part7-4

7.1.5 
Employee Plans Technical Advice Procedures

7.1.5.1 
(06-01-2007)
Overview

  1. This IRM Section sets forth the applicable procedures for requesting
    technical advice and for submissions before January 2, 2007, technical expedited
    advice. Technical advice and for submissions before January 2, 2007, technical
    expedited advice may be requested on an issue in controversy. A case involving
    an unagreed issue may be submitted for technical advice and for submissions
    before January 2, 2007, or technical expedited advice by —

    • EP Determinations

    • EP Examinations

    • Appeals

    • Another operating division that has audit jurisdiction where EP Technical
      has interpretive jurisdiction

  2. This IRM Section does not include instructions on processing unagreed
    cases to Appeals, but covers only those cases which may be forwarded for technical
    advice. For additional information on Appeals procedures, see IRM 8.14.1,
    Appeals Rulings, Technical Advice, Technical Information and Other Assistance.

  3. Administrative procedures for requesting technical advice on matters
    under the jurisdiction of the Director, Employee Plans and the Director, Exempt
    Organizations of the Office of the Commissioner, Tax Exempt and Government
    Entities Division (TE/GE) are found in Rev. Proc. 2007–5, 2007–1
    I.R.B. 161, (revised annually). Section 2 of the revenue procedure specifies
    the significant changes made to the prior year’s revenue procedure.

7.1.5.1.1 
(06-01-2007)
Technical Advice

  1. Technical advice is written guidance in the form of a memorandum furnished
    by the office of the manager, EP Technical in the Office of the Commissioner,
    Tax Exempt and Government Entities Division (EP Technical) upon the request
    of the Manager, EP Determinations Quality Assurance Staff, an EP Examinations
    Area Manager, an Appeals Area Director or another operating division that
    has audit jurisdiction where EP Technical has interpretive jurisdiction. “Technical expedited advice”
    means technical advice issued in
    an expedited manner for certain submissions before January 2, 2007.

  2. Technical advice is issued in response to any technical or procedural
    question that develops during any proceeding on the interpretation and proper
    application of the tax laws to a specific set of facts, involving —

    1. the examination of a taxpayer’s return,

    2. consideration of taxpayer’s claim for refund or credit,

    3. a request for a determination letter,

    4. any other matter involving a specific taxpayer under the jurisdiction
      of EP Determinations or EP Examinations or an Appeals Area Director or another
      operating division that has audit jurisdiction where EP Technical has interpretive
      jurisdiction,

    5. processing and considering nondocketed cases in an appeals office.

  3. Where technical advice is adverse to the applicant, no further appeal
    is allowed within IRS on those issues.

  4. Separate business units, e.g., EP Determinations or EP Examinations,
    may issue specific procedures for requesting technical advice and for submissions
    before January 2, 2007, technical expedited advice within that office. Generally,
    these procedures will not conflict with a published revenue procedure or,
    where appropriate, e.g., where an office revises its internal procedures after
    the publication of a revenue procedure, will be incorporated into a subsequent
    published procedure.

    • EP Determinations procedures may be found at

      http://tege.web.irs.gov/templates/EmpPlansHome.asp?MWContent=../content/EmpPlansMainWindow/linkedHtmlDocuments/guidance.htm

    • EP Examinations procedures may be found at

      http://tege.web.irs.gov/templates/EmpPlansHome.asp?MWContent=../content/EmpPlansMainWindow/linkedHtmlDocuments/guidance.htm

7.1.5.2 
(06-01-2007)
Annual Revenue Procedure for Requesting Technical Advice

  1. Rev. Proc. 2007-5 provides the administrative procedures for submitting
    requests for technical advice and technical expedited advice to EP Technical.
    An EO matter may also be under Rev. Proc. 2007-5. See section 4.02 of Rev.
    Proc. 2007-5 with respect to IRC 521.

7.1.5.2.1 
(06-01-2007)
Issues Covered by Other Revenue Procedures

  1. The following issues are covered by revenue procedures other than Rev.
    Proc. 2007–5:

    1. Any matter pertaining to either tax-exempt bonds or mortgage credit certificates.
      See Rev. Proc. 2007-2, 2007-1 I.R.B. 88 (revised annually) and section 5 Rev.
      Proc. 2007-5.

    2. Application cases specifically reserved for handling as a ruling letter
      in EP Technical. See Rev. Proc. 2007–4, 2007-1 I.R.B. 118. This includes
      requests for relief under the Procedural and Administrative Reg. 301.9100–1.
      See section 6 Rev. Proc. 2007-5.

7.1.5.2.2 
(06-01-2007)
Mandatory Issues

  1. Technical advice is encouraged on any technical or procedural question
    that can not be resolved on the basis of law, regulations, or a clearly applicable
    revenue ruling or other published precedent. However, technical advice must
    be requested on the following matters:

    1. Any request for relief under IRC 7805(b) of a ruling letter or technical
      advice previously issued to a taxpayer.

    2. Certain exclusive benefit violations under IRC 401(a).

  2. The above list is not all inclusive. Section 4.04 of Rev. Proc. 2007–5
    sets forth a list of mandatory technical advice issues. The current version
    of the revenue procedure should be reviewed for any revisions.

  3. Technical advice and for submissions before January 2, 2007, technical
    expedited advice cases may be referred to Chief Counsel for legal advice on
    issues within its jurisdiction. See Rev. Proc. 2007–1, 2007–1
    I.R.B. 1.

7.1.5.2.3 
(06-01-2007)
Procedural Matters

  1. ) Instructions are provided for preparing a request for technical advice
    and for submissions before January 2, 2007, technical expedited advice. See
    section 10 of Rev. Proc. 2007–5. This includes:

    1. Transmittal Form 5565, Request for Technical Advice—EP/EO

    2. Disclosure provisions under IRC 6104 and 6110 (see also IRM 11.3.10, Disclosure
      of Official Information, Employee Plans Information)

    3. Submitting case files

    4. Statement of the taxpayer’s position

  2. Procedures involving operating divisions outside of EP, but involving
    an EP matter, are found in that organizations provisions of the IRM. Also,
    see Rev. Proc. 2007-2, 2007-1, I.R.B. 88. If another function requests technical
    advice on certain EP issues, Form 5565 is also used.

    Example:

    Deductibility of contributions to or taxability of distributions from simplified
    employee plans (SEPs) , individual retirement arrangements (IRAs), corporate
    or other types of qualified retirement plans

  3. The Appeals function may also request technical advice on EP matters.
    Form 5565 is also used in those instances. Currently, all EP cases will be
    routed through the Appeals Area Director, Area 4 with a copy to the Appeals
    Director, Technical Services. (Revisions to Appeals current procedures may
    alter the routing.

  4. Procedures for requesting Technical Advice for Employee Plans determination
    cases are found at IRM 7.11.1.16. Procedures for requesting Technical Advice
    for Employee Plans examination cases are found at IRM 4.71.13.

  5. Cases with less than 181 days remaining on the statute will require
    expedited handling and/or may require a statute extension). Form 3198 must
    indicate that special handling is required due to a short statute. See IRM
    25.6, Statute of Limitations, and IRM 4.71.9, Employee Plans Examination of
    Returns, Statute Control Procedures for Employee Plans Agents.

7.1.5.2.4 
(06-01-2007)
Additional Procedures

  1. Section 7 of Rev. Proc. 2007–5, provides instructions for the
    officials responsible for requesting technical advice and for submissions
    before January 2, 2007, technical expedited advice. It also indicates that
    the taxpayer may initiate a request for technical advice or for submissions
    before January 2, 2007, technical expedited advice.

  2. Section 8 provides guidance on when technical advice and for submissions
    before January 2, 2007, technical expedited advice should be requested.

  3. Section 9 specifies how pre-submission conferences are scheduled.

  4. Sections 9.07 and 10.05 contain instructions related to both the required
    and optional use of electronic transmission of material related to technical
    advice and technical expedited advice memoranda.

  5. Section 11 instructs a taxpayer on the procedures for handling technical
    advice and for submissions before January 2, 2007, technical expedited advice.

  6. Section 12 indicates how a taxpayer can appeal a decision by the Service
    not to seek technical advice and for submissions before January 2, 2007, technical
    expedited advice.

  7. Section 13 discusses how to withdraw a request for technical advice
    and for submissions before January 2, 2007, technical expedited advice.

  8. Section 14 discusses the procedure for scheduling a conference in the
    event of a proposed adverse.

  9. Section 15 covers questions concerning the status of the technical advice
    and for submissions before January 2, 2007, technical expedited advice request.

  10. Section 16 provides instructions to EP Technical personnel on preparing
    the technical advice and for submissions before January 2, 2007, technical
    expedited advice memorandum. See Exhibit 7.1.5-1. Exhibit 7.1.5-2 is an example
    of the transmittal memorandum, which is a cover sheet for the technical advice
    or for submissions before January 2, 2007, technical expedited advice memorandum
    from the tax law specialist or actuary in EP Technical.

  11. Section 17 explains how the requesting office uses the technical advice
    and for submissions before January 2, 2007, technical expedited advice.

  12. Section 18 describes the reliance a taxpayer has on the technical advice
    or technical expedited advice as well as the retroactive effect of such technical
    advice and for submissions before January 2, 2007, technical expedited advice.

  13. Section 19 describes IRC 7805(b), the provision which limits the retroactive
    effect of a technical advice and for submissions before January 2, 2007, technical
    expedited advice.

7.1.5.2.5 
(06-01-2007)
Settlement Authority

  1. Appeals is authorized to settle issues under existing authorities, with
    certain exceptions, applicable to technical advice.

    IF the issue involves… THEN…
    a. Tax exemption No settlement or administrative appeal
    b. Plan qualification No settlement or administrative appeal
    c. Unfavorable ruling (other than a. or b.) Settlement authority

  2. If the proposed disposition by Appeals is contrary to a previously issued
    technical advice or ruling as to plan qualification, submit the proposed disposition
    through the appropriate Appeals Area Director who will route its cases to
    the —

    1. Director, Employee Plans in the Office of the Commissioner, Tax Exempt
      and Government Entities Division, or,

    2. Associate Chief Counsel, (Passthroughs and Special Industries (P&SI)
      in IRC 521 cases with a copy of the case to the Appeals Director, Technical
      Services.

  3. If the Director, Employee Plans or the Associate Chief Counsel (P&SI)
    does not agree with the proposed disposition by Appeals, the decision of the
    Director, Employee Plans or the Associate Chief Counsel will be followed.

7.1.5.3 
(06-01-2007)
Status Reports

  1. At a minimum, EP Technical is responsible for reporting on the status
    of technical advice requests and for submissions before January 2, 2007, technical
    expedited advice requests more than 90 days old as of the end of each quarter.

    1. A separate status report is prepared for technical advice and for submissions
      before January 2, 2007, technical expedited advice cases originating in EP
      Determinations and EP Examinations.

    2. Status reports are not required for requests for technical assistance.

  2. At a minimum, the report will specify the–

    1. Name of Organization/Plan, EIN

    2. Date Received

    3. Issue Involved

    4. Estimated Completion Date

    5. Status of the case

    6. Name of the initiator and/or Group Manager assigned the case

    7. Telephone number of the person to contact

7.1.5.3.1 
(06-01-2007)
Distribution

  1. EP Technical will transmit the status reports to the appropriate office.

Exhibit 7.1.5-1 
(06-01-2007)
Technical Advice Memorandum — Sample Format

INTERNAL REVENUE SERVICE
National Office Technical Advice Memorandum
 
Taxpayers Name:
Taxpayers Address:
Taxpayers Identification no.:
Years Involved:
Date of Conference:
or (No Conference Held)

Issues
State the issues as presented by the applicable office. Also,
whenever appropriate, state in clear, precise language any additional issues
that have been identified that were not specifically raised by the incoming
correspondence, or restate the issue presented by the applicable office to
pinpoint the question at issue or to reframe the issue. (To the extent necessary,
EP Technical may reframe the issue.)

Facts
The statement of facts
incorporated in the technical advice memorandum should be set out concisely
but without any sacrifice of clarity. The essential facts should be fully
represented. Short quotations from the incoming statement may be used as an
aid in definitely pinning down particular areas when the conclusion depends
on the interpretation of such language. However, lengthy quotations from documents
contained in the file are to be avoided whenever practicable.

Law
This
part of the document should set forth clearly and concisely the pertinent
law, regulations, published rulings of the Service, and case law or other
precedent. Care should be taken that all citations are directly on point.
Quotations which are helpful may be used judiciously, but as with the facts,
lengthy quotations are to be avoided whenever practicable.

Rationale
Sufficient
rationale must be provided to bridge any gaps between the issue, law, and
conclusion reached. (The law and rationale sections may be combined.)

Conclusion
A
specific statement as to the conclusion reached with respect to each issue
is the final important step. These conclusions must be written to leave no
doubt as to their meaning and to make it clear they are based solely on the
facts presented.

(If a copy of the technical advice memorandum is not
to be given to the taxpayer, that fact should be noted here.)

In summary,
it is the Service’s function to promote uniformity, clarity, and responsiveness
and, to the extent practicable, to insure an orderly method of approaching
a technical advice problem. This requirement is not intended in any way to
restrict originality or ingenuity on the part of the writer, nor is it intended
to prevent necessary or desirable deviation from the pattern where proper.

Exhibit 7.1.5-2 
(06-01-2007)
Transmittal Memorandum — Sample Format on TE/GE Letterhead

MEMORANDUM FOR MANAGER, EP EXAMINATIONS
SPECIAL REVIEW, MANAGER EP DETERMINATIONS, QUALITY ASSURANCE OR APPEALS AREA
DIRECTOR, AREA 4
     
FROM: Manager,    
     
SUBJECT:    
     
Year(s) or Period(s) Involved:    
     
□ Attached is our memorandum in
response to your request for technical advice in the case name above.
     
□ Case returned for further development.
State reasons below or continue on a separate sheet, if necessary.
     
Do notfurnish
any page of this transmittal memorandum to the taxpayer.
     
Attachments: Distribution:
Copy of this memorandum
Original and two copies of Technical Advice
Memorandum 		Check appropriate blocks.
Copies of
this memorandum and Technical Advice Memorandum to:
   
  Operating Division
  □ SBSE
□ TEGE 		□ LMSB
□ W&I
  Appeals
Headquarters
and Area Office
  □ SBSE
□ W&I 		□ LMSB
□TEGE
  Division Counsell
  □ SB/SE
□ W&I 		□ LMSB
□ TEGE

Caution:

This form is
not
 to be used to transmit Technical
Advice Memorandums Involving civil fraud investigations, criminal investigations,
or jeopardy or termination assessments. See CCDM 33.2.2, Requests for Technical
Advice and Technical Expedited Advice.

Law Offices of Darrin T. Mish, PA

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