Written determinations. "Written determination" means a ruling, determination letter, technical advice memorandum, or Chief Counsel advice. The public inspection provisions apply only if the written determination is issued. A letter ruling is issued when it is signed by the appropriate official (e.g., branch chief, senior technician reviewer) and mailed by the Disclosure Branch or picked up by the taxpayer or a representative of the taxpayer. A technical advice memorandum is issued on the date the requesting official furnishes a copy to the taxpayer. Correspondence relating to withdrawals of letter ruling requests and technical advice requests is not subject to public inspection. Also, technical advice memorandums that are being reconsidered in an Associate Office before a copy is furnished the taxpayer are not subject to public inspection. In these instances, no written determination has been issued for section 6110 purposes.

Background File Documents. "Background file document" includes the request for a written determination, any written material submitted in support of the request, and any communication — written or otherwise — between the Service and persons outside the Service in connection with the written determination received before issuance of the written determination.

Other Background Documents. Written determination files contain information other than the final determination letter and the statutorily defined "background file documents." These might include, for example, drafts of the letter or memorandum and communications within or between the Service and/or Office of Chief Counsel (other than the request). These other documents, while not subject to public disclosure under section 6110, are subject to the FOIA. See CCDM 30.11 for treatment of these documents.

Chief Counsel Advice. "Chief Counsel advice" is written advice or instruction prepared by any national office component of the Office of Chief Counsel that is issued to counsel or service field or Service campus employees which interprets or sets forth policy with respect to a revenue provision. See section 6110(i)(1). A Chief Counsel advice is issued when the drafting office date stamps the final copy and forwards it to the recipient. See CCDM 33.1.1.5.3.3 .

Other Chief Counsel Documents. Section 6110(i)(2) provides that the Secretary may, by regulation, designate any other advice prepared by the Office of Chief Counsel as Chief Counsel advice subject to section 6110 procedures. Once regulations are promulgated, these procedures will apply to such designated documents as well.

If a taxpayer conference is scheduled in accordance with established procedures, the professional employee to whom the matter is assigned (professional employee) may discuss suggested deletions if it appears that the language in question will ultimately appear in the written determination and the language is not in the Office of Chief Counsel’s view properly withheld under section 6110(c). Otherwise, suggested deletions should not be discussed with the taxpayer until the written determination is prepared, reviewed, and is ready for signature and mailing.

Taxpayers’ names, addresses, and other identifying details of the person to whom the written determination pertains and of any other person should not be used in the written determination. See CCDM 37.1.1.2.2. To facilitate the editing process and aid reader comprehension, symbols, letters of the alphabet, or other designations such as " taxpayer" , "parent" , "subsidiary" , and "authorized representative" must be used in the body of the written determination in lieu of names and numbers. A legend will be included on the first page of the written determination to identify the letters of the symbols used in the body of the letter ruling. Symbols should also be used for other identifying information (addresses, etc.).

Symbols should be used in the body of the written determination if reference to specific dates could identify the taxpayer involved in the written determination. In written determinations that deal with extensions of time, etc., general time frames, such as "within 60 days" or " 3 months," should be used instead of specific dates as use of such specific dates could identify the taxpayer.

Before written determinations are made available for public inspection, Treas. Reg. § 301.6110-3 requires the deletion of names, addresses, and identifying numbers (including telephone, license, social security, employee identification, credit card, and selective service numbers) of any person, other than the identifying details of a person who makes a third-party communication discussed in Treas. Reg. § 301.6110(4(a).

The regulations also require the deletion of any other information that would permit a person generally knowledgeable with respect to the appropriate community to identify any person in the written determination.

The appropriate community could be an industry or geographical community and will vary with the problem involved. For example, the " community" for a steel company will be all steel producers, but may also be the locale in which the main plant is to be located if the written determination deals with a land transaction. The standard is not, however, one of a person with inside knowledge of the particular taxpayer.

After the written determination is approved by the reviewer, the appropriate deletions will be made to an electronic version of the document and saved in Word format. Other deletions required include the legend, person to contact, and the contact telephone number. In the case of a technical advice memorandum, the identification of the requesting office is also redacted. A copy of the redacted version of the written determination must remain in the administrative file for eventual forwarding to the Disclosure Branch and the Docket & Records Branch.

The initiator prepares and signs the Form M-6691, Written Determination Checklist. The checklist is made part of the administrative file. The first level reviewer, after ensuring that all required actions listed on the checklist have been completed, also signs the checklist.

When the written determination is ready for signature and there is agreement between the taxpayer and the Office of Chief Counsel as to suggested deletions reflected in the written determination, it will be signed by the appropriate person. Additionally, in the case of a technical advice memorandum, if no suggested deletions are made by the taxpayer, it will be signed by the appropriate person after deletions required by section 6110 (c) have been made.

If there is a disagreement between the taxpayer and the Office of Chief Counsel as to suggested deletions reflected in the written determination, the taxpayer will be contacted by telephone by the professional employee to whom the case was assigned to resolve the disagreement. The conclusion reached in the written determination will not be discussed or alluded to in the conversation. If agreement cannot be reached during the conversation, the taxpayer will be invited to submit, within 14 calendar days of the conversation, further information, lines of reasoning, or other material in support of the view that such material be redacted. The taxpayer will be advised that if no response is received, or in the event of ultimate inability to agree, the written determination will reflect the Office of Chief Counsel’s deletions. A copy of the draft written determination will not be sent to the taxpayer for purposes of examining the Office of Chief Counsel’s suggested deletions.

If the taxpayer cannot be contacted by telephone, a short letter will be prepared. This letter will be prepared for the same signature level as the related written determination and will be signed by the person who will sign the related written determination. The letter will specify the areas of disagreement and invite a telephone or written response. The letter will inform the taxpayer that if no response is received within 14 calendar days of the date of the letter, or in the event of ultimate inability to agree, the written determination will be issued reflecting the Office of Chief Counsel’s deletions.

For all written determinations other than Chief Counsel advice, after signature and closing, but before transmittal to the Disclosure & Litigation Support Branch and Docket & Records Branch for processing, the issuing branch will make a copy of the full text unredacted version of the written determination, an electronic version, and a sufficient number of photocopies of the highest quality of the redacted version of the written determination for distribution as follows:

After completion of the action required by paragraph (1), above, the issuing branch will forward the photocopies of the redacted version and the administrative file to the Disclosure & Litigation Support Branch. The redacted electronic version will be forwarded using the eWord " submit" function within five days of completion or issuance of the written determination.

The issuing branch is responsible for annotating on the original and all copies

Before transmittal to the Disclosure & Litigation Support Branch, the determination of whether or not the case is subject to section 6110 procedures will be noted on the Branch Case Assignment Data Sheet.

The file will then be forwarded through appropriate channels to the Disclosure & Litigation Support Branch for processing. In submitting the file for processing, branch personnel will date all copies of the written determination and all of the administrative documents in the file. If the taxpayer has indicated a desire to pick up the written determination in person, see paragraph (6) below.

Neither taxpayers nor their representatives are permitted to pick up letter rulings in person. Taxpayers or their representative may request that the Service fax a copy of a letter ruling to either the taxpayer or representative provided the request is in writing and includes the recipient’s fax number. Further, a representative must be authorized to receive either the original or a copy, pursuant to either a power of attorney or a Form 8821, Tax Information Authorization. The professional employee will prepare a Form M-7372, Fax Cover Sheet, and attach it to the top of the administrative file when the file is forwarded to the Disclosure & Litigation Support Branch. Fax copies will be prepared and sent by the Disclosure & Litigation Support Branch. The professional employee should caution the taxpayer or the representative that the fax copy is not an "issued" copy since it does not contain the appropriate Notice of Intention to Disclose and, therefore, that they are not entitled to rely on it. The case file is forwarded through normal channels to the Disclosure & Litigation Support Branch, with the blue paper Form M-7372 prominently displayed. If a copy cannot be sent by fax, it will be mailed.

The Disclosure & Litigation Support Branch is responsible for mailing all letter rulings and technical advice memorandums.

In the case of letter rulings, the mailing will consist of the original of the letter ruling, an additional photocopy if requested by the taxpayer, a redacted copy of the letter ruling, and a completed copy of a Notice of Intention to Disclose (Ruling), Notice 437. The Notice 437 will be dated in accordance with a schedule maintained by the Chief, Disclosure & Litigation Support Branch.

Post-issuance contacts with letter ruling recipients regarding deletions will not be handled by employees in the Associate offices. Accordingly, any such contact should be referred to the Chief, Disclosure & Litigation Support Branch, as provided in the Notice of Intention to Disclose.

Technical advice memorandums that are subject to section 6110 will be mailed by the Disclosure & Litigation Support Branch. That mailing will contain

After receiving the technical advice memorandum, the requesting office must either request reconsideration of the technical advice memorandum or furnish a copy of it to the taxpayer.

The technical advice transmittal memorandum will not be furnished to the taxpayer and deletions to the technical advice memorandum will not be discussed with the taxpayer.

Responsibility for approving taxpayer requests for post-issuance deletions has been assigned to the Disclosure & Litigation Support Branch.

The Director of the Legal Processing Division is responsible for furnishing guidance to professional employees in the national office on any questions involving section 6110. As the "6110 coordinator" , the Director may obtain legal advice on section 6110 questions from the Assistant Chief Counsel (DPL).

The Chief, Disclosure & Litigation Support Branch is responsible for reviewing, prior to use, all pattern or standardized responses to letter ruling or technical advice requests to ensure that such responses do not contain disclosures prohibited by section 6110.

National office professional employees performing pre-issuance quality reviews of written determinations are responsible for ensuring that all section 6110 requirements are complied with before approving the release of the written determination.

Section 6110(f)(4) and Treas. Reg. § 301.6110-5(d) provide that any person may request disclosure of any material redacted from a written determination. Any requests for additional disclosure or calls concerning additional disclosure received by any of the branches should be forwarded for processing to the Chief, Disclosure & Litigation Support Branch. CCDM 37.1.1.4.

Except as discussed in paragraph (3) below, a "third-party communication" means any communication, by whatever means, concerning a pending request for a written determination that is received by any Service employee (including Chief Counsel employees) from any person outside the Service other than the person to whom the written determination pertains or the authorized representative of such person.

A revenue ruling is not a written determination within the meaning of section 6110. See CCDM 37.1.1.1.1. Therefore, third-party communications do not include those received by a Service employee concerning an issue under consideration solely in a proposed revenue ruling. When release of a letter ruling or technical advice memorandum is being held pending resolution of the issue in a proposed revenue ruling or some other document that is not a written determination (such as a proposed revenue procedure or technical study project), and a communication to a Service employee on the revenue ruling or other document pertains to the issue in the pending letter ruling or technical advice memorandum, the communication will be treated as a third-party communication concerning the request for letter ruling or technical advice memorandum if the exception in paragraph 3 below does not apply.

Pursuant to Treas. Reg. § 301.6110-4(b), third-party communications do not include communications received by the Service from employees of the Service or the Office of Chief Counsel, from the Chief of Staff of the Joint Committee on Taxation, from the Department of Justice with respect to any pending civil or criminal case or investigation, or from another Government agency (including Treasury) in response to a request made by the Service to such agency for assistance involving the expertise of such agency.

Section 6110(d) and Treas. Reg. § 301.6110-4(a) provide that a written record of all third-party communications must be made. Form M-6535, Memorandum of Third Party Contact, has been developed for this purpose. The same section of the regulations requires that a notation of such communication is to be made on the copies of the written determination open for public inspection. In the case of a third-party communication concerning a proposed revenue ruling or other document that is not a written determination, the professional employee receiving the communication will ascertain whether it meets the definition of a third-party communication as described in CCDM 37.1.1.2.9. If it does, the employee will prepare the required documentation and forward it to the affected branch so that the proper notation can be made on the copies of the written determination that will be available for public inspection.

A third-party communication received by a Service employee outside the Associate offices that pertains to a pending request for a written determination should be documented and furnished to the Chief, Disclosure & Litigation Support Branch.

All contacts that qualify as third-party communications under Treas. Reg. § 301.6110-4 must be noted on the front page of the written determination. The third party annotation should be placed in the upper left corner and shall consist of the date on which the contact was made and the category of the person making the contact, such as, "Congressional" , "Treasury" , etc. The third party contact categories are listed on Form M-6535. See Treas. Reg. § 301.6110-4.

The professional employee with primary control of the case will fax (notemail) a copy of the issued CCA on the date of issuance to the field attorney requesting comments on any proposed redactions of taxpayer identifiers or privileged information (e.g., attorney-client, attorney work product or deliberative process privilege material). The field must respond within three business days. The professional employee assigned to the case will follow up to ensure receipt of the fax. If no comments are received from the field within three business days, it is deemed that the proposed redactions are appropriate.

The professional employee then prepares the CCA as follows:

The professional employee with primary control of the case completes the checksheet reflecting:

The professional employee (or secretary)

The Disclosure & Litigation Support Branch is responsible for mailing out the black and gray and the black and white versions to the taxpayer with the Form 437A, Notice of Intention to Disclose (CCA). The Notice sets forth the dates for the various steps along the road to public inspection, including the release date.

The file is closed on CASE-MIS and returned to the Docket & Records Branch in Room 5336.

The professional employee assigned to the case faxes ( not email) a copy of the issued CCA on the date of issuance to the field attorney requesting comments on any proposed redactions of privileged information. The field must respond within three business days. The professional employee assigned to the case will follow up to ensure receipt of the fax. If no comments are received from the field within three business days, it is deemed that the proposed redactions are appropriate.

The professional employee then prepares the CCA as follows:

The professional employee with primary control of case completes the checksheet reflecting

The professional employee (or secretary):

Actions to restrain disclosure must be filed not later than 60 days after the date on a Notice of Intention to Disclose (Notice). If a petition is not filed, the Service is required by statute to make the disclosure not earlier than 75 days or later than 90 days after mailing of the Notice. Civil damages are provided by section 6110(i) if the Service fails to follow the procedures prescribed in section 6110(g). Thus, professional employees must be especially sensitive to time constraints in these actions.

Immediately upon receipt of a petition to restrain disclosure the assigned attorney must notify the Disclosure & Litigation Support Branch of the petition and ensure that disclosure of the affected documents are withheld until further notice. As soon as possible, the assigned attorney should obtain the disclosure rulings file and, if necessary, any underlying file related to the ruling. The attorney should consult his supervisor in any action brought anonymously for special instructions on maintaining the confidentiality of the action under Rules 227 and 228.

In cases in which a petition is filed by a person other than the person to whom the written determination pertains, section 6110(f)(3)(B) requires the Service to notify the person to whom it pertains by registered or certified mail within 15 days after service of the petition on the respondent to enable that person to intervene in the action. The attorney is responsible for providing the notice required by section 6110(f)(3)(B).

The attorney should immediately examine the petition and the underlying files to determine whether there are any jurisdictional or other defects that should be raised by motion after service of the petition. The answer must also be filed within 30 (not 45) days of service.

The following are some of the jurisdictional defects that should be raised by motion:

Upon exhaustion of administrative remedies (as described in CCDM 37.1.1.4 at paragraph (4) and Treas. Reg. § 301.6110-1), section 6110(f)(4) permits any person seeking to compel additional disclosure of information in a written determination or in background file documents to file either a petition with the Tax Court or a complaint in the United States District Court for the District of Columbia for an order to compel additional disclosure.

Intervention. Within 15 days of the Office of Chief Counsel’s receipt of the notice of petition in Tax Court or complaint in district court, the attorney assigned to the case will send a notice to each person identified by name and address in the written determination or background file documents, by registered or certified mail, to the last known address of each person. Any person to whom the written determination or background file documents pertains may intervene in the proceeding.

Once notice is sent to the person to whom the written determination or background file documents pertains, the Office of Chief Counsel is no longer responsible for defending the action.

If notice is not sent as required by section 6110(f)(4)(B), the Office of Chief Counsel is responsible for defending each item of information from disclosure to the public.

Cross-reference. For treatment of petitions to compel disclosure in Tax Court, see CCDM 35.4.6. For complaints filed in district court, see CCDM 34.1 and CCDM 34.9.

Incoming ruling requests are screened by the Docket, Records & User Fees Branch.

The reviewer who has prime jurisdiction for the ruling request is responsible for ultimately determining that the correct fee is charged for the request, such as where a request involves several transactions, determining whether the transactions are unrelated (and, if so, coordinating with another branch to determine the additional fee).

The Chief, Docket & Records Branch may be able to provide the reviewer with information that helps in determining the correct fee. The rules for determining the correct fee to be paid by the taxpayer are in the revenue procedures concerning these submissions published in the first Internal Revenue Bulletin of the year.

The amount of the user fee submitted with the ruling request and the user fee code will be entered on a coding sheet by the Docket & Records Branch. See Exhibit 37.1.1-1.

The reviewer is responsible for checking the coding sheet prepared by the Docket & Records Branch to confirm that the correct fee has been charged.

The amount of the user fee is payable in advance and is refundable only if the Service refuses to respond to the request. The fee is not refundable if the person making the request withdraws the request prior to the issuance of the ruling or determination. H.R. Rept. 100-391, 100th Cong., 1st Sess. (pt. 3) (1987); S. Prt. 100-63, 100th Cong., 1st Sess. (pt. 27) (1987).

The Docket, Records & User Fees Branch will include a User Fee Refund Request form in all case files. See Exhibit 37.1.1-2. The Docket & Records Branch completes Part I of the form with information from the user fee data base.

The reviewer is responsible for submitting a User Fee Refund Request form to the Docket, Records & User Fees Branch in Room 5334 for all requests for refunds. The refund codes for the form are listed in Exhibit 37.1.1-3.

When the Docket, Records & User Fees Branch is able to determine that a ruling request contains more than the correct fee, the Docket, Records & User Fees Branch still deposits the check; but, it also marks a box on the coding sheet and forwards the case to the rulings branch recommending that a refund be authorized. If the branch chief or person assigned to review the case agrees, the branch completes Part II of the User Fee Refund Request form and sends it to the Docket, Records & User Fees Branch.

Grounds for making a refund are addressed in examples in the revenue procedure addressing rulings, opinion letters, determination letters, and similar requests that is published in the first Internal Revenue Bulletin of the year.

If the User Fee Refund Request form is not in the file, in general, the branch must contact the Docket, Records & User Fees Branch who will complete Part 1 of the form. (The Docket, Records & User Fees Branch will use information from the front of the check to complete Part I.) If the taxpayer placed a copy of the front of the check in the request for the ruling, the branch will be able to use that information to complete the form that is available as an Office of Chief Counsel macro and forward it to the Docket, Records & User Fees Branch.

The reviewer who has primary jurisdiction over the request is ultimately responsible for determining whether an additional fee is required. See CCDM 37.1.1.8.1.

An additional fee case includes a case for which no fee had been submitted with the initial ruling request.

When the Docket, Records & User Fees Branch is able to determine that an additional fee is required, the request will be held and not processed until the correct fee is received. The Docket, Records & User Fees Branch will request the correct fee by letter. The taxpayer has 30 days from the date of the request to mail the correct fee. If the fee is not submitted timely, the ruling request will be returned to the taxpayer. There may be a cycle of as many as 30 days from the response due date until the time the request is actually mailed back to the taxpayer. It may be possible to immediately reopen the case if the additional fee is received during this cycle. If an issuing branch determines that an additional fee is required, the branch has several alternatives.

The branch may return the request to the taxpayer. The return of a request to the taxpayer may adversely affect substantive rights if the request is not perfected and resubmitted to the Service within 30 days of the date of the cover letter from the branch returning the request.

The reviewer may send a Request for Additional Fee form to the Chief, Docket, Records & User Fees Branch, who will follow the procedures in paragraph (3). Substantive consideration of the request will usually be deferred.

When an expedited procedure is necessary, the branch may contact the taxpayer or taxpayer’s representative and request immediate submission of the fee and advise the taxpayer that the request will be returned if the fee is not received within a time period that the branch determines is appropriate. Substantive consideration of the request will usually be deferred. The check must be sent to the Docket, Records & User Fees Branch. After requesting the fee by telephone, the branch must send the form titled Information Sent to IR 5334 after Requesting an Additional Fee, Exhibit 37.1.1-4, to the Docket, Records & User Fees Branch to enable it to associate the check with the ruling request when it arrives. The Docket, Records & User Fees Branch will inform the branch when the fee arrives. If a fee is not received within the time period set by the branch, the branch will return the request to the taxpayer. The return of a request to the taxpayer may adversely affect substantive rights if the request is not perfected and resubmitted to the Service within 30 days of the date of the cover letter from the branch returning the request.

The Docket, Records & User Fees Branch will advise the reviewer in the issuing branch that the check has been returned for insufficient funds and will contact the taxpayer or the taxpayer’s representative and request a new check for the user fee.

The reviewer should suspend action on the case until notified that the fee has been received. If the Docket, Records & User Fees Branch does not receive the fee within the allotted time period, the Docket, Records & User Fees Branch will notify the reviewer who may close the case without further action.

A taxpayer or a taxpayer’s representative may request reconsideration and, if desired, the opportunity for an oral discussion if the taxpayer or taxpayer’s representative believes the user fee charged is either not applicable or incorrect. The taxpayer or the representative makes the request by sending a letter to the office of the appropriate Associate Chief Counsel. Additional information about this procedure can be found in the revenue procedure addressing rulings, opinion letters, determination letters, and similar requests that is published in the first Internal Revenue Bulletin of the year.

The person to whom a written determination pertains, or his authorized representative, may make a written request to postpone the date of disclosure of a written determination if the transaction to which it pertains has not been completed. The written request for delay shall set forth the date on which the transaction is expected to be completed.

The release date of the written determination will be postponed until 15 days after the Commissioner has determined that the transaction set forth has occurred, but not to exceed 90 days. See section 6110(g)(3).

The period of extension for 90 days, if applicable, is calculated from the date the written determination is scheduled to be released, as designated on the Notice of Intention to Disclose.

If the transaction is not completed within the initial 90 day delay period, the person to whom a written determination pertains, or his authorized representative, may request an additional delay of up to 180 days. The additional period of postponement will be granted only if good cause is shown to justify the additional delay. See section 6110(g)(4).

Good cause is shown if the person requesting the delay of disclosure demonstrates to the satisfaction of the Commissioner that it is likely that the lack of such extension will cause interference with consummation of the pending transaction.

Good cause is not shown if the person to whom the written determination pertains

If the only basis upon which an additional delay is sought is that the transaction is not yet completed, the Disclosure & Litigation Support Branch should contact the person seeking the additional delay to ask for any additional information substantiating whether disclosure would interfere with the pending transaction before making a final determination on the request for additional delay.

Requests for delay should be addressed to:

If necessary, the request for delay may be faxed in addition to, but not instead of, being mailed or hand carried to the Disclosure & Litigation Support Branch.

If a request for initial or additional delay is received by the issuing branch, that office is responsible for forwarding the request for delay to the Chief, Disclosure & Litigation Support Branch, within two business days.

The initial request for delay must be received by the Commissioner within 60 days after the Notice of Intention to Disclose was mailed. Upon receipt of an initial request for delay, the Disclosure & Litigation Support Branch will arrange for the document to be withdrawn from the original proposed release date and reassigned to a date 15 days after the transaction is to be completed, or 90 days from the initial proposed release date, whichever is earlier.

The request for an additional delay in disclosure must be received 30 days before the new proposed disclosure date following the initial 90 day postponement. Upon receipt of the request for additional delay, the Disclosure & Litigation Support Branch will determine, based on the information set forth in the request for additional delay, whether the requester has demonstrated that a good cause for an additional postponement exists.

In making this determination, the Disclosure & Litigation Support Branch may, as appropriate, coordinate with the issuing branch and the office of the Assistant Chief Counsel (DPL) to determine whether the information in the request for delay is adequate to demonstrate good cause for an additional delay of disclosure.

If the transaction for which a postponement has been granted is complete prior to the expected date, the person requesting a delay shall notify the Chief, Disclosure & Litigation Support Branch that the transaction is complete. The written determination will then be made available for public inspection on the earlier of (a) 30 days after the Disclosure & Litigation Support Branch is notified of the completion of the transaction or (b) the date on which the written determination was scheduled to be made available for public inspection.

If the transaction is not completed after the additional period of postponement, the written determination shall be available for public inspection no later than 360 days after the Notice of Intention to Disclose is mailed.