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4.2.3.4
(10-01-2003)
Technical Advice Memorandum
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A Technical Advice Memorandum (TAM) is requested according to formal
procedures contained in the second revenue procedure (i.e., Rev. Proc. 2003-2)
issued each year. This revenue procedure is updated annually, but may be modified
or amplified during the year.
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A Technical Advice Memorandum is intended to establish the proper interpretation
and application of the Internal Revenue laws to the facts of a specific case.
A Technical Advice Memorandum is a final determination of the Service's position
for a specific case. The examiner must follow the Technical Advice Memorandum
in preparing the report and closing the case.
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The Director determines whether to request technical advice on any issue
being considered. Once an issue is identified, all requests for technical
advice should be made as early as possible. The Director's decision to request
technical advice should not be affected when the issue is raised late. Responses
to technical advice frequently result in publication of revenue rulings and
revenue procedures which promote uniformity in the treatment of tax issues.
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The taxpayer may request technical advice on the grounds that a lack
of uniformity exists regarding an issue, or that the issue is so unusual or
complex that is warrants consideration by Headquarters. (See Policy Statement
P-4-82 in IRM 1.2.1.4.23)
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Each request for a Technical Advice Memorandum is forwarded through
the Area Technical Coordinator in Technical Services (Exam). The Technical
Coordinator reviews and processes the requests for technical advice. (See
IRM 4.8.8.14)
4.2.3.4.1
(10-01-2003)
Definition of Technical Advice
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Technical advice means advice or guidance in the form of a memorandum
furnished by Headquarters in response to any technical or procedural question
that develops during any proceeding on the interpretation and proper application
of tax law, tax treaties, regulations, revenue ruling, notices, or other precedents
published by the national office to a specific set of facts. Such proceedings
include:
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The examination of a taxpayer's return;
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The consideration of a taxpayer's claim for refund or credit;
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Any matter under examination pertaining to tax-exempt bonds or mortgage
credit certificates; and
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Any other matter involving a specific taxpayer under the jurisdiction
of the territory manager.
4.2.3.4.2
(10-01-2003)
When to Request a Technical Advice Memorandum
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The examiner needs to consider whether the circumstances warrant a request
for technical advice or do not warrant a request.
4.2.3.4.2.1
(10-01-2003)
Circumstances That Warrant a Technical Advice Memorandum
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Given a specific set of facts, technical advice should be requested
when:
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The law and regulations are not clear on the issue under consideration,
and there is no published precedent for determining the proper treatment of
the issue;
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There is a lack of uniformity regarding the disposition of an issue;
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A doubtful or contentious issue is involved in a number of cases;
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The issue is unusual or complex enough to warrant consideration by Headquarters;
or
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The director believes that securing technical advice from national office
would be in the best interest of the Service.
4.2.3.4.2.2
(10-01-2003)
Circumstances That Do Not Warrant a Technical Advice Memorandum
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The following are instances when a technical advice memorandum should
not be requested:
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Frivolous issues should not be forwarded to Headquarters. A
"
frivolous issue"
is one without basis in fact or law, or that espouses
a position which has been held by the courts to be frivolous or groundless.
See IRM 4.19.1.6, Frivolous Filers, or its successor.
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An identical issue of the same taxpayer that an area office is currently
considering. A director also may not request technical advice on an issue
if the same issue of the same taxpayer is in a docketed case for any taxable
year.
4.2.3.4.3
(10-01-2003)
Guidelines to Request a Technical Advice Memorandum
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The second revenue procedure issued each year contains specific information
on requesting a Technical Advice Memorandum. This section will provide an
overview of the information needed to request a Technical Advice Memorandum.
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Certain information is required in all requests for technical advice:
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A completed Form 4463, Request for Technical Advice, to include the signature
of the approving official.
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A clear and complete statement of the issue(s) in controversy to include
a statement of the facts.
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The Area's statement of its position about the issue(s), an analysis of
the applicable law, and the arguments in support of the position.
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If the taxpayer initiates the request for technical advice, the taxpayer
must submit a written statement that includes the facts, the issues, an explanation
of the taxpayer's position, a discussion of relevant statutory provisions
and the reasons for requesting technical advice. The taxpayer must also submit
a copy of relevant foreign laws and certified English translations of documents
in a language other than English.
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If the Service initiates the request for technical advice, the taxpayer
is notified that technical advice is being requested and is given a copy of
the arguments being made to support the position of the Service. The taxpayer
is given ten calendar days to indicate, in writing, any factual disagreement.
Every effort should be made to reach agreement on the facts and specific points
at issue. Taxpayers are encouraged to submit a written statement with an explanation
of the taxpayer's position and a discussion of the statutory provisions that
support the taxpayer's position.
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If applicable, Power of Attorney information must be included. The preferred
form is Form 2848, Power of Attorney and Declaration of Representative.
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Because the text of the Technical Advice Memorandum is open to public
inspection under IRC § 6110, the Service makes deletions from the text
before it is available for inspection. To help the Service make the deletions
required by IRC § 6110(c), the taxpayer must provide a statement indicating
the deletions desired. Whether the request for technical advice is submitted
by the director or the taxpayer, if the taxpayer does not submit the deletions
statement, the national office will make the deletions that the Commissioner
of the Internal Revenue Service determines are required by IRC § 6110(c).
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The area office must submit three copies of the request for technical
advice with two copies designated for Headquarters. The area office must send
one copy of the request for technical advice to: (1) the technical advisor
if the request involves a designated issue or industry under the Office of
Pre-Filing and Technical Guidance, LMSB; and (2) the operating division counsel
that has jurisdiction of the taxpayer's tax return.
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Requests for technical advice are mailed to the following address:
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The technical advice request package must be assembled and organized
by the examiner. If the package includes a number of attachments, the examiner
should label/index the references. An original and at least three copies of
Form 4463 with applicable attachments must be submitted to the Area Technical
Coordinator. The Technical Coordinator will forward the appropriate copies
to national office.
4.2.3.4.4
(10-01-2003)
Conferences
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Two types of conferences may be held with the taxpayer.
4.2.3.4.4.1
(10-01-2003)
Pre-Submission Conferences
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In an effort to promote expeditious processing of requests for technical
advice, Headquarters will generally meet with the area office representative
and the taxpayer prior to the time when the request for technical advice is
submitted to Headquarters.
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In cases involving very complex issues, the area is encouraged to request
pre-submission conferences. A request for pre-submission conferences should
be made only after the area determines that it likely will request technical
advice and the parties agree that a pre-submission conference should be requested.
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The purpose of the pre-submission conference is to facilitate agreement
between the area office and the taxpayer as to the scope of the request for
technical advice, the factual information to be included, any collateral issues
that should or should not be considered and any other information that should
be considered.
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Requests for pre-submission conferences must be submitted in writing
by the area office. The conferences generally are held in person in Headquarters.
The conference may be held via telephone if one or more of the parties are
unable to travel.
4.2.3.4.4.2
(10-01-2003)
Conferences for Taxpayer Adverse Decisions
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When the examiner notifies the taxpayer that technical advice is being
requested, the taxpayer will also be told about the right to a conference
in Headquarters if an adverse decision is indicated. The taxpayer will be
asked if a conference is desired.
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If it appears the technical advice adverse to the taxpayer will be given
and a conference has been requested, the taxpayer will be notified of the
time and place of the conference. The notification of the taxpayer is by telephone,
if possible.
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The conference is held within 21 calendar days after the taxpayer is
contacted. An extension of the 21 days is granted only if the taxpayer justifies
it in writing and the associate or assistant chief counsel of the office assigned
to the case approves the extension request. There is no right to appeal the
denial of an extension request.
4.2.3.4.5
(10-01-2003)
Replies to Requests for Technical Advice
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Replies to requests for technical advice are addressed to the director
and are drafted in two parts. Each part identifies the taxpayer by name, address,
identification number, and year or years involved.
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The first part of the reply is a transmittal memorandum (Form M-6000).
In unusual cases, it serves as the means to give the area office advice that
need not be discussed with the taxpayer.
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The second part of the reply is the technical advice memorandum, which
contains the following:
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A statement of issues;
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The conclusions of Headquarters;
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A statement of the facts that pertain to the issues;
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A statement of pertinent law, tax treaties, regulations, revenue rulings,
and other precedents published in the Internal Revenue Bulletin, and court
decisions; and
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A discussion of the rationale supporting the conclusions reached by Headquarters.
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The conclusions give direct answers, when possible, to the specific
issues raised by the field office. Headquarters may reframe the issues to
be answered in the technical advice. The discussion of the issues will be
in enough detail so the field will understand the reasoning underlying the
conclusion reached.
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