In an effort to promote expeditious processing of a request for advice, the Associate’s office must confer with the examination or appeals office and field counsel (and in some cases the taxpayer) prior to the time a request for advice is submitted to the Associate office. Pre-submission conferences are mandatory in all cases. If a request for technical advice or technical expedited advice is submitted without holding a pre-submission conference, the request for advice will be rejected by the Associate office. Generally, if a technical expedited advice memorandum will be requested, the taxpayer must participate in the pre-submission conference. (See CCDM 33.2.2.1.2(1) for exceptions when taxpayer participation in the technical expedited advice process is not required). A request for a pre-submission conference should be made only after the examination or Appeals office determines that it likely will request advice. If the request for advice will include issues requiring the involvement of more than one Associate office, representatives from each Associate office involved must participate in the pre-submission conference.

A pre-submission conference is intended to facilitate agreement between the parties as to the appropriate scope of the request for advice, the factual information and documents to be included in the request, any collateral issues that either should or should not be included in the request, and any other substantive or procedural considerations that will allow the Associate office to provide the parties with technical advice as expeditiously as possible.

The examination or appeals office must work with field counsel to submit a written request for a pre-submission conference and identify the Associate office expected to have jurisdiction over the request. The request may be transmitted by the assigned field counsel office to the Technical Services Support Branch shared email box TSS4510 or faxed to TSS4510 at (202) 622–4817. The Associate office will confirm receipt of the fax within one working day after receipt.

Field counsel should open a TAM-P pre-submission assignment in TECHMIS as it works to develop pre-submission materials, but the request for a pre-submission conference should be submitted shortly thereafter; a TAM-P assignment will not be allowed to remain open indefinitely in TECHMIS.

The assigned Associate office attorney will contact the field to schedule the pre-submission conference as follows:

When submitting materials for the pre-submission conference:

During the pre-submission conference, the parties should determine whether the issue(s) are appropriate for a technical expedited advice memorandum rather than a technical advice memorandum. The parties should discuss the framing of the issue(s), what background information and documents are required and when the request for advice will be submitted to the Associate office. The parties should discuss whether the issue is what that can be resolved via the technical advice process or whether it is one that may encounter significant delay in resolution.

If an Appeals office submits the request for a pre-submission conference, field counsel work assignments will be subject to the ex parte rules set forth in section 1001(a)(4) of the Internal Revenue Service Restructuring and Reform Act of 1998, Pub. L. No. 105-206, and Rev. Proc. 2000-43, 2000-2 C.B. 404.

Pre-submission conferences will generally be held by telephone, unless the parties request otherwise.

The taxpayer is advised that technical advice or technical expedited advice is being requested, except in the instance in paragraph (7), below. For a request for technical expedited advice, the taxpayer must generally agree that the expedited procedures are appropriate; lack of agreement among the parties will result in the request being treated as a request for technical advice. The only two exceptions where taxpayer agreement is not required for a technical expedited advice memorandum are:

Every effort should be made to reach agreement as to the facts and the specific points at issue before submitting the request for a technical advice memorandum or a technical expedited advice memorandum to the Associate office. Note, however, that the Associate office is not bound by the precise statement of the issue as stated by the taxpayer or exam or Appeals. See also CCDM 33.2.2.4.6.1.

If agreement cannot be reached, both the statements of the taxpayer and the examination or Appeals will be forwarded to the Associate office with the request for technical advice or technical expedited advice. The taxpayer’s set of facts must include a penalties of perjury statement. When the disagreement involves material facts essential to the preliminary assessment of the case, examination or Appeals may refuse to refer a taxpayer initiated request for technical advice or technical expedited advice. Similarly, when examination or Appeals and the taxpayer cannot agree on material facts, the Associate office, at its discretion, may refuse to provide technical advice or technical expedited advice. Alternatively, if the Associate office chooses to issue technical advice or technical expedited advice and the Associate office would rule the same way on either set of facts, the technical advice or the technical expedited advice will be issued and will note the factual dispute is immaterial. If the Associate office would rule differently based on which specific set of facts is considered, the technical advice or the technical expedited advice will be issued describing the resolution based on each set of facts. If, however, the technical advice or the technical expedited advice provides alternative responses based on separate sets of facts, the field is required to process the case consistently with the legal analysis in the advice as applied to the facts as they are ultimately determined by the field office.

If the taxpayer has not already done so, the taxpayer may submit a statement explaining the taxpayer’s position on the issues and citing precedents that the taxpayer believes will bear on the case. This statement will be forwarded to the Associate office with the request for technical advice or technical expedited advice. If the taxpayer’s statement is received after the request for technical advice or technical expedited advice has been forwarded to the Associate office, it will be forwarded to the Associate office for association with the request for advice. If the taxpayer is aware of any legislation, tax treaties, regulations, revenue rulings, revenue procedures, or court decisions contrary to the taxpayer’s position, they should be commented upon.

At the time the taxpayer is informed that the matter is being referred to the Associate office, the taxpayer will also be informed of the right to a conference in the Associate office in the event an adverse decision is indicated, and will be asked to indicate whether such a conference is desired.

Form 4463, Request for Technical Advice or Technical Expedited Advice, must be used to request advice and to transmit the various statements relating thereto to the Associate office. Field counsel must submit Form 4463 (and accompanying documents if available in electronic form) for a technical advice or technical expedited request to the "TSS4510" mailbox and must use normal sensitivity. All email requests must be sent through a Field counsel office to provide firewall protection to taxpayer information. If it is not feasible to send the entire submission via email, field counsel should send the supporting documents that are not available in electronic form by fax, express mail, or private delivery service as follows:
Internal Revenue Service
CC:PA:LPD:TSS, Room 5329
1111 Constitution Avenue, N.W.
Washington, D.C. 20224

A taxpayer will not be advised when a request for technical advice or technical expedited advice is submitted to the Associate office or advised of conference rights when that information would be prejudicial to the Government’s interests (as, for example, in cases involving criminal or civil fraud investigations or jeopardy or termination assessments).

When a request for technical advice or technical expedited advice is based on the proposed revocation of an exemption ruling or determination letter, a notice of the proposed revocation will be considered notice to the taxpayer that technical advice or technical expedited advice will be requested from the Associate office.

Upon receipt in a Branch, a request for technical advice or technical expedited advice is processed and assigned as follows: within one working day after receipt in the Branch, each request for technical advice or technical expedited advice is referred to the assignment officer, i.e., the Branch Chief, Senior Technician Reviewer, or Assistant to the Branch Chief (or Assistant Branch Chief) who assigns the requests to an Associate office attorney.

The assignment officer ensures that Form M-4114 (Case History) is attached to each request and completed in accordance with the provisions of CCDM 30.9.2, Guidelines for Specific Categories of Case Files.

Within two workdays after receipt in the Branch, the request for technical advice or technical expedited advice is assigned to an Associate office attorney who analyzes the file to see that it meets all the requirements for requesting technical advice or technical expedited advice. If the request does not comply with CCDM 33.2.1.10.2, Section 6110 Procedures Applicable to Issuing Technical Advice and Technical Expedited Advice Issuance, relating to the statement of proposed deletions, the Associate office will make the deletions from the technical advice memorandum or the technical expedited advice memorandum required by IRC § 6110(c).

The principal Associate Chief Counsel attorney assigned to the technical advice will prepare a work plan that sets forth a time table explaining when and how the technical advice will be completed. In so doing, the attorney should consult with the examining agent or appeals officer who submitted the technical advice request, attorneys from other Associate Chief Counsel offices who will likely assist in drafting the technical advice, and the field counsel attorney assigned to the technical advice request. The parties should agree to the work plan within five business days after the technical advice request is submitted. Proposed departures from the time table are subject to review by the Associate Chief Counsel office’s responsible official.

Each request for technical advice or technical expedited advice is monitored closely at each level of consideration and review to avoid unnecessary delays.

For any technical advice expected to be pending over 120 days during each month, the principal Associate Chief Counsel attorney assigned to the technical advice must provide a status update by email within the first five calendar days of the month to the examining agent or appeals officer, including an explanation for any delay, the steps being taken to overcome the delay, and the estimated completion date. The email will also be sent to the field counsel attorney assigned to the technical advice request, the Associate Chief Counsel office’s responsible official, the Division Counsel Headquarters technical advice contact, and TSS4510.

Within five calendar days after the Branch office receives the request for technical advice or technical expedited advice, a representative of the Branch telephones the requesting office and field counsel to confirm the receipt of the request for advice and to discuss the procedural and substantive issues in the request that come within the Branch’s jurisdiction. The Associate office attorney gives his or her name and office telephone number for future reference and then informs the requesting office that:

The Associate office attorney should prepare a memorandum of the communication for the file showing the:

When additional information is obtained through email, copies of the email correspondence should be placed in the file.

If the case contains an original return filed by the taxpayer, the return should be examined and pertinent portions necessary to the determination should be copied and retained. The original return should be returned immediately to the requesting office and the file noted with respect to the date on which the statutory period of limitations will expire.

When the technical advice or technical expedited advice request involves matters within the jurisdiction of more than one Branch or Associate office, a representative of the Branch that received the original technical advice or technical expedited advice request will inform the requesting office at the time of the initial contact described in CCDM 33.2.2.2.2(1) that:

The assigned Associate office attorney and reviewer should evaluate the issue in a technical advice or technical expedited advice request to determine whether published guidance is appropriate. For each case, the attorney and reviewer must forward a memorandum to the Associate Chief Counsel discussing whether published guidance is appropriate on the issues in the technical advice. See CCDM 33.2.1.5, Deferral of Technical Advice Memorandum or Technical Expedited Advice Memorandum Pending Publication of a Revenue Ruling, for guidelines in determining the need for general guidance.

The Associate office attorney to whom the case is assigned analyzes the case thoroughly and performs the research necessary to reach a tentative conclusion. Research should be sufficiently thorough and extensive to assure that the holding is well-reasoned and supportable by the law, regulations, court decisions, or prior published precedents. In accordance with the Statement of Principles of Internal Revenue Tax Administration, it is the representative’s responsibility to try to find the true meaning of the statutory provision and not to reach a strained construction in the belief that he or she is protecting the revenue.

If during analysis and development of the case additional information is necessary, the Associate office attorney obtains it in the most expeditious manner from the taxpayer, or the agents or Appeals officer assigned to the case. In the interest of promptness, the telephone should be used whenever appropriate; however, when material facts are provided orally by the taxpayer, written confirmation should be requested, along with a penalty of perjury statement. A record of the substance of every telephone conversation is placed in the file.

When a taxpayer is requested to submit additional information in writing, it should be submitted to the Associate office. Also, the taxpayer must send a copy to the requesting office for prompt attention and must call the Associate office attorney or reviewer assigned to the case if there are no comments. If the requesting office has not called or furnished comments within 15 calendar days, the Associate office attorney or reviewer assigned to the case should contact them to determine the status of the comments on the additional facts and data.

If a taxpayer was not advised of a request for technical advice or technical expedited advice, as provided in CCDM 33.2.2.1.2(7), the taxpayer should not be contacted. Any additional information is obtained from the requesting office.

If contrary authority is not furnished with the request for technical advice or technical expedited advice and there is no accompanying statement that none exists, the Service in complex cases or those presenting difficult or novel issues may request submission of contrary authorities or a statement that none exist.

Once the taxpayer provides all additional information requested, the Associate office attorney informs the field or area office within 21 calendar days after receiving the information for a technical advice memorandum and within five calendar days for a technical expedited advice memorandum:

Because the Associate office attorney’s tentative conclusion may change during the preparation and levels of review of the technical advice memorandum or the technical expedited advice memorandum, it is not, under any circumstances, considered final. The requesting office may not tell the taxpayer what the tentative conclusion is.

When technical advice or technical expedited advice adverse to a taxpayer is proposed and a conference has been requested, the taxpayer will be notified, by telephone if possible, of the time and place of the conference. A taxpayer is entitled by right to only one conference in the Associate office. For situations when more than one conference may be held, see paragraph (13) following.

Technical expedited advice — Within 20 calendar days after receiving a request for advice, the Associate office attorney and reviewer will offer a taxpayer a conference, which will be held within ten calendar days of the date of the offer for the conference. A taxpayer cannot request an extension of this ten-day period.

Technical advice — The conference must be held within 21 calendar days after the Associate office attorney and reviewer notify a taxpayer that an adverse technical advice memorandum is proposed. An extension of the 21-day period will be granted only if justified in writing by the taxpayer and approved by the Associate Chief Counsel. Requests for extensions should be justified by compelling facts and circumstances. The request for extension should be submitted before the end of the 21-day period. If unusual circumstances near the end of the 21-day period make a written request impractical, the Associate office should be told orally within the 21-day period about the problem and of the forthcoming written request for extension. These written requests must be promptly submitted. The Associate Chief Counsel (or delegate) will promptly notify the taxpayer by telephone and later in writing of the approval or denial of the requested extension. There is no right to appeal the denial of an extension request. If the Associate office is not advised of problems with meeting the 21-day period, or if the request is not sent promptly after the Associate office is notified of problems with meeting the 21-day period, the Service will process the case on the assumption that no further submission will be received.

In the event of a tentatively adverse determination, the Associate office attorneys may offer a taxpayer the option of delaying the conference so that the taxpayer can prepare and submit a brief requesting relief under IRC § 7805(b). In these cases, the Service will schedule a conference on the tentatively adverse decision and the section 7805(b) relief request within ten calendar days of receiving the taxpayer’s section 7805(b) request.

If conferences are being arranged for more than one request for technical advice or technical expedited advice for the same taxpayer, the conferences will be scheduled to cause the least inconvenience to the taxpayer.

Conferences usually are held at the Branch level. They usually are attended by a person who has authority to sign the name of the Branch Chief on the transmittal memorandum. When more than one Branch has taken an adverse position on an issue within its jurisdiction, or when the position ultimately adopted by one Branch will affect another Branch’s determination, a representative from each Branch with authority to sign for the Branch Chief will attend the conference. The Associate office determines the Branch personnel who will attend the conference. That office is responsible for compliance with the Conference and Practice Requirements by taxpayers’ representatives. The Associate office will notify the Examining agent or the Appeals Officer of the scheduled conference. The Examining agent or the Appeals Officer may ask or be requested to attend the conference. The Operating Division or Appeals may designate other Service representatives to attend the conference in lieu of, or in addition to, the Examining agent or the Appeals Officer.

If more than one subject is discussed at the conference, the discussion constitutes a conference for each subject.

To have a thorough and informed discussion of the issues, the conference usually is held after the Branch has had an opportunity to study the case; however, the taxpayer may request that the conference of right be held earlier in the consideration of the case than the Service would ordinarily designate. The taxpayer has no right to appeal the action of a Branch to an Associate Chief Counsel or to any other official of the Service. But see paragraph (15) below for situations in which the Service may offer additional conferences.

Conference procedures are informal. The senior Service representative controls the form and structure of the conference. That representative sees that the taxpayer has full opportunity to present the taxpayer’s views on all of the issues in question and that the taxpayer understands, as far as possible, the nature of the Service’s tentative holding and the reasons for such holding. The requesting office should be told the tentative conclusion before the taxpayer is told. The taxpayer should be told the tentative conclusion only when scheduling the adverse conference, at the adverse conference, or in any discussion between the scheduling and commencement of the adverse conference; however, all discussions with the taxpayer should be undertaken with the understanding that if the final technical advice memorandum or technical expedited advice memorandum issued to the taxpayer is adverse, it may lead to litigation. Therefore, discussions by Service representatives should be limited to what is necessary to process the case properly and efficiently. If prospective application under IRC § 7805(b) is advanced by the taxpayer, the Service representative will discuss the tentative recommendation with respect to such relief and the reason for such tentative recommendation. In exploring the conflicting arguments, no commitment is made as to the holding that the Service finally will adopt.

It is the responsibility of the taxpayer to furnish in writing to the Associate office after the conference any additional data, lines of reasoning, precedents, etc., that the taxpayer proposed and discussed at the conference but did not previously or adequately present in writing. The senior representative from the Associate office should be certain that there is a clear understanding by the taxpayer as to the nature of any further factual material or written statements to be submitted and that they must be submitted timely, along with a penalties of perjury statement.

For a technical advice memorandum, any additional information must be submitted within 21 calendar days after the conference. An extension of the 21-day period will be granted only if justified in writing by the taxpayer and approved by the Associate Chief Counsel. Although taxpayer participation during all stages of the process is preferred, it is not required for a technical advice request. If, however, the taxpayer had not participated in the steps of the process leading up to the adverse conference, the taxpayer is not permitted to submit additional data, lines of reasoning, precedents, etc. after the conference.

For a technical expedited advice memorandum, any additional information must be submitted within 15 calendar days after the conference. No extension of the 15-day period is allowed.

Any additional material should be submitted to the Associate office for the attention of the Associate office attorney or reviewer assigned to the case. The taxpayer must also send a copy to the requesting office for comment. The requesting office must provide a copy to the field counsel involved in the case. The requesting office should give the matter prompt attention and call the Associate office attorney or reviewer assigned to the case if there are no comments. If the requesting office has not called or furnished comments within 15 calendar days, the Associate office attorney or reviewer assigned to the case should call the requesting office contact to determine the status of the comments on the additional facts and data.

Once the conference of right for a technical expedited advice memorandum is held, no additional conferences will be offered. The Service will, however, offer a taxpayer an additional conference under the following situations:

The conference of right will be held by telephone unless the taxpayer or the field requests an in-person conference. If a taxpayer or the field makes this request, the Associate office reviewer will decide if it is appropriate in the particular case to hold the conference of right in person. The taxpayer will be advised when to call the Service representatives (this is not a toll-free call). The Examining agent or the Appeals Officer, as well as field counsel, will be offered the opportunity to participate in the conference. Also, other Service representatives are allowed to participate in the conference. See CCDM 33.2.2.2.4(6).

After each conference, the Associate office attorney prepares a conference report . After approval by the case reviewer attending the conference, the original of the report is associated with the case file and copies are distributed to Service personnel who attended.

Because conference procedures are informal, no tape, stenographic, or other verbatim recording of a conference may be made by any party.

In all cases, the Associate office attorney will inform the Examining agent or the Appeals Officer of the Associate Chief Counsel’s final conclusion(s). Before the technical advice memorandum or the technical expedited advice memorandum is issued, the Examining agent or the Appeals Officer will be offered the opportunity to discuss the issue(s) and the Associate Chief Counsel’s final conclusion(s), whether by telephone or at a conference, whichever the Examining agent or the Appeals Officer prefers.

The requesting office may withdraw a request for technical advice or technical expedited advice at any time before the responding transmittal memorandum is signed. The requesting office must notify the taxpayer in writing of the intent to withdraw the request for technical advice or technical expedited advice except when:

If the taxpayer does not agree that the request for technical advice or technical expedited advice should be withdrawn, the procedures in CCDM 33.2.2.2.3 must be followed.

When a request for technical advice or technical expedited advice is withdrawn, the Associate office may send its views to the requesting office when acknowledging the withdrawal request. A memorandum to the requesting office may constitute Chief Counsel Advice that is subject to IRC § 6110. In an Appeals case, acknowledgment of the withdrawal request should be sent to the appropriate Appeals Office, through the Director, Technical Services, C:AP. In appropriate cases, the subject matter may be published as a revenue ruling or revenue procedure.

The reply to a request for technical advice or technical expedited advice is prepared in two parts:

Both memoranda are addressed to the examination office or Appeals office, as appropriate, and identify the taxpayer by name, address, identification number, and year or years involved.

The identification of the person preparing the technical advice or technical expedited advice and transmittal memoranda is deleted from copies furnished offices outside of the Associate office.

It is the general practice of the Service to furnish copies of the technical advice memorandum or the technical expedited advice memorandum to the taxpayer involved upon request, after they have been adopted by the requesting office; however, where no definitive answer is given to a specific question presented, where the factual submission is such as to indicate that an issue should be decided by the field or area office, where it would not be in the interest of a wise administration of the tax laws, or where a taxpayer was not advised of a request for technical advice or technical expedited advice, a copy of a technical advice memorandum or a technical expedited advice memorandum will not be furnished to the taxpayer. In these situations the technical advice memorandum or the technical expedited advice memorandum contains a statement indicating that a copy of the memorandum will not be made available to the taxpayer. A distribution copy of the reply to a request from the operating divisions should be mailed simultaneously to the field personnel who requested it under the signature authority of the director. Replies to requests from Appeals should be routed to the appropriate area office through the Chief Appeals. The Office of Chief Counsel will send a copy of the reply to the request for technical advice or technical expedited advice to the Division Counsel of the operating division that has jurisdiction of the taxpayer’s tax return.

The transmittal memorandum is not made available to the taxpayer or representative.

The Office of Chief Counsel will not discuss the contents of the technical advice memorandum or the technical expedited advice memorandum with the taxpayer until the taxpayer has been given a copy of the technical advice memorandum or the technical expedited advice memorandum by the field or area office.