statement must be noted in the memo. The field office submits the request for tech. advice.

(3) Unless specifically requested, do not send the exam case file to Associate Chief Counsel with the TAM request.

(4) Keep original documents in the exam case file. Use copies of these documents for the technical advice package.

(5) Include only relevant information, documents, correspondence, etc. related to the issue(s) in the request.

(6) Remember that Associate Chief Counsel will base their decision on the information provided with the technical advice package, so it’s important that you include all relevant information and clearly articulate the issue(s).

(7) Keep a copy of the technical advice package for reference if Associate Chief Counsel has any questions.

(8) Ensure that a minimum of one year remains on the statute of limitations for all returns before you submit the request.

(9) For EP: Send a courtesy copy of Form 4463, Request for Technical Advice or Technical Expedited Advice to Special Review. Form 4463, can be sent electronically to Special Review's Tech Advice mailbox at *TE/GE-EP-Technical Rulings

(10) For TEB: Send a courtesy copy of Form 4463, Request for Technical Advice or Technical Expedited Advice, to the assigned TLS and your Group Manager. The Group Manager will forward to the Program Manager and the Director.

(11) After you assemble, tab, and index the technical advice package, route the package through your Group Manager to the TEGEDC attorney who will submit the package to the Associate Chief Counsel attorney.

(12) TEGE Area Counsel will submit Form 4463, Request for Technical Advice or Technical Expedited Advice to Special Review and the rest of the technical advice package to the TSS Assignments email address within 10 business days of receipt from the examiner. When possible, also send the accompanying documents to the TSS Assignments mail address. Follow by sending any hard copy documents if Associate Chief Counsel requests any.

(13) Fax any part of the technical advice package that can’t be emailed to TSS4510 (EP) at (202) 317-6718. Fax to TSS Assignments (TEB) at (855) 592-8976. Or send information by express mail or private delivery service to:

Internal Revenue Service
Attn: CC:PA:LPD:TSS, Room 5336
1111 Constitution Ave., NW
Washington, DC 20224

(1) The technical advice package may be submitted electronically, except for the information listed in paragraph (2) below. You may either:

1. Scan all documents and submit the entire technical advice package electronically, or

2. Email documents already in electronic format and mail hard copies of the remaining items.

(2) You must send hard copies of executed legal documents and penalty of perjury statements.

(3) Secure email the supporting documents to TEGEDC.

(1) During the technical advice process, the examiner "owns" the case and maintains possession of all examination case files involved in the technical advice and all related examination files.

(2) The examiner:

1. Maintains possession of all original documents secured during the examination.

2. Is always responsible for ensuring that the statute of limitations is protected on the lead exam and any related case while Associate Chief Counsel considers the technical advice request.

3. Is responsible for updating the inventory control systems upon receipt of the approved Form 4463, Request for Technical Advice or Technical Expedited Advice from the Director. Update the AIMS and RCCMS systems to reflect the case in status 38, Suspense, All Other. AIMS and RCCMS must continue to reflect case control at the group level.

4. Must issue Letter 1014-A, Taxpayer Notification of Examination Delay, to the taxpayer to formally notify them of the technical advice and the corresponding delay in the examination.

5. Must forward any additional information received for an issue pending technical advice to Associate Chief Counsel through the TEGEDC.

(1) The taxpayer or their representative may obtain information on the TAM request status by contacting the examiner who requested the TAM. See Section 10.02 of Rev. Proc. 2023-2.

(2) Associate Chief Counsel will give frequent TAM status updates to the appropriate Counsel attorney, who in turn will notify/email the examiner of the status of the TAM request.

(3) When the TAM is complete, Associate Chief Counsel will mail or email the TAM to the Director, EP Examinations, Director, EO Examinations, or the Director, GE along with a copy to the examiner and the appropriate Counsel attorney.

(1) If Associate Chief Counsel determines that the TAM request package is deficient, the examiner, the TEGEDC attorney and the Associate Chief Counsel attorney will work together to obtain the necessary information. If the issue can’t be resolved within seven days, Associate Chief Counsel may return the TAM request and a new TAM request may be required.

(2) Within 21 days after receipt, Associate Chief Counsel should:

1. Contact the examiner and/or TEGEDC to discuss any procedural and substantive issues in the case.

2. Notify the examiner whether any matters have been referred to another Associate Chief Counsel attorney for assistance.

(3) When Associate Chief Counsel is ready to issue the TAM, they will communicate their conclusions and reasoning to TEGEDC. TEGEDC may informally discuss any disagreements.

(4) If Associate Chief Counsel proposes an adverse TAM and the taxpayer has not waived their right to a conference, then Counsel will inform the taxpayer of the time and place of the conference.

1. The examiner and their Group Manager will be given the opportunity to participate in that conference.

2. Although the taxpayer is entitled to only one conference of right, Associate Chief Counsel may choose to offer additional conferences.

(5) If the taxpayer submits additional information after the conference, the examiner must either provide Associate Chief Counsel with comments on the additional information or notate to Associate Chief Counsel that the examiner has no comments.

(6) Before issuing the final TAM, Associate Chief Counsel will issue a preliminary TAM to the examiner and to TEGEDC.

1. If there is disagreement about any aspect of the TAM, normal reconciliation and reconsideration procedures will be followed to resolve the disagreement.

2. The examiner must refrain from discussing the TAM issues while Associate Chief Counsel processes the TAM request and issues the final TAM.

(7) When the TAM is complete, Associate Chief Counsel will mail or email the TAM to the Director of the respective examination function and send a copy to the examiner and the TEGEDC attorney.

(1) Associate Counsel addresses the final TAM to the respective exam director, and provides a copy to the:

• Individual TEGEDC attorney who assisted the examiner in submitting the request

• Division Counsel

(2) The TAM contains:

1. A statement of the facts and issues.

2. A statement of relevant legal authority such as regulations, revenue rulings, and court cases.

3. The conclusions of Associate Chief Counsel.

4. A discussion of the rationale behind the conclusions reached.

(3) A TAM applies only to the taxpayer for which technical advice was requested.

(1) Upon receipt of the TAM, the respective exam director’s office, immediately sends a secure email of an advanced unofficial copy of the TAM to the examiner, the Group Manager and the Area Manager/Program Manager. The Director’s staff must mark on the advanced unofficial copy "DO NOT RELEASE TO TAXPAYER".

(2) The director’s office prepares a transmittal memo (with the concurrence of the examiner and the Area Manager/Program Manager) recommending either adopting the TAM or requesting reconsideration of the TAM. The director’s office includes the date they received the TAM and the date the examiner must either send the TAM via certified mail to the taxpayer, or securely email a Memorandum of Request for Reconsideration to the director’s office. This date is known as the examiner’s "Performance Date".

(3) Within 14 days of receiving the TAM, the Exam Director’s staff sends the official TAM along with the transmittal memo (collectively known as the TAM Package) to the exam group, with a copy to the Area Manager/Program Manager.

(1) Letter 438, Notice of Intention to Disclose – Technical Advice, must be included with TAM notices subject to IRC 6110. The letter states the IRS’s intention to disclose the TAM (including a copy of the version proposed to be open to public inspection and notations of third-party communications under IRC 6110(d)). See IRC 6110(f)(1).

(2) If Letter 438 is required, Associate Chief Counsel will send it to the examiner with the TAM and all the information that the examiner will need to complete the notice, before sending it to the taxpayer.

(3) Letter 438 informs taxpayers of their right to request additional deletions from the sanitized TAM.

(4) Per Letter 438, the Office of Chief Counsel for Disclosure is the primary contact for the taxpayer for this matter.

(5) The examiner isn't involved in the IRC 6110 deletion process after mailing Letter 438 except to provide direction to the taxpayer, as needed.

(6) Before you mail the TAM Package, complete Letter 438 by filling in the taxpayer's name and the required dates. Input the dates:

1. "Mailing date of this notice": Enter the certified mailing date.

2. "Last date to request IRS review": Enter the 20th day after the notice mailing date. If the 20th day falls on a weekend or holiday, then enter the next business day.

3. "Last Date to petition Tax Court": Enter the 60th day after the notice mailing date. If the 60th day falls on a weekend or holiday, then enter the next business day.

4. "Date open to public inspection": Enter the Friday preceding the 90th day. Enter the date after the notice mailing date. If that Friday falls on a holiday, then enter the previous business day.

(1) Once the request for a TAM has been sent to Associate Chief Counsel, only the Director (of EP Examinations, EO Examinations or GE) may withdraw the request, and it may only be done before the responding transmittal memorandum for the TAM is signed. See procedures in Rev. Proc. 2032-2, section 11.

(2) The Director (of EP Examinations, EO Examinations or GE) sends a memorandum to Associate Counsel to request the withdrawal.

(3) The examiner will notify the taxpayer of the decision to withdraw the TAM by issuing Letter 6293, Notice of Withdrawal of Request for Technical Advice, unless:

1. The period of limitation on assessment is about to expire and the taxpayer has declined to give written consent to extend, or

2. The notification would be prejudicial to the best interests of the Government.

(1) After you mail the TAM to the taxpayer, close the case based on the TAM conclusions.

(2) Follow the normal "agreed" or "unagreed" closing procedures, as applicable.

(3) If the issue covered by the TAM is still unagreed, attach the TAM to the RAR.

(4) Technical advice cases aren't subject to mandatory review unless they meet one of the other criteria for mandatory review.

(5) The holdings in a TAM are applied retroactively unless the TAM grants section IRC 7805(b) relief.

(6) Use AIMS disposal code 10, (RCCMS disposal code 604), Unagreed Without Protest, to close your case if there is an unagreed issue for which the taxpayer is unable to file a protest to Appeals because it was the subject of a TAM. For EO, the taxpayer is unable to file a protest to Appeals when revocation or private foundation reclassification is the subject of the TAM.

(7) Notate on the RCCMS 3198-A Checksheet in RCCMS that the case had been in suspense, status code 38.

(8) Note in the RCCMS comment box that this case was previously in status 38. This alerts the Closing Function Tax Examiner to change the case to status 55, Closing Unit: Cases Previously Held in Suspense or Returned from Appeals.

(9) If the case is closed "agreed", the TE/GE Closing Unit Group will update the case from status 51, Closing Unit: Unassigned, to status 55 first and then to status 90, Closed, when it closes.

(1) Section 22.03 of Rev. Proc. 2023-4 states, "In order for a petitioner to be deemed to have exhausted administrative remedies within the IRS with respect to §7805(b), an applicant must submit a request for relief under §7805(b) to the IRS in accordance with the procedures in section 23.08 of this revenue procedure."

(2) Section 23.08 of Rev. Proc. 2023-4 states, "A request for relief under §7805(b) must be in writing and must be submitted to the agent or specialist assigned to the case. The request for relief under §7805(b) must be submitted before issuance of the final adverse determination letter."

(3) A request for relief can occur only when the plan has a determination letter and the examiner discovers the plan document contains faulty language or fails to include required language. In other words, the determination letter was issued in error.

(4) A taxpayer’s request for retroactive relief must be in writing and submitted to the examiner prior to Mandatory Review issuing the final revocation letter.

(5) Effective date of revocation: Without IRC 7805(b) relief, revocation is retroactive. Generally, the revocation will be retroactive to the effective date of the plan, to the effective date of the plan provision containing the faulty language or, if later, to the effective date of the required omitted language. Retroactivity is based on when the language was effective.

(1) Section 12.04(3) of Rev. Proc. 2023-5 states, "If an organization seeks declaratory judgment under §7428 in response to a retroactive revocation or, to preserve judicial review of a claim for relief under §7805(b), the organization must follow the steps in this revenue procedure in order to have exhausted its administrative remedies with respect to its request under §7805(b). If the organization does not complete the applicable steps, the organization will not have exhausted its administrative remedies as required by §7428(b)(2) with respect to its request for §7805(b) relief and will thus be precluded from obtaining §7805(b) relief in any declaratory judgment it seeks under §7428."

(2) Section 12.04 of Rev. Proc. 2023-5 states, "A request for relief under §7805(b) must be in writing and must be submitted to the agent or specialist assigned to the case. The request for relief under §7805(b) must be submitted before issuance of the final adverse determination letter."

(3) A request that the determination letter "shall be applied without retroactive effect" under IRC 7805(b)(8) may be initiated by you or the taxpayer. If initiated by the taxpayer, it must be submitted to you prior to the issuance of the final adverse determination letter.

(4) The request must be in writing in the same form and with the content specified in Rev. Proc. 2023-5, as appropriate, or its successors.

(5) Effective date of revocation:

1. When an entity receives a determination letter or ruling, and later loses exemption due to a change in the facts or law, revocation is effective the first day of the first tax year in which the change occurs. Under these circumstances, there is no need to request application of IRC 7805(b) relief. When an entity erroneously receives a determination letter or ruling due to an omission or misstatement of material facts, the effective date of revocation is the first day of the first tax year. In this case, don’t recommend relief under IRC 7805(b) .

2. It’s generally not available.

3. When an entity erroneously receives a determination letter or ruling due to an IRS misinterpretation of the law, recommend IRC 7805(b) relief.

4. The following table recaps the situations described above:

Entity’s Determination Letter revoked due to:	Revocation effective date:	IRC 7805(b) Applicability:
Change in tax law or organization alters its operation after initial recognition of exemption	First day of first tax year in which organization altered its operations or the law changed	Not necessary, but taxpayer may request a TAM if disputing whether it altered its operations
Omission or misstatement of material facts by the applicant organization	Retroactive to the first day of the first tax year	Not Available
Misinterpretation of law by IRS	Determined by IRC 7805(b) relief	Applies. Recommend requesting relief

Note: In revocation cases, advise the organization of the provisions of IRC 7805(b).

(1) When the Group Manager recommends granting 7805(b) relief, the examiner prepares and sends a Recommendation Memo to the Director, see the sample memo in Exhibit 4.70.16-1. For purposes of this section the Director:

1. Employee Plans – Director is either, EP Examinations or Rulings and Agreements Director, as appropriate

2. Exempt Organizations – Director is either Examinations or Rulings and Agreements Director, as appropriate

(2) The Group Manager routes the Recommendation Memo through their Area Manager/Program Manager for review and approval.

(3) When the Director:

1. Concurs that relief is appropriate; they acknowledge concurrence on the Recommendation Memo and signs and returns the Recommendation Memo to the examiner and Group Manager to associate with the case file. The examiner prepares an individually designed letter notifying the taxpayer that IRC 7805(b) relief was granted.

2. Disagrees with the Group Manager’s recommendation to grant relief, they send the Request File to TEGEDC to obtain their legal opinion

(4) TEGEDC reviews the request and provides a memorandum (Legal Opinion Memo) responding to the Director. When the TEGE Division Counsel Legal Opinion Memo:

1. Agrees with the Director in denying relief, the Director will provide the denial rationale directly on the Recommendation Memo, sign the Recommendation Memo, and return the memos (Recommendation Memo and Legal Opinion Memo) to the examiner and Group Manager for association with the case.

   Note: The examiner must prepare an individually designed letter to notify the taxpayer that IRC 7805(b) relief was denied.

2. Disagrees with the Director and recommends granting relief, the Director will contact TEGEDC to discuss and resolve the matter.

(5) If the final resolution is to:

1. Grant IRC 7805(b) relief, the Director acknowledges agreement on the Recommendation Memo, and signs and returns the Recommendation Memo, along with the TEGEDC Legal Opinion Memo, to the examiner and Group Manager to associate with the case file. The examiner prepares an individually designed letter to notify the taxpayer that IRC 7805(b) relief was granted.

2. Deny IRC 7805(b) relief, the Director provides the rationale for the denial directly on the Recommendation Memo, signs the Recommendation Memo, and return the memos (Recommendation Memo and Legal Opinion Memo) to the examiner and Group Manager to associate with the case file.

   Note: The examiner must prepare an individually designed letter to notify the taxpayer that IRC 7805(b) relief was denied.

(1) When the Group Manager recommends denying IRC 7805(b) relief or determines further consideration is warranted, the manager sends the Request File to TEGEDC for their legal opinion. TEGEDC will respond in the form of a memorandum (Legal Opinion Memo).

(2) When the TEGEDC Legal Opinion Memo supports denial of IRC 7805(b) relief, the examiner prepares and provides a Recommendation Memo to the Director, see the sample memo in Exhibit 4.70.16-1, Recommendation Memo. For purposes of this section, the Director is:

1. Employee Plans – Director is either, Examinations or Rulings and Agreements Director, as appropriate

2. Exempt Organizations – Director is either Examinations or Rulings and Agreements Director, as appropriate

(3) The Group Manager sends the Recommendation Memo through their Area Manager/Program Manager for review and approval.

(4) When the Director:

1. Agrees to deny relief, the Director will acknowledge concurrence directly on the Recommendation Memo, sign the Recommendation Memo, and return the memos (Recommendation Memo and Legal Opinion Memo) to the examiner and Group Manager for association with the case file. The examiner must prepare an individually designed letter notifying the taxpayer that IRC 7805(b) relief was denied.

2. Disagrees with the Group Manager’s decision to deny relief, the Director will contact the appropriate TEGEDC to discuss and resolve the matter.

(5) If the final resolution is to:

1. Grant IRC 7805(b) relief, the Director will acknowledge agreement directly on the Recommendation Memo, sign the Recommendation Memo, and return the memos (Recommendation Memo and Legal Opinion Memo) to the examiner and Group Manager for association with the case file. The examiner prepares an individually designed letter to notify the taxpayer that IRC 7805(b) relief was granted.

2. Deny IRC 7805(b) relief, the Director will provide the rationale for denial directly on the Recommendation Memo, sign the Recommendation Memo, and return the memos (Recommendation Memo and Legal Opinion Memo) to the examiner and Group Manager for association with the case file.

   Note: The examiner must prepare an individually designed letter to notify the taxpayer that IRC 7805(b) relief was denied.