Part 13. Taxpayer Advocate Service

Chapter 1. Taxpayer Advocate Case Procedures

Section 20. TAS Taxpayer Assistance Orders (TAOs)

13.1.20 TAS Taxpayer Assistance Orders (TAOs)

Manual Transmittal

June 14, 2023

Purpose

(1) This transmits revised IRM 13.1.20, Taxpayer Advocate Service (TAS), Taxpayer Advocate Case Procedures, TAS Taxpayer Assistance Orders (TAOs).

Material Changes

(1) 13.1.20.1, Program Scope and Objectives, was added to comply with internal control requirements.

(2) 13.1.20.2, Addressing Taxpayer Problems, was added to provide context for the TAO process. It also incorporates content from former 13.1.20.2, Determining When to Issue a Taxpayer Assistance Order.

(3) 13.1.20.2 (4), Addressing Taxpayer Problems, was clarified to add that if the Operating Division determines that the law or facts do not support the relief, it should provide TAS with all relevant facts, documentation, authorities, and analysis to justify its position. Similarly, if the OD/function raises a concern in its appeal and TAS discovers or develops additional facts, documentation, or authorities that relate to this concern, then TAS should provide the OD/function with the new information. The paragraph also adds that TAS may ask the OD/function to reconsider its initial response if there are additional facts, documentation, or authorities. Finally, if the additional facts, documentation, or authorities that TAS discovers or develops indicate that the relief requested in the TAO is not warranted, TAS should rescind the TAO.

(4) 13.1.20.3, Determining When to Issue a Taxpayer Assistance Order, was renumbered and some of the section’s former content was moved to 13.1.20.1 and 13.1.20.2.

(5) 13.1.20.4, Terms of a TAO, replaces and expands upon the content in former sections 13.1.20.3, Purpose of a Taxpayer Assistance Order and 13.1.20.3.1, Terms of a TAO. It also adds examples drawn from the regulations.

(6) 13.1.20.5, TAO Administrative Process, from Issuance to Closure, expands the content of former section 13.1.20.4, Steps to Take When Issuing a TAO and incorporates new guidance for recording and tracking TAOs. It also updates special procedures for TAOs to Criminal Investigation which were moved from former section 13.1.20.3, Purpose of Taxpayer Assistance Orders. These procedures were drawn from regulations, updated and approved by the Chief of Criminal Investigation. Section 13.1.20.5 also incorporates special procedures for cases involving the seizure of personal residences, which were moved from former section 13.1.20.6, Principal Residence Seizure and updated. The section also reminds TAS employees to work with the Operating Division/function to protect any applicable statutes of limitation (such as a Collection Statute Expiration Date (CSED) or an Assessment Statute Expiration Date (ASED)) and flag them in the TAO. A correlative update was added to Exhibit 13.1.20-1, Taxpayer Assistance Order Check List.

(7) 13.1.20.5(1), Administrative Process, from Issuance to Closure, now includes that the TAO must mention the Taxpayer Bill of Rights (TBOR) in the TAO. Specific references to the appropriate right(s) from TBOR must be mentioned.

(8) 13.1.20.5(4), Administrative Process, from Issuance to Closure, now includes guidance that the LTA should provide a reasonable timeframe for the IRS to both respond and take the action(s) based on the facts and circumstances of the case.

(9) 13.1.20.6, TAO Appeals Process, added a paragraph (2) which encourages all parties to the TAO appeal process to dialogue with each other prior to a final decision being made on the action sought by TAS in the TAO by a deciding official.

(10) 13.1.20.6, TAO Appeals Process, expands upon former section 13.1.20.5, TAO Appeals Process, by describing the roles of local office employees and Deputy Executive Directors Case Advocacy (DEDCAs) during TAO appeals, establishing more realistic deadlines (e.g., generally five (5) to ten (10) workdays for field employees, rather than one (1) workday and generally thirty (30) workdays for heads of office, rather than two (2) workdays) and providing more detailed information on how appeals will be worked in the national office. This section also provides that the Executive Director Case Advocacy (EDCA) will now consider TAO appeals.

(11) 13.1.20.6.1(1)(b), Role of OD/function Officials, includes guidance that if the responsible official does not agree to the terms of the TAO, they will provide written explanations which will identify the items that are agreed to by the responsible official, as well as those items where disagreement exists. The written explanations should provide enough information so that someone unfamiliar with the case would understand the official’s disagreement with TAS.

(12) 13.1.20.6.1(1)(c), Role of OD/function Officials, includes guidance that allows the issuing official to ask the responsible official to reconsider the TAO if the issuing official provides new information (new facts, documentation, or authorities), when such information addresses the responsible official’s concerns with the action sought in the TAO.

(13) 13.1.20.6.1(2), Role of OD/function Officials, includes guidance that if the responsible official does not provide a written response regarding whether they plan to appeal a TAO by the response date, the failure may be deemed an appeal of the TAO.

(14) 13.1.20.6.5, Role of the NTA, removed reference to the Commissioner of Internal Revenue.

(15) 13.1.20.6.5.1(1), National Taxpayer Advocate (NTA) Communications with Head of Office, clarifies that generally, from the time the NTA receives the appeal of the TAO, the NTA will, within thirty (30) calendar days (formerly workdays), rescind, sustain, or modify a TAO by issuing a memo to the OD/function’s head of office. The paragraph also changes the time frame from 15 days to thirty (30) calendar days, the time that the NTA will generally allow for a response. Depending on the taxpayer’s situation, the NTA may grant a reasonable extension.

(16) 13.1.20.6.5.1(4), National Taxpayer Advocate (NTA) Communications with Head of Office, clarifies that after the NTA receives an appeal from the head of office, the NTA may require the head of office to reconsider the TAO based on new facts, law, or authorities.

(17) 13.1.20.6.5.2(2), NTA Communication with a Deputy Commissioner, was added to explain that while IRC 7811(c) specifies that either the Commissioner of Internal Revenue or a Deputy Commissioner of Internal Revenue is authorized to modify or rescind a TAO, TAS will direct its appeals to a Deputy Commissioner of Internal Revenue. Consequently, other references to the Commissioner of Internal Revenue were removed from the IRM.

(18) 13.1.20.6.5.2(5), NTA Communication with a Deputy Commissioner, clarified that the NTA may require the appropriate Deputy Commissioner of Revenue to reconsider the TAO determination in light of new facts, documentation, or authorities. In addition, this paragraph provides that if a request for reconsideration is warranted, the NTA will provide a supplemental memo to the Deputy Commissioner with the new facts, documentation, or authorities within 14 calendar days of receiving the determination from the Deputy Commissioner. The paragraph provides that the NTA may be granted a reasonable extension if warranted.

(19) 13.1.20.7, Release of TAOs and Written IRS Responses, incorporates Interim Guidance Memorandum (IGM) TAS-13-0217-003, Interim Guidance on the Release of Taxpayer Assistance Orders and Written IRS Responses (February 23, 2017), which helps to ensure that TAS employees only release TAO materials with the National Taxpayer Advocate’s approval.

(20) Exhibit 13.1.20-5, Taxpayer Assistance Order, Form 9102, Writing Guidelines, contains information previously presented in IRM 13.1.20.4.1, Taxpayer Assistance Order, Form 9102, Writing Guidelines.

(21) Exhibit 13.1.20-6, Legislative History of TAO Authority describes legislative changes to the NTA’s authority to issue TAOs.

(22) IRM 13.1.20 contains editorial and grammatical changes throughout the IRM.

Effect on Other Documents

This IRM supersedes IRM 13.1.20, Taxpayer Advocate Service, Taxpayer Advocate Case Procedures, TAS Taxpayer Assistance Order (TAO) Process, dated May 3, 2016.

Audience

Primarily Taxpayer Advocate Service (TAS) employees.

Effective Date

(06-14-2023)


Jennifer K. Cones
Acting Executive Director Case Advocacy, Intake and Technical Support (EDCA ITS)

13.1.20.1 (06-14-2023)

Program Scope and Objectives

  1. Purpose: IRC 7811 authorizes the National Taxpayer Advocate (NTA) to issue orders, called Taxpayer Assistance Orders (TAOs), to assist taxpayers who are suffering or are about to suffer a significant hardship as a result of the manner in which the internal revenue laws are being administered by the IRS. This section contains the procedures for issuing, modifying, appealing, and rescinding TAOs.

  2. Audience: The primary users of this Internal Revenue Manual (IRM) are TAS Case Advocacy employees, the NTA, and the NTA’s staff.

  3. Policy Owner: The National Taxpayer Advocate.

  4. Program Owner: The Executive Director Case Advocacy - Intake and Technical Support.

13.1.20.1.1 (06-14-2023)

Authority

  1. IRC 7811 and Treas. Reg. 301.7811-1 provide authority for the NTA to issue TAOs.

  2. Delegation Order 13-1 (Rev. 1), grants Local Taxpayer Advocates (LTAs) the authority to issue TAOs. Applying the principles of IRM 1.11.4.5.2, Documenting Intervening Position Authority in Delegation Orders, the TAS managers above LTAs, including DEDCAs (formerly known as Area Directors), the EDCA and the Deputy National Taxpayer Advocate (DNTA) also have the delegated authority to issue, modify or rescind TAOs.

    Note:

    Although this Delegation Order is in IRM 1.2.2, Servicewide Delegations of Authority, with other delegation orders signed by the Commissioner, it is not a Commissioner’s delegation order because the TAO authority comes from a statute (IRC 7811), and the statute authorizes the NTA to redelegate.

  3. The Taxpayer Bill of Rights (TBOR) lists rights that already existed in the tax code, putting them in simple language and grouping them into 10 fundamental rights. Employees are responsible for being familiar with and acting in accord with taxpayer rights. See IRC 7803(a)(3), Execution of Duties in Accord with Taxpayer Rights. For additional information about the TBOR, see Taxpayer Bill of Rights.

13.1.20.1.2 (06-14-2023)

Roles and Responsibilities

  1. Case Advocates (CAs) identify cases where a TAO may be necessary and elevate these cases to the LTA following the procedures set forth in this IRM.

  2. LTAs issue TAOs and participate in the TAO appeal process following the procedures set forth in this IRM.

  3. The IRS official to whom a TAO is addressed (i.e., the responsible official, and others in their management chain) timely respond to the TAO by either complying with or appealing the TAO. If the responsible official (or others in the management chain) appeals, they must provide a written explanation. At any point in the process, the responsible official (or anyone in their management chain) may request a meeting with TAS to discuss resolution of the TAO.

  4. The LTA, DEDCA, EDCA, DNTA, or the NTA, as applicable, participate in the TAO appeal process.

  5. Pursuant to IRC 7811(c), if the Deputy Commissioner of Internal Revenue (DCIR) modifies or rescinds a TAO, they must provide a written explanation to the NTA of the reasons for doing so.

13.1.20.1.3 (06-14-2023)

Program Management and Review

  1. Annual Reports to Congress: Each year, the NTA is required to report directly to the Committee on Ways and Means of the House of Representatives and the Committee on Finance of the Senate on the activities of the Office of the Taxpayer Advocate. IRC 7803(c)(2)(B)(ii)(VII) requires that these annual reports identify any TAO that was not honored by the IRS in a timely manner.

  2. Program Reports: TAS’s office of Technical Analysis and Guidance (TAG) maintains the TAO database which is designed to track statistical data concerning TAOs. The TAO database is routinely reconciled with the Taxpayer Advocate Management Information System (TAMIS) Taxpayer Screen 6 via Business Objects Enterprise (BOE) reporting.

  3. Program Effectiveness: TAS uses a balanced measures system that contains measurements on the effectiveness of TAS’s advocacy efforts, including the use of the TAO as a tool to advocate for taxpayers. See IRM 13.5.1, TAS Balanced Performance Measurement System.

    Note:

    The number of TAOs issued by an employee is a Record of Tax Enforcement Result (ROTER). ROTERs will not be used to evaluate individual employees. See IRM 1.5.2, Managing Statistics in a Balanced Measurement System, Uses of Section 1204 Statistics.

13.1.20.1.4 (06-14-2023)

Terms

  1. See Exhibit 13.1.20-3 for a list of terms and definitions used throughout this IRM.

13.1.20.1.5 (06-14-2023)

Acronyms

  1. See Exhibit 13.1.20-4 for a list of acronyms used throughout this IRM.

13.1.20.1.6 (06-14-2023)

Related Resources

  1. TAS employees will use Form 9102, Taxpayer Advocate Service (TAS) Taxpayer Assistance Order, when issuing TAOs.

  2. This is a list of relevant IRMs that TAS employees will use when issuing a TAO:

    • IRM 1.2.2.12.1, Delegation Order 13-1 (Rev. 1), Authority to Issue, Modify or Rescind Taxpayer Assistance Orders;

    • IRM 13.1.4, TAS Authorities;

    • IRM 13.1.5, Taxpayer Advocate Service (TAS) Confidentiality;

    • IRM 13.1.14, Suspension of the Statutes of Limitations Under IRC 7811(d);

    • IRM 13.1.18, Processing TAS Cases;

    • IRM 13.1.19, Advocating With Operations Assistance Requests (OARs); and

    • IRM 13.1.24, Advocating for Case Resolution.

13.1.20.2 (06-14-2023)

Addressing Taxpayer Problems

  1. A TAO is a powerful statutory tool, delegated by the NTA to LTAs to resolve taxpayer problems. An LTA will issue a TAO to order the IRS to take any action as permitted by law, cease a certain action, or refrain from taking a certain action. A TAO may not make a substantive determination of any tax liability (see IRM 13.1.20.4(4) for further clarification). A TAO may also order the IRS to expedite consideration of the taxpayer’s case, reconsider its determination in a case or review the case at a higher level. If TAS determines that a taxpayer faces significant hardship and the facts and the law support relief, an LTA may issue a TAO when the IRS refuses or otherwise fails to take the action that TAS requested to resolve the case.

  2. A TAO is generally part of a larger process of communication between a taxpayer, TAS and the Operating Division (OD)/function. Before issuing a TAO, TAS has had a conversation with the OD/function and may have issued an Operations Assistance Request (OAR) in an attempt to resolve the matter.

  3. Generally, a TAO is issued on a single case after TAS and the OD/function fail to agree on the proper resolution of the issue(s) in the case. In appropriate circumstances, however, a bulk TAO can be issued.

  4. When the OD/function appeals the TAO or a portion of it, the OD/function must provide a written explanation, and may, if applicable, suggest alternative actions to those ordered in the TAO. It is in TAS’s discretion to adopt or reject such alternatives.

  5. In order to resolve the issue as quickly as possible, the parties should be forthcoming about the facts and the law that are relevant to the requested relief. If, for example, the IRS responds that it cannot comply with a TAO because the law or facts do not support the relief, then it should provide TAS with all relevant facts, documentation, authorities, and analysis to justify its position. Similarly, if the OD/function raises a concern in its appeal and TAS discovers or develops additional facts, documentation, or authorities that relate to this concern, then TAS should provide the OD/function with the new information. TAS may also ask the OD/function to reconsider its initial response if there are additional facts, documentation, or authorities. Finally, if the additional facts, documentation, or authorities that TAS discovers or develops indicate that the relief requested in the TAO is not warranted, TAS must rescind the TAO.

13.1.20.3 (06-14-2023)

Determining When to Issue a Taxpayer Assistance Order

  1. When a CA encounters a situation where an agreement with the OD/function cannot be reached on the action needed to resolve a case, the CA must immediately elevate the case to the LTA. Prior to elevating the case to the LTA, the CA may have a conversation with the Lead Case Advocate (LCA) or group manager.

    Note:

    The only requirement before issuing a TAO is that a conversation takes place between TAS and the Responsible Official in the OD/function with respect to the requested action. Although it is not necessary to issue a Form 12412, Operations Assistance Request (OAR), before issuing a Form 9102, Taxpayer Advocate Service (TAS) Taxpayer Assistance Order, in most cases the CA will issue an OAR prior to a TAO, if time permits. If no agreement can be reached, consider the issuance of a TAO. See IRM 13.1.19.5, OARs - Operating Division or Functional Unit Disagrees - Action Not Taken, for additional information.

  2. The CA must ensure the TAMIS history and the related case folder are well documented for review. If the CA (or another person in the office with knowledge of the case, such as the LCA or TAGM) has not discussed the case with the LTA prior to the case being elevated for the issuance of a TAO, it is recommended that the CA prepare a summary of the case for the LTA. The summary should include the subject of the dispute with the IRS, the actions and the dates of the actions taken by TAS to resolve the dispute, the legal or administrative authority involved in the dispute (the IRM, the IRC, etc.), the position of the IRS regarding the dispute, the name, position, and telephone number of the OD/function person who is refusing to take the requested action, and the OD’s/function’s basis for the refusal to take the action.

  3. LTAs should consider issuing a TAO when all of the following factors are present:

    1. The taxpayer is suffering or is about to suffer a significant hardship if relief is not granted. A significant hardship, which is generally defined in Treas. Reg. 301.7811-1(a)(4)(ii), includes but is not limited to the following situations:
      i. An immediate threat of adverse action.
      ii. A delay of more than 30 days in resolving taxpayer account problems. Such delay exists, for example:
      1. When a taxpayer does not receive a response by the date promised by the IRS; or
      2. When the IRS has established a normal processing time for taking an action and the taxpayer experiences a delay of more than 30 days beyond the normal processing time.
      iii. The incurring by the taxpayer of significant costs (including fees for professional representation) if relief is not granted.
      iv. Irreparable injury to, or long-term adverse impact on, the taxpayer if relief is not granted.
      v. Situations in which a system or procedure fails to operate as intended or fails to resolve the taxpayer’s problem or dispute with the IRS.
      vi. A serious privation. See IRM 13.1.18, Resolving TAS Cases.

      Note:

      When evaluating whether to issue a TAO, a significant hardship must exist at the time the TAO is issued. A prior IRC 7811 determination establishing a significant hardship is insufficient.

      Note:

      A determination that a taxpayer is experiencing a significant hardship, which is required before issuing a TAO under IRC 7811, is not the same as determining that the taxpayer is experiencing an economic hardship, which is required for purposes of releasing a levy under IRC 6343(a)(1)(D) and Treas. Reg. 301.6343-1(b)(4).

    2. The significant hardship results from the manner in which the IRS is administering the internal revenue laws.

    3. TAS determines that the facts and the law support the relief (i.e., the IRS is authorized to comply with the TAO, as discussed in IRM 13.1.20.4(2)).

    4. TAS does not have the authority to take the actions needed to grant relief to the taxpayer or to resolve the problem.

    5. The OD/function does not agree with TAS on the proper resolution of the problem or the IRS fails to perform the actions recommended by TAS.

  4. In cases where any IRS employee is not following applicable published administrative guidance (including the IRM), TAS is required by IRC 7811(a)(3) to analyze the factors in determining whether to issue a TAO in the manner most favorable to the taxpayer.

  5. Pursuant to Treasury Regulation 301.7811-1(d), a TAO may be issued to any IRS office, OD or function, including the IRS Independent Office of Appeals (Appeals), with the following exceptions:

    1. Generally, a TAO may not be issued to the Office of Chief Counsel.

    2. For TAOs to Criminal Investigation (CI), special rules apply. See IRM 13.1.20.5.1.1, Cases Involving Criminal Investigation.

    Note:

    Cases under the jurisdiction of Appeals are solely adjudicated by them and although a TAO may be issued, TAS will not order Appeals to make a substantive determination of any tax liability or a specific outcome. However, TAS may issue a TAO ordering Appeals to refrain from issuing a final determination and reconsider or review at a higher level its decision. The TAO may include the NTA’s analysis of, and recommendation for, resolving the case.

13.1.20.4 (06-14-2023)

Terms of a TAO

  1. IRC 7811(b)(1) and (2) and Treas. Reg. 301.7811-1(c) provide that a TAO may require the IRS to, within a specified time, release a levy, cease any action, take any action permitted by law, or refrain from taking any action, with respect to a taxpayer under:

    1. Chapter 64 (relating to collection)

    2. Subchapter B of Chapter 70 (relating to bankruptcy and receiverships);

    3. Chapter 78 (relating to discovery of liability and enforcement of title); or

    4. Any other provision of the law which is specifically described in the TAO.

    Example:

    A taxpayer’s property is levied by the IRS and the taxpayer contacts TAS for assistance. TAS determines that the case meets TAS criteria and that the taxpayer has an economic hardship (within the meaning of Treas. Reg. 301.6343-1(b)(4)) and a significant hardship. TAS accepts the case. IRC 6343 provides that the IRS must release a levy that is creating an economic hardship. After discussing the case with the OD/function, the OD/function sustains the levy. Per IRC 7811(b)(1), the LTA may issue a TAO ordering the IRS to release the levy, thus, alleviating the taxpayer’s economic hardship.

    Example:

    The facts are the same as in the example above. IRS has levied property that it plans to sell. TAS determines that the sale will result in a significant hardship and should be delayed. The seizure and sale provisions are under Chapter 64 of the Internal Revenue Code. They give the IRS discretion about when it may issue a notice of sale for the property. Per IRC 7811(b)(2)(A), the LTA may issue a TAO requiring the IRS to delay issuing the notice of sale.

    Example:

    A taxpayer files a protest requesting Appeals consideration of Exam’s proposed denial of their request for innocent spouse relief. After Appeals informs the taxpayer that it plans to sustain Exam’s determination, they seek assistance from TAS. TAS determines that an adverse determination by Appeals would result in a significant hardship. Based on the administrative record and additional documentation provided by the taxpayer, TAS believes that Appeals should grant innocent spouse relief under IRC 6015. Per IRC 7811 (b)(2)(D), the LTA may issue a TAO ordering Appeals to reconsider its decision to deny innocent spouse relief based on the additional documentation provided to TAS by the taxpayer.

  2. A TAO may only order actions that are permitted by law and supported by the facts of the case. When deciding whether to issue a TAO, TAS makes the determination about whether the facts and the law support relief for the taxpayer. For purposes of this determination, TAS may request a legal opinion from the IRS Office of Chief Counsel. See IRM 13.1.10.2, Obtaining Legal Advice from Chief Counsel.

    Example:

    A taxpayer contacts TAS for assistance and TAS determines that the case meets TAS criteria. The taxpayer is experiencing a significant hardship. The taxpayer recently submitted a refund claim. The IRS denied the refund claim as untimely under IRC 6511. TAS uncovers relevant facts or authorities that the IRS did not consider. TAS determines that the law and the facts support the refund claim, which is timely. Therefore, the LTA may issue a TAO requiring the IRS reconsider issuing a refund.

    Example:

    The facts are the same as above. However, TAS determines that the law does not support the refund claim. Under IRC 6511, the IRS is not permitted to issue a refund under the facts of the case. Therefore, the LTA will not issue a TAO to advocate that the IRS to reconsider issuing a refund.

  3. A TAO is not a substitute for an established administrative or judicial review procedure, but is intended to supplement existing procedures.

    Example:

    A taxpayer asks TAS to get them a Collection Due Process (CDP) hearing in response to a Notice of Federal Tax Lien (NFTL) filing. Taxpayers may request CDP hearings within 30 days of a CDP notice under IRC§ 6320(a)(3). More than 60 days have elapsed since the IRS sent the notice. TAS will not advocate for a CDP hearing because the period for requesting a hearing has expired. However, TAS can help the taxpayer request and receive an Equivalent Hearing (EH), a lien release, or an NFTL withdrawal, if it determines that the facts and the law support such other forms of relief.

    Reminder:

    If TAS determines that an IRS employee is not following applicable published administrative guidance, TAS is required by IRC 7811(a)(3) to analyze the factors considered in determining whether to issue a TAO in the manner most favorable to the taxpayer.

  4. A TAO may not order the IRS to make a specific substantive determination of any tax liability, such as granting innocent spouse relief, accepting an offer in compromise (OIC), or otherwise determining a person’s tax liability. However, a TAO may advocate for a specific substantive determination. It may require the IRS to review the facts and the law and consider them in reaching a determination. In such cases, the TAO may include an analysis by TAS that applies the applicable law and other guidance to the facts.

  5. Even in situations where TAS may not order the IRS to make a particular substantive determination, it may order the IRS to:

    • Expedite consideration of a case;

    • Reconsider its determination in a case; or

    • Review a case at a higher level.

  6. When a TAO orders the OD/function to expedite, reconsider, or review a case at a higher level, and TAS is advocating for a particular substantive determination, the TAO should include a written explanation of why it is appropriate for the IRS to make the determination.

    Example:

    A taxpayer files a protest requesting Appeals consideration of the IRS’s proposed denial of their request for innocent spouse relief. Appeals advises that it is going to issue a Final Determination denying the request for innocent spouse relief. The taxpayer files Form 911, Request for Taxpayer Advocate Service Assistance (And Application for Taxpayer Assistance Order). The LTA determines an adverse determination would result in a significant hardship. The LTA reviews the administrative record and concludes that the facts support granting innocent spouse relief. The LTA may not order the IRS to grant innocent spouse relief because that is a substantive determination. The LTA may issue a TAO ordering Appeals to refrain from issuing a Final Determination and reconsider or review at a higher level its decision to deny innocent spouse relief. The TAO should also include TAS’s analysis of and recommendation for resolving the case.

    Note:

    In cases within Appeals jurisdiction, if there are litigation hazards for the IRS, then the LTA may advocate for Appeals to consider them. Neither Examination nor Collection consider litigation hazards.

    Example:

    If the IRS levies an elderly taxpayer’s property to satisfy an entire liability, the taxpayer will have insufficient income and assets to provide for basic living expenses during retirement. The taxpayer submits an Offer in Compromise (OIC) based on equity and public policy, proposing to pay a portion of the liability and retain the excess equity for basic living expenses in retirement. The LTA may not order the IRS to accept the OIC because that is a substantive determination, but the LTA may order the IRS to expedite its review of the OIC and consider the taxpayer’s argument. The TAO should include TAS’s analysis and recommendation for resolving the case.

    Example:

    The Offer Examiner (OE) does not consider all of the information that a taxpayer timely submitted in connection with their application for an OIC and proposes rejecting the offer. It may be appropriate for TAS to issue a TAO ordering the OE to reconsider the determination based on all of the information. The TAO should include TAS’s analysis of the information and a recommendation for resolving the case. If the OE considered all of the information, but TAS disagrees with the outcome, it may be appropriate for TAS to issue a TAO ordering the OE to elevate the offer for review at a higher level or to assist with the OIC appeals process. See IRM 13.1.21.2.2.22.3, OIC Appeals Review, and IRM 8.1.9.3, Operations Assistance Request (OAR) From the Taxpayer Advocate Service (TAS).

13.1.20.5 (06-14-2023)

TAO Administrative Process, from Issuance to Closure

  1. When the LTA has determined that the issuance of a TAO is necessary, the LTA should prepare a briefing document by completing the Form 9102, which contains the following:

    1. The taxpayer’s name, address, TIN, tax period involved, and type of tax involved;

    2. The name, position, address, telephone and fax numbers of the IRS official to whom the TAO is issued;

    3. Actions required to relieve the taxpayer’s significant hardship;

    4. The date the required action should be taken;

    5. The date by which the OD/function should notify TAS whether the required action will be taken;

    6. Basis for issuance of TAO (i.e., the significant hardship that the taxpayer is experiencing or is about to experience as a result of the actions or inactions of the IRS);

    7. Relevant facts of the case;

    8. Applicable authorities (e.g., IRC, Treasury Regulations, revenue rulings, revenue procedures, cases, notices, IRMs, Counsel opinions, IRS FAQs);

    9. The taxpayer rights being affected by the actions or inactions of the IRS. Specific references to the appropriate right(s) from TBOR must be mentioned.

    10. Analysis (application of applicable authorities to the facts of the case);

    11. Prior relevant contacts with the OD/function which include the name, date, and telephone number;

    12. A chronological timeline of relevant actions in the case;

    13. List of relevant attachments;

    14. The name, address, and telephone number of the LTA issuing the TAO; and

    15. The signature of the LTA.

    Note:

    Form 9102 should be used when issuing TAOs. It is an electronic form that includes all the required elements mentioned in (1) above. However, TAS has developed TAO templates to be used in special situations, (e.g., Passport, Return Preparer Misconduct, etc.). If a case does not involve a special situation, these templates should not be used.

  2. LTAs must use the TAO Checklist to ensure the necessary steps have been taken prior to issuing a TAO. See Exhibit 13.1.20-1.

  3. Document the significant hardship determination. See IRM 13.1.18.9, Making an IRC 7811 Significant Hardship Determination, for more information. A significant hardship MUST exist at the time the TAO is issued.

  4. When determining both the date by which the OD/function should notify TAS of its response and the date by which the OD/function should take the action specified in the TAO, the LTA should provide a reasonable timeframe for the IRS to both respond and take the action(s) based on the facts and circumstances of the case.

  5. The TAO should remind the OD/function about the imminent expiration of any relevant limitations periods.

  6. In deciding to issue a TAO, the LTA may consult with Internal Technical Advisor Program (ITAP) employees as well as Technical Analysis and Guidance (TAG) employees. If questions remain after consulting with ITAP and TAG, the LTA may consult with the DEDCA or their staff, the NTA’s staff (e.g., analysts, tax legal specialists, or attorney advisors), and the Office of the Division Counsel/Associate Chief Counsel (NTA Program) (if advice is needed on issuing or drafting the TAO). If legal advice is needed, generally the field offices of the Division Counsel (Small Business/Self Employed) provide legal support or advice to TAS. See IRM 13.1.10.2, Obtaining Legal Advice from Chief Counsel. If, however, legal advice is needed about the TAO authority in general or the scope of a TAO, consult the Office of the Division Counsel/Associate Chief Counsel (NTA Program).

  7. When a TAO is issued, a copy of Form 9102 or a briefing document must be sent to the “&TAS TAO” Outlook distribution list, via secured email, with a copy uploaded to TAMIS Attachments. See IRM 13.1.11.2.1.4, Document Attachments.

  8. When a TAO is issued, the LTA or other designated TAS employee with TAMIS permission level 4 or above must add a TAO record to TAMIS Taxpayer Screen 6. The following TAMIS fields are required:

    1. TAO Issue Date;

    2. TAMIS Issue Code;

      Reminder:

      The TAO Issue Code is specific to the issue addressed in the TAO; this issue may differ from the Primary Core Issue Code (PCIC). For example, if the taxpayer came to TAS for a levy release, the case PCIC may be 710 even if the TAO orders the IRS to consider a DDIA, which is issue code 753. In this example, the TAO issue code should be 753. The TAO Issue Code should never be the generic codes 000, 100, 200, 300, 400, 500, 600, 700, 800, or 900.

    3. TAO Requested Completion Date;

    4. BOD TAO Assigned and BOD & Unit;

      Reminder:

      The BOD TAO Assigned, and BOD Unit fields should correspond with the information obtained from the TAMIS OAR Drill Down Tables and Discovery Directory for the recipient of the TAO. This field is fillable either by using the drop-down menu or, when a drop-down option is not available, the coding can be typed in the field using all CAPS.

    5. Form 9102 Checkbox;

    6. TAO Resolution Requested;

    7. Reason for TAO; and

    8. Status.

  9. When a written appeal is received, the issuing official, usually the LTA, will upload a copy of the appeal to TAMIS Attachments, forward a copy to the “&TAS TAO” Outlook distribution list and update the following fields on TAMIS Taxpayer Screen 6:

    1. Status; and

    2. TAO Appeal Section.

      Note:

      Not every TAO is appealed by the OD/function. However, for those TAOs that are appealed, TAMIS Taxpayer Screen 6 should be updated in real-time as the appeal progresses. All communications and documents, including sustaining memoranda and subsequent OD/function appeals relating to the TAO must be uploaded to TAMIS Attachments and a copy should be sent to the “&TAS TAO” Outlook distribution list

      .

  10. When the TAO (and TAO appeal process, in certain cases) is completed, the LTA will upload a copy of the completed TAO, if available, to TAMIS Attachments and send a copy to the “&TAS TAO” Outlook distribution list. Additionally, the issuing official will update the following fields on TAMIS Taxpayer Screen 6:

    1. Disposition of TAO;

    2. Relief Code;

    3. Relief Date;

    4. Assistance Code; and

    5. TAO Closed Date.

    Caution:

    A TAMIS case must NEVER be closed while a TAO is open. The case must remain open pending the outcome of the TAO and TAMIS Taxpayer Screen 6 must be fully completed.

13.1.20.5.1 (06-14-2023)

Special Situations Requiring Higher Approval of TAOs

  1. There are two situations in which TAOs require special handling:

    • Cases involving the Criminal Investigation function (CI); and

    • Cases involving the seizure of a principal residence.

13.1.20.5.1.1 (06-14-2023)
Cases Involving Criminal Investigation

  1. Due to the sensitivity surrounding a criminal investigation, a TAO will not be issued to CI if the Chief of CI determines that the action ordered in the TAO could reasonably be expected to impede a criminal investigation. See Treas. Reg. 301.7811-1(d) and IRM 13.1.10.9, Inquiries on Open Cases with Criminal Investigation Involvement.

  2. If a CI TC is noted, the LTA should contact the Special Agent in Charge (SAC) to attempt resolution. If, after discussing the case with the SAC, the LTA is unable to resolve the matter and determines that a TAO to CI may be required, the LTA should prepare a memo for the NTA outlining the facts of the case, the actions taken by TAS to resolve the case and the action required to achieve relief.

  3. If the NTA agrees that a TAO is appropriate, the NTA will discuss the case with the Chief of CI, who will promptly determine if a TAO could reasonably be expected to impede the criminal investigation. If the Chief of CI determines that it would, the TAO will not be issued. If the case is not otherwise resolved and the Chief of CI determines that a TAO would not reasonably be expected to impede a criminal investigation, the NTA may issue a TAO to the Chief of CI.

    Note:

    Only the NTA (or the DNTA if the NTA is recused) may issue a TAO to CI.

  4. No TAS employee may disclose to the taxpayer or representative:

    1. any internal discussion(s) of a potential TAO to CI;

    2. the Chief of CI’s final determination about whether a TAO would impede a criminal investigation; or

    3. a TAO issued to CI or the IRS’s response to any such TAO, except as required by law.

    Note:

    See IRM 13.1.10.9, Inquiries on Open Cases with Criminal Investigation Involvement, and IRM 13.1.20.7, Release of TAOs and Written IRS Responses

    .

13.1.20.5.1.2 (06-14-2023)
Cases Involving Principal Residence Seizure

  1. In cases of principal residence administrative seizures where the LTA determines relief is appropriate but the OD/function will not provide relief, the LTA will issue a TAO to the responsible official.

    Note:

    The IRS must secure judicial approval prior to the administrative seizure of a principal residence. See IRC 6334(e)(1); IRM 5.10.2.3, Judicial Approval for Principal Residence Seizures. After the government obtains judicial approval, the LTA cannot issue a TAO; instead, the LTA will contact the Office of the Division Counsel/Associate Chief Counsel (NTA Program) to assist with any further advocacy.

    Note:

    The rules regarding principal residence administrative seizures do not apply to judicial sales commenced under IRC 7403 because the courts order these sales to be conducted. Nor do they apply if TAS does not have jurisdiction (e.g., because the issue is being litigated). See IRM 13.1.10.10.1(4), Requests for Assistance in Which Counsel or the Department of Justice Has Jurisdiction.

  2. Upon review of the actions taken by the OD/function, there may be situations where the LTA agrees that the seizure can go forward. Because of the severity and sensitivity of personal residence seizures, the DEDCA will review the LTA’s determination for concurrence that the seizure should go forward. If the DEDCA disagrees with the LTA’s determination, the DEDCA should discuss the determination with the LTA.

13.1.20.5.2 (06-14-2023)

TAO Writing Guidelines

  1. The Form 9102, Taxpayer Advocate Service (TAS) Taxpayer Assistance Order, should be used when issuing a TAO unless there are special templates, as described in IRM 13.1.20.5. See Taxpayer Assistance Orders.

  2. All sections of the Form 9102 must be completed.

  3. For more detailed TAO writing guidelines, see Exhibit 13.1.20-5, Taxpayer Assistance Order, Form 9102 Writing Guidelines.

13.1.20.6 (06-14-2023)

TAO Appeal Process

  1. If the OD/function does not agree with the action ordered in a TAO, the OD/function can appeal the TAO. The responsible official or those in the responsible official’s management chain retain the ultimate responsibility for taking the action or declining to take the action ordered by a TAO.

  2. All parties to the TAO appeal process are encouraged to dialogue with each other prior to a final decision being made on the action sought by TAS in the TAO by a deciding official.

13.1.20.6.1 (06-14-2023)

Role of OD/function Officials

  1. Upon receipt of a TAO, the responsible official in the OD/function can either comply by taking the action ordered by the action date (i.e., the date specified in Box 4 of the Form 9102) or appeal the order by the response date (i.e., the date specified in Box 5 of the Form 9102).

    1. If the responsible official agrees to the terms of the TAO, they will advise TAS in writing of the agreement by the response date and complete the action ordered by the action date. Once the action has been taken, the responsible official will sign Form 9102 and return it to the issuing TAS official, usually the LTA, who will monitor the case to ensure any related actions are completed before the case is closed.

      Note:

      Upon notification that the responsible official agrees to take the action ordered in the TAO, the issuing TAS official or designee should notify TAG by emailing “&TAS TAO” and should update TAMIS.

    2. If the responsible official does not agree to the terms of the TAO, they will appeal the TAO by filling out and returning the Form 9102 or other document, as applicable, to the issuing official, along with a written explanation for the appeal on or before the requested response date. The written explanation will identify which items are agreed to by the responsible official, as well as those items where disagreement exists. For those items where there is disagreement, the responsible official’s written explanation should provide enough information so that someone unfamiliar with the case would understand the official’s disagreement with TAS. The responsible official may suggest alternatives for resolving the dispute.

    3. The appeal is directed to the issuing official so that they have an opportunity to resolve the dispute before elevating it (e.g., by modifying it or rescinding the TAO in response to the responsible official’s explanation). The issuing official may ask the responsible official to reconsider the TAO if the issuing official provides new information (such as new facts, documentation, or authorities), when such information addresses the responsible official’s concerns. In any event, the issuing official may have additional conversations with the responsible official at any time during the TAO process to determine whether the TAO should be modified, sustained, or rescinded.

      Note:

      If the responsible official needs additional time to determine whether to appeal or to reconsider their initial response to the TAO, they may seek an extension by contacting the issuing official before the original response date. TAS may deny or grant this request by taking into consideration the IRS constraints while weighing the impact on the taxpayer and any hardship that may occur to the taxpayer if the extension of time is granted.

    4. If TAS modifies the TAO, the responsible official will treat the modified TAO as a new TAO that they must agree to implement or appeal by the new response date. The issuing official will inform the responsible official if TAS rescinds the TAO.

  2. If the responsible official does not provide a written response regarding whether they plan to appeal a TAO by the response date, a failure to respond may be deemed an appeal of the TAO. In such cases, the issuing official will generally contact the manager of the responsible official in the OD/function to explain the TAO process. Following the discussion, the issuing official will either provide a revised response date or elevate it in accordance with the TAO appeal process.

  3. If the responsible official, at any time during the appeals process, has not received a response from the relevant TAS official (LTA, DEDCA, EDCA) within the timeframe established, the OD should contact the next level management of the relevant TAS official.

  4. The IRS will not take any action(s) that would prejudice the taxpayer with respect to the actions ordered by the TAO while a TAO or TAO appeal is pending (i.e., before the TAO is rescinded or modified by TAS, the Commissioner of Internal Revenue or the appropriate Deputy Commissioner under IRC 7811(c)).

13.1.20.6.2 (06-14-2023)

Role of LTAs During Appeal Process

  1. When a written appeal is received, the issuing official, usually the LTA, will upload a copy of the TAO appeal to TAMIS Attachments, forward a copy to the “&TAS TAO” Outlook distribution list and update the following fields on TAMIS Taxpayer Screen 6:

    1. Status; and

    2. TAO Appeal Section (updated in real-time as the TAO progresses).

  2. The LTA who issued the TAO will consider the responsible official’s written appeal.

  3. If the appeal raises new technical issues, the LTA may consult with ITAP. If necessary, the LTA may request a legal opinion from the local SB/SE Counsel office, per IRM 13.1.10.2, Obtaining Legal Advice from Chief Counsel, or consult with the Office of the Division Counsel/Associate Chief Counsel (NTA Program), the DEDCA or their staff, the EDCA’s staff, or the NTA’s staff (e.g., analysts. tax legal specialists, or attorney advisors). ITAP’s review of the TAO and the written appeal can help the LTA determine how to proceed.

  4. When appropriate, the LTA will ask the responsible official to reconsider the TAO based on new information (if any) that addresses the official’s concerns or have an additional conversation with the responsible official or their manager before elevating the TAO appeal to the DEDCA.

  5. Generally, the LTA will elevate the TAO appeal to the DEDCA within five (5) workdays after the LTA’s receipt of the written appeal or legal opinion from the responsible official. Additional time, however, may be needed to discuss the case with the OD/function to reconsider its appeal considering additional information provided by the LTA.

    If the LTA Then the LTA (generally within five (5) workdays)
    Rescinds the TAO

    • Discusses the TAO with the DEDCA, or if the DEDCA recommended that the LTA rescind the TAO, then the LTA first discusses the TAO with the EDCA.

    • Notifies the responsible official that the TAO was rescinded.

    • Prepares a memo supporting the decision to rescind the TAO, uploads a copy to TAMIS Attachments, and sends a copy to “&TAS TAO” Outlook distribution list.

    • Updates TAMIS Taxpayer Screen 6 per IRM 13.1.20.5(8).
    Modifies the TAO

    • Forwards the modified TAO (with a new response date) to the responsible official who prepared the initial written appeal for a response.

    • Uploads a copy to TAMIS Attachments and sends a copy to “&TAS TAO” Outlook distribution list.

    • Updates TAMIS Taxpayer Screen 6 per IRM 13.1.20.5(8).
    Sustains the TAO

    • Drafts a memo addressing each of the points raised by the TAO appeal and explaining the reasons for the sustentation determination.

    • Sends the sustentation memo to the DEDCA, uploads a copy to TAMIS Attachments, and sends a copy to “&TAS TAO” Outlook distribution list.

    • Prepares an electronic copy of the TAO case folder for the DEDCA in accordance with IRM 13.1.20-2, TAO Case Folder Assembly, including the written request for appeal and the TAO checklist.

    • Updates TAMIS Taxpayer Screen 6 per IRM 13.1.20.5(8).

  6. If the LTA for the District of Columbia (DC LTA) receives an appeal that they cannot resolve with the responsible official or their first or second level manager, the LTA elevates the appeal through the OD/function’s management chain to two levels below the OD/function’s head of office. If the case remains unresolved, the DC LTA prepares a sustentation memo and elevates the appeal to the EDCA’s office in the same manner as a DEDCA, described in IRM 13.1.20.6.4, below.

  7. If the responsible official does not provide a written response regarding whether they plan to appeal a TAO by the response date, a failure to respond may be deemed an appeal of the TAO. In such cases, the issuing official will generally contact the manager of the responsible official in the OD/function to explain the TAO process. Following the discussion, the issuing official will either provide a revised response date or elevate it in accordance with the TAO appeal process.

13.1.20.6.3 (06-14-2023)

Continuing Roles of CAs and LTAs

  1. Throughout the TAO appeal process, ownership of the TAS case continues to reside with the LTA and CA, even after a TAO is appealed to the DEDCA, EDCA, or NTA. A TAO may also be appealed, in certain circumstances, to the DNTA.

  2. The CA will continue to maintain contact with the taxpayer (or representative) and will work with the LTA to update TAMIS as facts change during the TAO appeal process. The CA or LTA may also be asked to participate in calls. In addition, the CA or LTA may need to obtain advice from an ITAP technical advisor concerning technical issues that are raised during the appeal process.

  3. The LTA’s office will immediately apprise the DEDCA, EDCA’s staff, or the NTA’s staff of any significant factual changes that affect a TAO during the appeal process. For example, if TAS has issued a TAO on behalf of a taxpayer who has submitted an OIC and the taxpayer is making periodic payments while the IRS is processing the OIC, the LTA’s office will immediately inform the person working the appeal if the taxpayer’s periodic payment is late because that may cause the IRS to treat the offer as withdrawn. See IRM 5.8.4.25, Periodic Payments Required with Offer in Compromise Submissions.

  4. The LTA’s office will update any information relevant to the TAO at least every 30 days during the TAO appeal process. For example, at least every 30 days, the CA and LTA will provide the person working the appeal (e.g., the DEDCA, EDCA, or NTA or their staff) with an update as to the amount of any outstanding tax debt (including a breakdown of penalty and interest), if relevant to the case. (Occasionally, in certain circumstances, it may be the DNTA working the case.) The LTA’s office will also verify whether timely monthly payments are being made and for what amount.

  5. The LTA’s office will update TAMIS with any updates provided by the NTA or their staff.

  6. If a refund is at issue, the CA and the LTA must be mindful of the statute of limitations in IRC 6514 and IRC 6532 while the TAO is pending, and take steps to protect the taxpayer (either by recommending the taxpayer file a timely refund suit or assisting the taxpayer in getting a Form 907 executed to extend the period for filing suit).

    Note:

    If you need to help the taxpayer get a Form 907 executed, do not wait until the end of the period for filing a refund suit; it may take some time to get the IRS to agree to sign Form 907, as no one in TAS has the delegated authority to sign Form 907. Form 907 must be executed by the taxpayer and the IRS before the period for filing suit has expired.

13.1.20.6.4 (06-14-2023)

Role of the DEDCA, EDCA, and the Responsible Official’s Manager(s)

  1. Generally, within five (5) workdays of receiving the TAO appeal from the LTA, the DEDCA will:

    1. Review the appeal, the sustentation memo, and the TAO case folder (or the electronic case folder) to determine if the TAO should be rescinded or modified.

    2. If the TAO is not rescinded or modified, the DEDCA will discuss the TAO with some or all of the parties such as the LTA, the OD/function responsible official, and the responsible official’s manager to try to resolve the dispute, if appropriate.

      Note:

      An LTA, DEDCA, the EDCA, the DNTA, and the NTA can issue a TAO to an IRS official at any level. However, if an SB/SE territory manager appeals a TAO to an LTA, and the TAO remains unresolved at each level, the DEDCA would elevate it to the SB/SE first-line executive, the EDCA would elevate it to the SB/SE Operating Unit Director and the NTA would elevate it to the SB/SE Commissioner.

  2. Generally, within five (5) workdays of completing the discussion described above (or, if no discussions are held, with five (5) workdays of receiving the appeal), the DEDCA will send a memo to the manager of the OD/function responsible official who appealed the TAO with a copy to the responsible official and the responsible official’s second-level manager. The DEDCA’s memo will:

    1. Discuss the responsible official’s appeal, summarize all communications (including ignored communications) with the OD/function’s management and include the reasons for the DEDCA’s determination to sustain, modify, or rescind the TAO, and

    2. Provide a response date (i.e., the date by which the responsible official’s manager must inform the DEDCA whether they will comply with or appeal the TAO) and an action date (i.e., the date by which the TAO must be implemented if it is not appealed). The response date is generally five (5) to ten (10) workdays but should be determined based on the exigency of the taxpayer’s situation and the complexity of the case.

    3. If the OD/function has not received a response from the DEDCA within the timeframe established above, the OD should contact the next level manager of the DEDCA.

    If the DEDCA Then the DEDCA
    Rescinds the TAO

    • Discusses the TAO with the EDCA, returns the case folder to the LTA along with a memo supporting the decision to rescind.

    • Notifies the responsible official who appealed the TAO that it has been rescinded.

    • Uploads a copy of the memo to TAMIS Attachments and sends a copy to “&TAS TAO” Outlook distribution list.

    • Updates TAMIS Taxpayer Screen 6 per IRM 13.1.20.5(9).
    Modifies or sustains the TAO

    • Forwards the completed Form 9102, including all attachments, and the DEDCA’s memo to the manager of the OD/function responsible official, their second-level manager, and the LTA.

    • Uploads a copy to TAMIS Attachments and sends a copy to &TAS TAO Outlook distribution list.

    • Updates TAMIS Taxpayer Screen 6 per IRM 13.1.20.5(8).

  3. The OD/function responsible official’s manager will either comply or appeal the TAO by the response date provided in the DEDCA’s memo. If appealed, the manager’s written response should provide a written explanation for why the TAO was not implemented and include legal authority and factual basis to support the OD/function’s position.

  4. If the OD/function’s responsible official’s manager does not provide a timely written appeal or otherwise contact the DEDCA, the failure to respond may be deemed an appeal of the TAO.

    Note:

    Even after the DEDCA has sustained the TAO, they may modify or rescind the TAO in response to new information at any time. They may also require the responsible official’s manager to reconsider the TAO based on new information that TAS develops during the appeal (e.g., information that is responsive to new concerns raised by the OD/function.

  5. Within five (5) workdays of receiving the OD/function’s appeal, the DEDCA’s office will send, by secure email, an electronic copy of the TAO case folder to the office of the EDCA and the “&TAS TAO” Outlook distribution list.

  6. Upon receipt of the determination by the EDCA or NTA, the DEDCA will email it to the LTA and notify TAG via the “&TAS TAO” Outlook distribution list.

  7. Upon receipt of an OD/function’s appeal from the DEDCA, the EDCA will consider the appeal using the same procedures as a DEDCA. If the TAO remains unresolved by the EDCA and the next level of management within the OD/function, the EDCA will elevate the OD/function’s appeal and forward the TAO case file to the NTA’s office (i.e., the designated attorney or technical advisor and the Supervisory Attorney Advisor), generally within five (5) workdays of receiving an appeal of their TAO determination.

13.1.20.6.5 (06-14-2023)

Role of the NTA

  1. The NTA and their staff will investigate TAO appeals and work with the OD/function heads of office or the appropriate Deputy Commissioner of Internal Revenue (DCIR), as needed, to resolve them.

13.1.20.6.5.1 (06-14-2023)
NTA Communication with Heads of Office

  1. A memo sustaining or modifying a TAO will generally provide the same information as the Form 9102, including two deadlines: a response date and an action date.

    1. The response date is the date that the head of office must respond to the NTA regarding whether the OD/function will comply with or appeal the TAO; the action date is the date by which the OD/function must take the action specified in a TAO if the TAO is not appealed.

    2. The NTA generally allows thirty (30) calendar days for a response and some additional period to implement the action. Depending on the taxpayer’s situation, the NTA may grant a reasonable extension.

  2. If the head of office agrees that the OD/function will take the action ordered by the TAO, they will notify the NTA in writing by the response date and the OD/function will take the action by the action date. If the head of office requires additional time, they will notify the NTA in writing before the action date.

  3. If the head of office appeals the NTA’s determination, they will issue a written appeal to the NTA by the response date. The appeal will include a written explanation.

  4. After receipt of an appeal from the head of office, the NTA may require the head of office to reconsider the TAO by providing a response to issues raised in the head of office’s written explanation. Such reconsideration request will be based on new facts, law, or authorities.

  5. If the NTA does not make a decision within the below timeframes, the head of office should forward the appeal directly to the DCIR for a determination.

13.1.20.6.5.2 (06-14-2023)
NTA Communication with a Deputy Commissioner

  1. IRC 7811(c) provides that a TAO issued by the NTA may be modified or rescinded “(1) only by the National Taxpayer Advocate, the Commissioner of Internal Revenue or the Deputy Commissioner of Internal Revenue, and (2) only if a written explanation of the reasons for the modification or rescission is provided to the National Taxpayer Advocate.”

  2. While IRC 7811(c)(1) specifically provides that the CIR or a DCIR is authorized to modify or rescind a TAO, the NTA will direct the appeal of a TAO from a head of office to the DCIR.

  3. Generally, within thirty (30) calendar days of receiving a TAO appeal from a head of office, the NTA will rescind, sustain, or modify the TAO by issuing a memo to the appropriate DCIR. The NTA and DCIR are encouraged to discuss open issues before the DCIR makes a final determination. The NTA may be granted a reasonable extension of time if warranted.

  4. The DCIR (and not a delegate) will issue a determination to the NTA by the response date stated in the NTA’s memo. The NTA generally allows thirty (30) calendar days for a response and some additional period to implement the action specified in the TAO. The NTA may grant a reasonable extension. If the DCIR determines that the IRS will comply with the TAO, the responsible official will take the action ordered in the TAO. If the determination by the DCIR modifies or rescinds the TAO, the DCIR’s determination will provide a written explanation of the reasons for the modification or rescission.

  5. The NTA may require the appropriate DCIR to reconsider the TAO determination in light of new facts, documentation, or authorities. If a request for reconsideration is warranted, the NTA will provide a supplemental memo to the DCIR with the new facts, documentation, or authorities within 14 calendar days of receiving the DCIR’s determination. The NTA may be granted a reasonable extension if warranted.

  6. If a request for reconsideration is not received within 14 calendar days of the DCIR’s determination (or the agreed upon extension of time), or if the DCIR modifies or rescinds the TAO after reconsidering it in light of the NTA’s supplemental memo, the IRS will proceed in the manner outlined in the DCIR’s determination.

13.1.20.7 (06-14-2023)

Release of TAOs and Written IRS Responses

  1. Upon a taxpayer's request for a copy of the TAO, TAS employees should explain that the NTA must approve the release of applicable material but that the employee will make the request for the taxpayer. The taxpayer is not required to submit a Freedom of Information Act (FOIA) request.

    Note:

    Except as required by law, TAS employees will not release final TAO determinations without the approval of the NTA. See IRM 13.1.10.13.1(5), Obtaining Records without a FOIA Request

    .

  2. Before releasing a TAO, the TAS employee who issued it will:

    1. Wait until the IRS or TAS has rendered a final decision on the issues addressed in the TAO and there is not an appeal of the TAO pending;

    2. Review the TAO to identify any information that must be redacted, such as information about another taxpayer or information that should be withheld under FOIA (see IRM 13.1.20.7(3) for guidance); and

    3. Forward the TAO with any recommended redactions up their management chain to the NTA for a final decision.

  3. For questions about whether information should be redacted, there are a variety of resources available to TAS employees. IRM 11.3.13, Freedom of Information Act, contains guidance on the types of information that is exempt from public disclosure. TAS employees may also contact the Disclosure help desk by email at *Disclosure, or by telephone at 1-866-591-0860.

  4. TAS employees who cannot release information that a taxpayer has requested should inform the taxpayer that IRS employees who are actively working a taxpayer’s case may be able to provide access to certain information. See IRM 4.26.14.4, Disclosure of Tax Information. For example, IRS employees working open cases are generally directed to give taxpayers “routine access” to their files (including copies of work papers and other records) unless doing so would impair enforcement, as described on the IRS website.

  5. If the IRS employee who is actively working the case does not release the information, or if the taxpayer would like to obtain documents that TAS cannot release, the taxpayer can make a FOIA request, as described in the IRS FOIA Guide on the IRS website.

Exhibit 13.1.20-1

Taxpayer Assistance Order Check List

LTA (Check off as action completed) Action Items
  Ensure the case meets TAS criteria.
  Ensure that an IRC 7811 significant hardship determination was made and documented.
  Ensure that the office sufficiently developed the case issue(s) and that case documentation supports significant hardship.
  Ensure the CA researched IRM, SERP, IDRS, TAMIS, ACS, ICS, IRC, etc., and included the research in the case file.
  Ensure a Counsel opinion was obtained, if needed, and include it in the case file and upload it to TAMIS Attachments.
  Ensure the CA included a detailed timeline of actions in the case file.
  Ensure an LTA fact sheet is included in the case file.
  Contact the OD/function having responsibility to take the action and establish a reasonable timeframe to complete the requested action.
  Clearly communicate the action(s) requested and the timeframe for completion to the OD/function and clearly document this on TAMIS. If making contact face to face or via the telephone, clearly document on the TAMIS History Screen the specifics of what was discussed and agreed to, as well as the timeframe for an action to be completed.
  Ensure the action has not been taken and the case has not been satisfactorily resolved even after a reasonable process of negotiation with the responsible personnel of the OD/function.
  Notify DEDCA of TAO issue and issuance of TAO.
  Add a TAO record to TAMIS Taxpayer Screen 6, per IRM 13.1.20.5(7). Upload a copy of the TAO and all attachments to TAMIS Attachments and send a copy to the &TAS TAO Outlook distribution list.
  Ensure the case file is complete in the case of an appealed TAO.
  Ensure the TAO includes any limitations period expiration date (i.e., ASED, CSED, RSED) that is imminent and relevant.
Exhibit 13.1.20-2

TAO Case Folder Assembly

A TAO case folder should be clearly labeled and assembled in the order listed below, whether it is prepared or transmitted on paper or electronically. Although this information should be uploaded to TAMIS, some TAO reviewers may not have access to TAMIS.
The outside front of the folder (or electronic folder) should be labeled with the taxpayer name and TAMIS case file number. Not all of the information listed below will be relevant to the issuance of the TAO in every case. In addition, only information relevant to the tax year(s) of the TAO should be included. Unless otherwise indicated, copies, not originals, of all information should be submitted. The tab headings (or electronic file names) are listed in bold and may not be all inclusive:

Left Side of Folder (top to bottom, if using paper files)

  • Form 9102 - Original Taxpayer Assistance Order (TAO).

  • TAO Summary Attachment(required) - CA Facts of the case, including a detailed timeline of case actions.

  • (SB/SE, W & I, LB&I, TE/GE, Appeals or Counsel) Rebuttal- Original written appeal to the Form 9102 from the OD/function.

  • Form 911 or Incoming Correspondence - Copy of the Form 911, Request for Taxpayer Advocate Service Assistance (And Application for Taxpayer Assistance Order), or written/verbal request for assistance.

  • Hardship Validation - Documentation to confirm IRC 7811 determination of significant hardship, which may include oral statements documented in TAMIS.

  • Operations Assistance Requests (OARs) - Copies of OARs that have been issued.

Right side of Folder (top to bottom, if using paper files)

  • TAMIS(required) - Form 911 prints for all cases relating to the TAO issue [See IRM 13.1.20.3].

  • IDRS(required) - All appropriate IDRS prints (ENMOD, SUMRY, TXMOD, IMFOL, BMFOL, INTST, AMDIS, etc.)

    Note:

    The starting page for each command code should also be tabbed.

  • E-trak- Copy of any E-trak control and incoming correspondence, if it exists.

  • Returns - If warranted, copies of returns (not originals), in descending order (most recent return on top).

EXAMINATION INFORMATION - Of the tab headings listed below, only include the information that is relevant to the issuance of the TAO.

  • Open Exam- Documentation taxpayer has submitted to Exam for consideration.

  • Revenue Agent Reports (RAR)/CP2000- Copies of CP2000 or Revenue Agent Reports (not originals).

  • Statutory Notices of Deficiency (SNOD) - Copies of any Statutory Notices of Deficiency.

  • Audit Reconsideration - Audit reconsideration support (Form 886-H information, substantiation of disallowed/questioned expenses, etc.).

COLLECTION INFORMATION - Of the tab headings listed below, only include the information that is relevant to the issuance of the TAO.

  • Notice of Federal Tax Liens (NFTL’s) - Copies of any Notices of Federal Tax Lien filed, released, or withdrawn.

  • Collection Information Statement (CIS) - Taxpayer financial information (Form 433-A and Form 433-B) including national asset locator research.

  • Notices of Levy - Copies of any Notice of Levy or Release of Levy.

  • Collection Appeals Process (CAP)/ Collection Due Process (CDP) - Any information relating to the Collection Appeals Process or Collection Due Process (or Equivalent Hearing), including a copy of Form 12153, Request for a Collection Due Process Hearing (Also included under this tab would be any response from Appeals regarding a CDP hearing).

  • Installment Agreements (IAs) - Copies of any Installment Agreements.

  • Offer In Compromise (OIC) Information - Form 656, rejection letter(s), taxpayer appeal of rejected OIC, etc.

  • Trust Fund Recovery Penalty (TFRP) - Trust Fund Recovery Penalty information, including the Form 4180, Report of Interview with Individual Relative to Trust Fund Recovery Penalty or Personal Liability for Excise Tax.

  • Bankruptcy - Any bankruptcy information.

APPEALS INFORMATION - Only include information that is relevant to the issuance of the TAO issue.

  • Appeals - Copies of any Appeals information (closing agreements, Form 870, letters from Appeals).

OTHER INFORMATION - Of the tab headings listed below, only include the information that is relevant to the issuance of the TAO.

  • Internal Revenue Manual (IRM) - Copies of relevant IRM Sections (TAS IRM, Function IRM’s, SERP Alerts, Operating Division Memorandums, etc.).

  • Legal Research - Copies of the IRC, regulations, and court cases in support/defense of TAO court cases.

  • Counsel Opinions - Opinions from Counsel regarding the TAO issue, LTA/DEDCA position on Counsel opinion.

  • Waivers - Form 900 (CSED) or Form 2750 (ASED).

  • Correspondence - Copies of correspondence sent between TAS and the IRS, in descending order (most recent date on top).

  • Automated Collection System (ACS) - Applicable ACS screen prints, including the history in descending order.

  • Integrated Collection System (ICS) - Applicable ICS screen prints, including the history in descending order.

  • Desktop Integration (DI) - Applicable DI screen prints.

  • Third Party Authorization - Form 2848, Power of Attorney, or Form 8821, Tax Information Authorization.

  • Other - Any misc. documents (payroll records, Form W-2 & Form W-3) and anything not included in one of the categories above.

Exhibit 13.1.20-3

Terms

Terms Definitions
Form 12412 The form used to issue an OAR.
Form 9102 The form used to issue a TAO.
action date The date by which the OD/function must take the action specified in a TAO.
direct report A person in the responsible official’s management chain who reports to the head of office for the OD/function.
e-trak The document tracking application which replaced the Executive Control Management System.
Operations Assistance Request (OAR) Conveys a recommendation or request that the IRS act to resolve when TAS lacks the statutory or delegated authority to resolve a taxpayer’s problem.
response date The date that the OD/function must respond to TAS.
responsible official A person who is directed to take the action specified in the TAO.
Taxpayer Advocate Management Information System (TAMIS) TAS uses TAMIS to record, control and process cases and to analyze the issues that bring taxpayers to TAS.
Taxpayer Assistance Order (TAO) A statutory tool used by TAS to order the IRS to take any actions permitted by law, cease certain actions or refrain from taking certain actions. See IRC 7811 and IRM 13.1.20, TAS Taxpayer Assistance Order (TAO) Process.
Exhibit 13.1.20-4

Acronyms

Acronym Definition
AM Accounts Management
AMS Accounts Management System
ASED assessment statute expiration date
BOD business operating division
CA case advocate
CAP collection appeals process
CDP collection due process
CI Criminal Investigation
CIR Commissioner of Internal Revenue
CIS collection information statement
CSED collection statute expiration date
DCIR Deputy Commissioner of Internal Revenue
DDIA direct debit installment agreement
DEDCA Deputy Executive Director Case Advocacy
DNTA Deputy National Taxpayer Advocate
EDCA Executive Director Case Advocacy
EDCA ITS Executive Director Case Advocacy Intake and Technical Support
EITC earned income tax credit
EH equivalent hearing
FAQ frequently asked questions
FOIA Freedom of Information Act
GM group manager
IA installment agreement
IRC Internal Revenue Code
IRM Internal Revenue Manual
IRS Internal Revenue Service
ITAP Internal Technical Advisor Program
LB&I Large business and international
LCA lead case advocate
LTA local taxpayer advocate
NFTL notice of federal tax lien
NTA National Taxpayer Advocate
OAR Operations Assistance Request
OD Operating Division
OE Offer Examiner
OIC offer in compromise
PCIC primary core issue code
PRO Problem Resolution Officer
PRP Problem Resolution Program
ROTA Revenue Officer Technical Advisor
ROTER Record of Tax Enforcement Result
RRA 98 Internal Revenue Service Restructuring and Reform Act of 1998
RSED refund statute expiration date
SB/SE Small Business/Self Employed
SME subject matter expert
SNOD statutory notice of deficiency
TAG Technical Analysis and Guidance
TAMIS Taxpayer Advocate Management Information System
TAO taxpayer assistance order
TAS Taxpayer Advocate Service
TBOR Taxpayer Bill of Rights
TE/GE Tax Exempt/Government Entities
TM territory manager
TFRP trust fund recovery penalty
W & I Wage and Investment
Exhibit 13.1.20-5

Form 9102, Writing Guidelines

  1. The TAO should be clear, direct, and easy to understand. Direct and easy to understand means no jargon or acronyms that are difficult for any reader to understand, especially readers who do not work with IRS programs and command codes often. The TAO should lead the reader to agree with the action(s) ordered.

  2. Whenever possible, the TAO must include references to applicable legal and procedural rules, such as the IRC, Treasury Regulations, case law, IRM, and Taxpayer Bill of Rights.

  3. Only relevant information and authorities should be included in the TAO. The TAO explains why the IRS should take the action directed by TAS. Irrelevant information or authorities will distract the OD/function from reaching the conclusion that it should comply with the TAO.

  4. The TAO is an opportunity for TAS to explain the significant hardship that the taxpayer is experiencing or will suffer if the OD/function does not comply with the TAO.

  5. Do not write emotionally.

  6. When including short quotations of three (3) lines or less, use quotation marks to set the quotation off from the text so that the reader can determine where the quotation begins and ends. For longer quotations, indent the quoted text.

    Note:

    Although small quotations can be helpful, it is not necessary to copy large blocks of text from publicly-available authorities (i.e., the IRC or IRM) into the TAO. A citation or reference is usually sufficient.

  7. When typing, used mixed case rather than ALL CAPITAL LETTERs.

  8. Write in complete sentences and be specific as to what facts and circumstances warrant the issuance of the TAO.

  9. Each point raised in the analysis section should be organized as follows:

    1. state the issue;

    2. identify the law - cite the relevant rule or authorities that are the basis for the position (e.g., the IRC, Treasury Regulations, case law, counsel opinion, IRM, etc.);

    3. provide analysis - apply relevant facts to the rule, referencing documents or other sources that form the basis of any factual conclusions; and

    4. order action(s) - state the specific action(s) or outcome(s) necessary to provide appropriate relief based upon the analysis.

    Note:

    The TAO is an order, not a request. Use language that makes this clear and direct.

Exhibit 13.1.20-6

Legislative History of TAO Authority

1) TAOs began as a delegated authority. In 1979, recognizing that normal operating procedures do not always resolve taxpayer problems, the IRS established a Taxpayer Ombudsman to administer its Problem Resolution Program (PRP). PRP was to resolve problems not remedied through normal operating procedures or administrative channels. The IRS authorized the Taxpayer Ombudsman to issue orders to affect immediate review of IRS actions. This authority was delegated to local Problem Resolution Officers (PROs), which were appointed by an IRS District Director or Regional Director of Appeals.

2) Statutory authority for TAOs was initially very limited. The Technical and Miscellaneous Revenue Act of 1988 (TBOR1), Pub. L. No. 100-647, § 6230, 102 Stat. 3342, 3733 (1988) first provided the Taxpayer Ombudsman with statutory authority to issue a TAO:

  1. If the Taxpayer Ombudsman determined that a taxpayer was suffering or about to suffer a significant hardship as a result of the manner in which the internal revenue laws were being administered, they could issue a TAO. PROs were delegated authority to issue TAOs.

  2. A TAO could require the IRS to release levied property, cease any action or refrain from taking action, but not to take other affirmative actions.

  3. A wide range of IRS employees, including a district director, service center director, compliance center director, regional director of Appeals, or a superior of any of these employees could modify or rescind a TAO.

3) In 1991 and 1995, the Oversight Initiative Reports by the Subcommittee on Oversight of the House Committee on Ways and Means recommended expanding the authority of the Taxpayer Ombudsman to issue TAOs that were needed but not then authorized. For example, to issue refunds, reissue checks sent to the wrong address, or require a review of proposed collection actions. The committee also recommended reducing the number of people who could modify or rescind a TAO. See Ways and Means Committee Print 102-28 at 2-3 (Nov. 14, 1991); Ways and Means Committee Print 104-8 at 2-4 (Sept. 14, 1995).

4) The Taxpayer Bill or Rights (TBOR 2), Pub. L. No. 104-168, 102, 110 Stat. 1456 (1996), provided that TAOs could order the IRS to affirmatively take any action permitted by law within a specified period and limited the IRS’s ability to modify or rescind them. TBOR 2 also replaced the Taxpayer Ombudsman with the Taxpayer Advocate position and implemented several of the Subcommittee’s recommendations to broaden the Taxpayer Advocate’s TAO authority. Specifically, TBOR 2:

  1. Authorized TAOs to order the IRS to “take any action as permitted by law” rather than just return levied property, cease any action, or refrain from any action.

  2. Authorized TAOs to order the IRS to take the action “within a specified period.”

  3. Limited those who could modify or rescind a TAO to include only the Taxpayer Advocate, the Commissioner of Internal Revenue, or the Deputy Commissioner of Internal Revenue.

  4. Required the Commissioner of Internal Revenue or Deputy Commissioner of Internal Revenue to provide the Taxpayer Advocate with a “written explanation” of the reasons for any modification or rescission.

5) The Internal Revenue Service Restructuring and Reform Act of 1998 (RRA 98), Pub. L. No. 105-206, § 1102, 112 Stat. 685, 703 (1998), expanded TAO authority, and required the NTA (Taxpayer Advocate was changed to National Taxpayer Advocate) to report to Congress on various items, including any TAOs that were not honored in a timely manner. See Hearing Before the Subcommittee on Oversight of the Committee on Ways and Means, Serial 105-30, 78 (July 24, 1997). For further discussion of RRA 98, see IRM 13.1.2.4.4, Significant Hardship.

6) RRA 98 clarified that the NTA would make the significant hardship determination. It also expanded the definition of significant hardship by providing four (4) non-inclusive examples of situations that would qualify. These examples are

  1. an immediate threat of adverse action;

  2. a delay of more than thirty (30) days in resolving taxpayer account problems;

  3. the incurring by the taxpayer of significant costs (including fees for professional representation) if relief is not granted; or

  4. irreparable injury to, or a long-term adverse impact on, the taxpayer if relief is not granted.

7) RRA 98 specifically authorized the Secretary to prescribe regulations. See IRC 7811(a). The conference report to RRA 98 contemplated that regulations would define additional circumstances in which a TAO could be issued “based on considerations of equity.” H.R. Conf. Rept. 105-599, at 217 (1998).

8) Treasury Regulations, finalized in 2011, explain that a significant hardship means a serious privation caused or about to be caused to the taxpayer as a result of the particular manner in which the revenue laws are being administered by the IRS. It includes situations in which a system or procedure (1) fails to operate as intended or (2) fails to resolve the taxpayer’s problem or dispute with the IRS. See Treas. Reg. 301.7811-1(a)(4)(ii).

9) RRA 98 also provided that where any IRS employee is not following administrative guidance, including the IRM, the NTA shall construe the factors taken into account in determining whether to issue a TAO in a manner most favorable to the taxpayer. See IRC 7811(a)(3).

10) IRC 7811(f) provides that a reference to "National Taxpayer Advocate" includes any designee of the NTA. Accordingly, the NTA has delegated to the LTAs the authority to issue TAOs, which is similar to the authority that had been delegated to the PROs before them. See IRM 1.2.2.13.1, Delegation Order 13-1 (Rev.1), Authority to Issue, Modify or Rescind Taxpayer Assistance Orders.

11) The American Jobs Creation Act of 2004, (Jobs Act) further expanded TAO authority. The Jobs Act provided that TAOs could be issued to private debt collectors. See Pub. L. No. 108-357, 881(c), 118 Stat. 1418, 1626-27 (2004) and IRC 7811(g).