Revenue Procedure 2011-5 (Technical Advice)

26 CFR 601.201: Rulings and determination letters.

Rev. Proc. 2011–5
TABLE OF CONTENTS
SECTION 1. WHAT IS THE PURPOSE OF THIS REVENUE PROCEDURE? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169
SECTION 2. WHAT SIGNIFICANT CHANGES HAVE BEEN MADE TO REV. PROC. 2010–5?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170
SECTION 3. WHAT IS A TECHNICAL ADVICE MEMORANDUM? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170
SECTION 4. ON WHAT ISSUES MAY OR MUST TAMs BE REQUESTED UNDER THIS PROCEDURE? . . . . . . . . . . . . . . . . . . . . . 171

.01 Issues under the jurisdiction of the Commissioner, Tax Exempt and Government Entities Division. . . . . . . . . . . . . . . . . . . . .
.02 Farmers’ cooperatives. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.03 Basis for requesting technical advice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.04 Areas of mandatory technical advice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.05 Basis for requests by EO Determinations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

171
171
171
171
171

SECTION 5. ON WHAT ISSUES MUST TAMs BE REQUESTED UNDER DIFFERENT PROCEDURES? . . . . . . . . . . . . . . . . . . . . . . 172

.01 Matters (other than farmers’ cooperatives) under the jurisdiction of the Associate Chief Counsel
(Corporate), the Associate Chief Counsel (Financial Institutions & Products), the Associate Chief
Counsel (Income Tax & Accounting), the Associate Chief Counsel (International), the Associate
Chief Counsel (Passthroughs & Special Industries), the Division Counsel/Associate Chief
Counsel (Tax Exempt and Government Entities) and the Associate Chief Counsel (Procedure &
Administration) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172
.02 Alcohol, tobacco, and firearms taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172
.03 Excise taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172
SECTION 6. MAY A TAM BE REQUESTED FOR A § 301.9100–1 REQUEST DURING THE COURSE OF
AN EXAMINATION? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172

.01 A § 301.9100–1 request is a letter ruling request. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.02 Statute of limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.03 Address to send a § 301.9100–1 request . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.04 If the return is being examined or considered by an appeals office or a federal court, the taxpayer
must notify Employee Plans Technical or Exempt Organizations Technical who will notify the
Employee Plans Examinations Area manager or the Exempt Organizations Examinations Area
manager, the appeals office or government counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

172
172
173

173

SECTION 7. WHO IS RESPONSIBLE FOR REQUESTING TAMs?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173

.01 An Employee Plans Examinations Area manager, Exempt Organizations Examinations Area
manager, Employee Plans Determinations manager, Exempt Organizations Determinations manager,
or Appeals Area Director, determines whether to request a TAM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173
.02 Taxpayer may ask that issue be referred for a TAM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174
SECTION 8. WHEN SHOULD A TAM BE REQUESTED? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174

.01 Uniformity of position lacking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174
.02 When a TAM can be requested . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174
.03 At the earliest possible stage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174
SECTION 9. HOW ARE PRE-SUBMISSION CONFERENCES SCHEDULED? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174

.01 Pre-submission conference generally is permitted when a request for a TAM is likely and all parties
agree to request the conference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.02 Purpose of pre-submission conference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.03 Request for pre-submission conference must be submitted in writing by the EP or EO Examinations
or the EP or EO Determinations or the appeals office. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.04 Group will contact the EP or EO Examinations or the EP or EO Determinations or the appeals office
to arrange the pre-submission conference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.05 Pre-submission conference generally held by telephone . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2011–1 I.R.B.

167

174
174
175
175
175

January 3, 2011

.06 Certain information required to be submitted to EP or EO Technical prior to the pre-submission
conference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.07 Manner of submitting pre-submission materials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.08 Pre-submission conference may not be taped. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.09 Discussion of substantive issues is not binding on the Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

175
175
175
175

SECTION 10. WHAT MUST BE INCLUDED IN THE REQUEST FOR A TAM? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176

.01 Statement of issues, facts, law, and arguments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.02 General provisions of §§ 6104 and 6110 of the Internal Revenue Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.03 Application of § 6104 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.04 Statement identifying information to be deleted from public inspection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.05 Transmittal Form 5565, Request for Technical Advice — EP/EO. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.06 Power of attorney. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

176
176
176
176
177
178

SECTION 11. HOW ARE REQUESTS HANDLED? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178

.01 Taxpayer notified . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.02 Consider whether published guidance is appropriate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.03 Conference offered . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.04 If the taxpayer disagrees with the Service’s statement of facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.05 If the Service disagrees with the taxpayer’s statement of facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.06 If the taxpayer has not submitted the required deletions statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.07 Criminal or civil fraud cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

178
178
178
178
179
179
179

SECTION 12. HOW DOES A TAXPAYER APPEAL AN EP OR EO MANAGER’S OR AN APPEALS AREA
DIRECTOR’S DECISION NOT TO SEEK A TAM? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180

.01 Taxpayer notified of decision not to seek a TAM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.02 Taxpayer may request review of decision not to seek a TAM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.03 EP or EO Examinations Area manager or EP or EO Determinations manager or the applicable
appeals office determines whether a TAM will be sought . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.04 Manager or area director’s decision may be reviewed but not appealed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

180
180
180
180

SECTION 13. HOW ARE REQUESTS FOR TAMs WITHDRAWN? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181

.01 Taxpayer notified . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181
.02 EP or EO Technical may provide views . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181
SECTION 14. HOW ARE CONFERENCES SCHEDULED?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181

.01 If requested, offered to the taxpayer when adverse TAM proposed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.02 Timeline . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.03 21-day period may be extended if justified and approved . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.04 Denial of extension cannot be appealed. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.05 Entitled to one conference of right . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.06 Conference may not be taped . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.07 Conference may be delayed to address a request for relief under § 7805(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.08 Service makes tentative recommendations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.09 Additional conferences may be offered . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.10 Additional information submitted after the conference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.11 Normally held by telephone. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

181
181
181
182
182
182
182
182
183
183
183

SECTION 15. HOW IS STATUS OF REQUEST OBTAINED? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184

.01 Taxpayer or the taxpayer’s representative may request status from the EP or EO Examinations or the
EP or EO Determinations or the appeals office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184
.02 EP or EO Technical will give status updates to the EP or EO Examinations Area manager or the EP
or EO Determinations office or the applicable Appeals Area Director . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184
SECTION 16. HOW DOES EP OR EO TECHNICAL PREPARE THE TAM? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184

.01 Delegates authority to group managers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184
.02 Determines whether request has been properly made . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184
.03 Contacts the EP or EO Examinations or the EP or EO Determinations or the appeals office to discuss
issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184

January 3, 2011

168

2011–1 I.R.B.

.04 Informs the EP or EO Examinations or the EP or EO Determinations or the appeals office if any
matters in the request have been referred to another group or office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.05 Informs the EP or EO Examinations or the EP or EO Determinations or the appeals office if
additional information is needed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.06 Informs the EP or EO Examinations or the EP or EO Determinations or the appeals office of the
tentative conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.07 If a tentative conclusion has not been reached, gives date estimated for tentative conclusion . . . . . . . . . . . . . . . . . . . . . . . . . .
.08 Advises the EP or EO Examinations or the EP or EO Determinations or the appeals office that
tentative conclusion is not final . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.09 Advises the EP or EO Examinations or the EP or EO Determinations or the appeals office of final
conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.10 If needed, requests additional information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.11 Requests taxpayer to send additional information to EP or EO Technical and a copy to the EP or EO
Examinations or the EP or EO Determinations or the appeals office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.12 Informs the taxpayer when requested deletions will not be made. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.13 Prepares reply in two parts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.14 Routes replies to appropriate office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

184
185
185
185
185
185
185
186
186
186
187

SECTION 17. HOW DOES EP OR EO EXAMINATIONS OR EP OR EO DETERMINATIONS OR AN
APPEALS OFFICE USE THE TAM? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188

.01 Generally applies advice in processing the taxpayer’s case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.02 Reconsideration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.03 Discussion with the taxpayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.04 Gives copy to the taxpayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.05 Taxpayer may protest deletions not made . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.06 When no copy is given to the taxpayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

188
188
188
188
188
189

SECTION 18. WHAT IS THE EFFECT OF A TAM? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189

.01 Applies only to the taxpayer for whom TAM was requested. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.02 Usually applies retroactively . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.03 Generally applied retroactively to modify or revoke prior TAM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.04 Applies to continuing action or series of actions until specifically withdrawn, modified, or revoked. . . . . . . . . . . . . . . . . . . .
.05 Applies to continuing action or series of actions until material facts change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.06 Does not apply retroactively under certain conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

189
189
189
189
189
189

SECTION 19. HOW MAY RETROACTIVE EFFECT BE LIMITED? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190

.01 Commissioner has discretionary authority under § 7805(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.02 Taxpayer may request Commissioner to exercise authority. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.03 Form of request to limit retroactivity—before an examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.04 Form of request to limit retroactivity — during course of examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.05 Form of request to limit retroactivity—technical advice that does not modify or revoke prior
memorandum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.06 Taxpayer’s right to a conference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.07 Exhaustion of administrative remedies — employee plans determination letter requests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.08 Exhaustion of administrative remedies — exempt organization matters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

190
190
190
190
191
191
191
191

SECTION 20. WHAT IS THE EFFECT OF THIS REVENUE PROCEDURE ON OTHER DOCUMENTS? . . . . . . . . . . . . . . . . . . . . . . 191
SECTION 21. EFFECTIVE DATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191
SECTION 22. PAPERWORK REDUCTION ACT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191
INDEX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193

SECTION 1. WHAT IS THE
PURPOSE OF THIS REVENUE
PROCEDURE?

2011–1 I.R.B.

.01 This revenue procedure explains when and how Employee Plans Technical or Exempt
Organizations Technical issue technical advice memoranda (TAMs) to an Employee Plans (EP)
Examinations Area manager, an Exempt Organizations (EO) Examinations Area manager, an
Employee Plans (EP) Determinations manager, an Exempt Organizations (EO) Determinations
manager, or an Appeals Area Director in the employee plans areas (including actuarial matters) and exempt organizations areas. It also explains the rights a taxpayer has when an EP or

169

Sec. 1
January 3, 2011

EO Examinations Area manager, an EP or EO Determinations manager, or an Appeals Area
Director requests a TAM regarding a tax matter. Similarly, this revenue procedure may be used
by another Operating Division of the Service involved in an examination where EP Technical
does not have audit jurisdiction but has interpretive jurisdiction as enumerated in section 6.02
of Rev. Proc. 2011–4, page 123 of this Bulletin.
.02 Although taxpayer participation during all stages of the process is preferred, it is not
required in order to request technical advice.
SECTION 2. WHAT
SIGNIFICANT CHANGES
HAVE BEEN MADE TO REV.
PROC. 2010–5?

This revenue procedure is a general update of Rev. Proc. 2010–5, 2010–1 I.R.B. 165, which
contains the general procedures for technical advice requests for matters within the jurisdiction
of the Commissioner, Tax Exempt and Government Entities Division.
Section 3 is modified to provide that the term “taxpayer” includes tax exempt entities such
as governmental units which issue federally subsidized bonds such as tax exempt bonds, tax
credit bonds or build America bonds and refers to Rev. Proc. 2011–2 for TAMs involving such
matters.
Section 10.05 is revised to require the Appeals field office to send an electronic copy (no
paper copy to follow) to the TAM Coordinator in the Office of Tax Policy and Valuation.
Section 12.04 is revised to refer to the Appeals Director, TPP (Exam).
Section 16.14 is revised to provide that replies to requests for TAMs from the Appeals Area
Director are routed back to the appropriate Appeals Area Director.

SECTION 3. WHAT IS THE
DEFINITION OF TECHNICAL
ADVICE?

“Technical advice” means advice or guidance in the form of a memorandum furnished by
the Employee Plans Technical or Exempt Organizations Technical office, (hereinafter referred
to as “EP or EO Technical”), upon the request of an EP or EO Examinations Area manager, an
EP or EO Determinations manager or an Appeals Area Director submitted in accordance with
the provisions of this revenue procedure 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 rulings, notices or other precedents published by the headquarters
office to a specific set of facts. (The references in this revenue procedure to an Appeals Area
Director or an appeals office include, when appropriate, an Appeals Area Director, LMSB,
a Deputy Appeals Area Director, LMSB, a Deputy Appeals Area Director, an Appeals Team
Manager and include in employee plans matters another Operating Division of the Service
described in the last sentence of section 1.01 above.) Such proceedings include (1) the examination of a taxpayer’s return, (2) consideration of a taxpayer’s claim for refund or credit, (3) a
taxpayer’s request for a determination letter, (4) any other matter involving a specific taxpayer
under the jurisdiction of EP or EO Examinations, EP or EO Determinations, or an appeals office or (5) processing and considering nondocketed cases of a taxpayer in an appeals office.
However, they do not include cases in which the issue in the case is in a docketed case for any
year.
For purposes of TAMs, the term “taxpayer” includes all persons subject to any provision of
the Internal Revenue Code (including tax-exempt entities such as governmental units which
issue federally subsidized bonds such as tax-exempt bonds, tax credit bonds or build America bonds), and when appropriate, their representatives. However, the instructions and the
provisions of this revenue procedure do not apply to requests for TAMs involving any matter
pertaining to federally subsidized bonds such as tax-exempt bonds, tax credit bonds or build
America bonds, or to § 457 plans maintained by state or local governments or tax-exempt organizations or to mortgage credit certificates. Instead, in those instances the procedures under
Rev. Proc. 2011-2, page 90, this Bulletin must be followed.
TAMs help Service personnel resolve complex issues and help establish and maintain consistent holdings throughout the Internal Revenue Service. An EP or EO Examinations, an EP
or EO Determinations or an appeals office may raise an issue in any tax period, even though
technical advice may have been requested and furnished for the same or similar issue for another tax period.

Sec. 1
January 3, 2011

170

2011–1 I.R.B.

Technical advice does not include oral or written legal advice furnished to the EP or EO
Examinations or the EP or EO Determinations or the appeals office, other than advice furnished
pursuant to this revenue procedure. In accordance with section 12.01 of this revenue procedure,
a taxpayer’s request for referral of an issue to the headquarters office for technical advice will
not be denied merely because EP or EO Technical has already provided legal advice, other than
advice furnished pursuant to this revenue procedure, to the EP or EO Examinations or the EP
or EO Determinations or the appeals office on the matter.
Although taxpayer participation during all stages of the process is preferred, generally, it is
not required in order to request a TAM.
SECTION 4. ON WHAT ISSUES
MAY OR MUST TAMs BE
REQUESTED UNDER THIS
PROCEDURE?
Issues under the jurisdiction of
the Commissioner, Tax Exempt
and Government Entities Division

.01 Generally, the instructions of this revenue procedure apply to requests for TAMs on
any issue under the jurisdiction of the Commissioner, Tax Exempt and Government Entities
Division.

Farmers’ cooperatives

.02 If an EP or EO Examinations, an EP or EO Determinations, an appeals office or a
taxpayer requests technical advice on a determination letter under § 521 of the Code, the
procedures under this revenue procedure, Rev. Proc. 2011–9, the next Bulletin, as well as
§ 601.201(n) of the Statement of Procedural Rules (26 CFR § 601.201(n) (2007)), must be
followed.

Basis for requesting TAMs

.03 Requests for TAMs are encouraged on any technical or procedural questions arising in
connection with any case of the type described in section 3 at any stage of the proceedings in
an EP or EO Examinations, an EP or EO Determinations or an appeals office case that cannot
be resolved on the basis of law, regulations, or a clearly applicable revenue ruling or other
published precedent.

Areas of mandatory technical
advice

.04 Requests for § 7805(b) relief are mandatory TAMs with respect to all exempt organizations and employee plans matters.
Regarding exempt organizations matters, EO Examinations, EO Determinations and appeals offices are required to request a TAM on their exempt organization cases concerning
qualification for exemption or foundation status for which there is no published precedent or
for which there is reason to believe that non-uniformity exists. (Exemption application cases
handled in EO Technical in accordance with Rev. Proc. 72–5, 1972–1 C.B. 709, Rev. Proc.
80–27, 1980–1 C.B. 677, or Rev. Proc. 2011–9, are not covered by this provision.) A request
for a TAM is not required if the Director, EO Examinations proposes to revoke or modify (1)
a letter ruling found to be in error or not in accord with the current views of the Service, or (2)
a letter recognizing tax-exempt status issued by the headquarters office.
Regarding employee plans matters, a request for a TAM is required in cases concerning (1)
proposed adverse or proposed revocation letters on collectively-bargained plans, (2) plans for
which the Service is proposing to issue a revocation letter because of certain fiduciary actions
that violate the exclusive benefit rule of § 401(a) of the Code and are subject to Part 4 of Subtitle
B of Title I of the Employee Retirement Income Security Act of 1974, Pub. L. No. 93–406,
1974–3 C.B. 1, 43, or (3) amendments to defined contribution plans pursuant to Rev. Proc.
2004–15, 2004–1 C.B. 490, in connection with a waiver of the minimum funding standard
and a request for a determination letter. See section 15 of Rev. Proc. 2011–6, page 195, this
Bulletin, and section 3.04 of Rev. Proc. 2004–15, 2004–1 C.B. 490.

Basis for requests by EO
Determinations

2011–1 I.R.B.

.05 The circumstances in which EO Determinations should seek Technical Advice in the
course of processing applications for tax exemption are described in Revenue Procedure
2011–9, sections 5.03, 5.04, and 9.02. Technical Advice may also be requested by EO
Determinations in connection with requests for determination letters where no pending

171

Sec. 4.05
January 3, 2011

application for tax exemption is involved. For a listing of these determination letters, see
Revenue Procedure 2011–4, this Bulletin, section 7.04, except (1), (2), and (6).
SECTION 5. ON WHAT
ISSUES MUST TAMS
BE REQUESTED UNDER
DIFFERENT PROCEDURES?
Matters (other than farmers’
cooperatives) under the
jurisdiction of the Associate
Chief Counsel (Corporate), the
Associate Chief Counsel (Financial
Institutions & Products),
the Associate Chief Counsel
(Income Tax & Accounting),
the Associate Chief Counsel
(International) the Associate
Chief Counsel (Passthroughs &
Special Industries), the Division
Counsel/Associate Chief Counsel
(TE/GE), and the Associate
Chief Counsel (Procedure &
Administration)

.01 All procedures for obtaining TAMs on issues (other than farmers’ cooperatives) under
the interpretive jurisdiction of the Associate Chief Counsel (Corporate), the Associate Chief
Counsel (Financial Institutions & Products), the Associate Chief Counsel (Income Tax &
Accounting), the Associate Chief Counsel (International), the Associate Chief Counsel
(Passthroughs & Special Industries), or the Division Counsel/Associate Chief Counsel
(TE/GE), and on certain issues under the jurisdiction of the Associate Chief Counsel
(Procedure & Administration), including any matter pertaining to (1) tax-exempt bonds or
mortgage credit certificates, (2) deferred compensation plans under § 457, (3) § 526 of the
Code (shipowners’ protection and indemnity associations), (4) § 528 (certain homeowners’
associations), (5) Indian tribal governments, (6) federal, state or local governments, and (7)
issues involving the interpretation or application of the federal income tax laws and income
tax treaties relating to international transactions are contained in Rev. Proc. 2011–2.

Alcohol, tobacco, and firearms
taxes

.02 The procedures for obtaining a TAM specifically applicable to federal alcohol, tobacco,
and firearms taxes under subtitle E of the Code are currently under the jurisdiction of the Alcohol and Tobacco Tax and Trade Bureau within the Treasury Department.

Excise taxes

.03 A TAM regarding excise taxes (other than excise taxes imposed under Chapters 41, 42
and 43 of the Code), and employment taxes that employee plans and exempt organizations are
subject to, is set forth in Rev. Proc. 2011–2.

SECTION 6. MAY TAM UNDER
§ 301.9100–1 BE REQUESTED
DURING THE COURSE OF AN
EXAMINATION?
A § 301.9100–1 request is a letter
ruling request

.01 Except with regard to exemption application matters involving §§ 505(c) and 508, a
request for an extension of time for making an election or other application for relief under
§ 301.9100–1 of the Procedure and Administration Regulations is not a request for a TAM;
instead, the request is submitted as a letter ruling request even if the request is submitted after
the examination of the taxpayer’s return has begun or after the issues in the return are being
considered by an appeals office or a federal court. Therefore, a § 301.9100–1 request should
be submitted pursuant to Rev. Proc. 2011–4, page 123, this Bulletin (including the payment of
the applicable user fee listed in section 6 of Rev. Proc. 2011–8).

Statute of limitations

.02 The running of any applicable period of limitations is not suspended for the period during which a § 301.9100–1 request has been filed. See § 301.9100–3(d)(2). If the period of
limitations on an assessment under § 6501(a) for the taxable year in which an election should
have been made, or any taxable year that would have been affected by the election had it been
timely made, will expire before receipt of a § 301.9100–1 letter ruling, the Service ordinarily
will not issue a § 301.9100–1 ruling. See § 301.9100–3(c)(1)(ii). Therefore, the taxpayer must
secure a consent under § 6501(c)(4) to extend the period of limitations on assessment. Note
that the filing of a protective claim for refund under § 6511 does not extend the period of limitations on assessment. If § 301.9100–1 relief is granted, the Service may require the taxpayer
to consent to an extension of the period of limitations for assessment. See § 301.9100–3(d)(2).

Sec. 4.05
January 3, 2011

172

2011–1 I.R.B.

Address to send a § 301.9100–1
request

.03 Requests made under § 301.9100–1, pursuant to Rev. Proc. 2011–4, together with the
appropriate user fee, must be submitted to the Internal Revenue Service by the taxpayer and
addressed as follows:
Requests involving employee plans matters:
Internal Revenue Service
Commissioner, Tax Exempt and Government Entities
Attn: SE:T:EP:RA
P. O. Box 27063
McPherson Station
Washington, DC 20038
Requests involving exempt organization matters:
Internal Revenue Service
Commissioner, Tax Exempt and Government Entities
Attn: SE:T:EO:RA
P. O. Box 27720
McPherson Station
Washington, DC 20038
A § 301.9100–1 request may also be hand delivered between the hours of 8:30 a.m. and 4:00
p.m. where a receipt will be given at the Courier’s Desk. In each instance, the package should
be marked RULING REQUEST SUBMISSION. See Rev. Proc. 2011–8 for the appropriate
user fee. Deliver to:
Courier’s Desk
Internal Revenue Service
Attn: SE:T:EP:RA or SE:T:EO:RA
1111 Constitution Avenue, N.W. — PE
Washington, DC 20224

If return is being examined
or considered by an appeals
office or a federal court, the
taxpayer must notify EP or EO
Technical who will notify the
EP or EO Examinations Area
manager, Appeals Area Director
or government counsel

.04 If the taxpayer’s return for the taxable year in which an election should have been made
or any taxable year that would have been affected by the election had it been timely made is
being examined by EP or EO Examinations or the issues in the return are being considered
by an appeals office or a federal court, the taxpayer must notify EP or EO Technical. See,
§ 301.9100–3(e)(4)(i) and section 6.04 of Rev. Proc. 2011–4. EP or EO Technical will notify
the appropriate EP or EO Examinations Area manager or Appeals Area Director or government counsel considering the return that a request for § 301.9100–1 relief has been submitted.
The EP or EO specialist, appeals officer or government counsel is not authorized to deny consideration of a request for § 301.9100–1 relief. The letter ruling will be mailed to the taxpayer
and a copy will be sent to the appropriate EP or EO Examinations Area manager, or Appeals
Area Director or government counsel.

SECTION 7. WHO IS
RESPONSIBLE FOR
REQUESTING TAMs?
EP or EO Examinations
Area manager or EP or EO
Determinations manager or
Appeals Area Director determines
whether to request the advice

2011–1 I.R.B.

.01 The EP or EO Examinations Area manager, the EP or EO Determinations manager or the
Appeals Area Director determines whether to request a TAM on an issue. Each request must
be submitted through proper channels and signed by a person who is authorized to sign for the
EP or EO Examinations Area manager, the EP or EO Determinations manager or the Appeals
Area Director. The mandatory technical advice described in section 4.04(3) of this revenue
procedure, for cases concerning amendments to defined contribution plans in connection with
a waiver of the minimum funding standard and a request for a determination letter, is treated as
if it had been a request for technical advice submitted by the EP Determinations manager. See
section 15 of Rev. Proc. 2011–6 and section 3.04 of Rev. Proc. 2004–15 for the procedural
rules applicable to this particular mandatory technical advice.

173

Sec. 7.01
January 3, 2011

Taxpayer may ask that issue be
referred for TAM

.02 While a case is under the jurisdiction of EP or EO Examinations, EP or EO Determinations, or an Appeals Area Director, a taxpayer may request that an issue be referred to the EP
or EO Technical office for a TAM.

SECTION 8. WHEN SHOULD A
TAM BE REQUESTED?
Uniformity of position lacking

.01 A TAM should be requested when there is a lack of uniformity regarding the disposition
of an issue or when an issue is unusual or complex enough to warrant consideration by EP or
EO Technical.

When can a TAM be requested

.02 Generally, except as provided in section 1.01, the provisions of this revenue procedure
apply only to a case under the jurisdiction of EP or EO Examinations, EP or EO Determinations or an Appeals Area Director. A TAM may also be requested on issues considered in a
prior appeals disposition, not based on mutual concessions for the same tax period of the same
taxpayer, if the appeals office that had the case concurs in the request.
(1) EP or EO Examinations or EP or EO Determinations may not request a TAM on an
issue if an appeals office is currently considering an identical issue of the same taxpayer (or of
a related taxpayer within the meaning of § 267 or an affiliated group of which the taxpayer is
also a member within the meaning of § 1504).
(2) A case remains under the jurisdiction of EP or EO Examinations or EP or EO Determinations even though an appeals office has the identical issue under consideration in the case of
another taxpayer (not related within the meaning of § 267 or § 1504) in an entirely different
transaction. With respect to the same taxpayer or the same transaction, when the issue is under
the jurisdiction of an appeals office, and the applicability of more than one kind of federal tax
is dependent upon the resolution of that issue, EP or EO Examinations or EP or EO Determinations may not request a TAM on the applicability of any of the taxes involved.
(3) EP or EO Examinations or EP or EO Determinations or an Appeals Area Director, also
may not request a TAM on an issue if the same issue of the same taxpayer (or of a related
taxpayer within the meaning of § 267 or a member of an affiliated group of which the taxpayer
is also a member within the meaning of § 1504) is in a docketed case for the same taxpayer
(or for a related taxpayer or a member of an affiliated group of which the taxpayer is also a
member) for any taxable year.

At the earliest possible stage

.03 Once an issue is identified, all requests for a TAM should be made at the earliest possible
stage in the proceeding. The fact that the issue is raised late in the examination, determination
or appeals process should not influence, however, EP or EO Examinations’, EP or EO Determinations’ or an Appeals Area Director’s, decision to request a TAM.

SECTION 9. HOW
ARE PRE-SUBMISSION
CONFERENCES SCHEDULED?
Pre-submission conference
generally is permitted when a
request for TAM is likely and
all parties agree to request the
conference

.01 In an effort to promote expeditious processing of requests for a TAM, EP or EO Technical generally will discuss the issue(s) with the EP or EO Examinations or the EP or EO
Determinations or the appeals office and the taxpayer prior to the time any request for technical advice is formally submitted to EP or EO Technical. In all cases, other than mandatory
TAMs which are described in section 4.04, a pre-submission conference is mandatory.
A request for a pre-submission conference should be made, however, only after the EP or
EO Examinations or the EP or EO Determinations or the appeals office determines that it will
likely request a TAM.
If the request for a TAM will involve more than one function, representatives from each
function involved must participate in the pre-submission conference.

Purpose of pre-submission
conference

Sec. 7.02
January 3, 2011

.02 A pre-submission conference is intended to facilitate agreement between the parties as
to the appropriate scope of the request for a TAM or any collateral issues that either should

174

2011–1 I.R.B.

or should not be included in the request for a TAM, and any other substantive or procedural
considerations that will allow EP or EO Technical to provide the parties with a TAM as expeditiously as possible.
A pre-submission conference is not intended to create an alternate procedure for determining the merits of the substantive positions advocated by the EP or EO Examinations or the
EP or EO Determinations or the appeals office or by the taxpayer. Rather, the conference is
intended only to facilitate the overall process.
Request for pre-submission
conference must be submitted
in writing by the EP or EO
Examinations or the EP or EO
Determinations or the appeals
office

.03 A request for a pre-submission conference must be submitted in writing by the EP or
EO Examinations or the EP or EO Determinations or the appeals office. The request should
identify the office expected to have jurisdiction over the request for a TAM. The request should
include a brief explanation of the primary issue so that an assignment to the appropriate group
can be made.

Group will contact the EP or
EO Examinations or the EP
or EO Determinations or the
appeals office to arrange the
pre-submission conference

.04 Within 5 working days after it receives the request, the group assigned responsibility
for conducting the pre-submission conference will contact the EP or EO Examinations or the
EP or EO Determinations or the appeals office to arrange a mutually convenient time for the
parties to meet (generally by telephone) in the EP or EO Technical office. The conference
generally should be held within 30 calendar days after the EP or EO Examinations or the EP or
EO Determinations or the appeals office is contacted. The EP or EO Examinations or the EP or
EO Determinations or the appeals office will be responsible for coordinating with the taxpayer
as well as with any other Service personnel whose attendance the EP or EO Examinations or
the EP or EO Determinations or the appeals office believes would be appropriate.

Pre-submission conference
generally held by telephone

.05 Generally, pre-submission conferences for TAMs are held by telephone with EP or EO
Technical unless the parties specifically request that the conference be held in person.

.06 At least 10 working days before the scheduled pre-submission conference, the EP or EO
Certain information required to be
submitted to EP or EO Technical Examinations or the EP or EO Determinations or the appeals office and the taxpayer should
submit to EP or EO Technical a statement of the pertinent facts (including any facts in dispute),
prior to the pre-submission
a statement of the issues that the parties would like to discuss, and any legal analysis, authorconference
ities, or background documents that the parties believe would facilitate EP or EO Technical’s
understanding of the issues to be discussed at the conference. The legal analysis provided for
the pre-submission conference need not be as fully developed as the analysis that ultimately
will accompany the request for a TAM, but it should allow EP or EO Technical to become
reasonably informed regarding the subject matter of the conference prior to the meeting. The
EP or EO Examinations or the EP or EO Determinations or the appeals office or the taxpayer
should ensure that the EP or EO Technical office receives a copy of any required power of
attorney, on Form 2848, Power of Attorney and Declaration of Representative.
Manner of submitting
pre-submission materials

.07 The pre-submission materials must be submitted electronically. In order to obtain the
protection of taxpayer information offered by the Service’s Intranet “firewall,” the pre-submission materials must be electronically transmitted by the Service office assigned to the request.
To the extent that supporting materials cannot be submitted electronically, such materials
should be sent by fax or by express mail or private delivery service to the tax law specialist or
actuary in Headquarters assigned to the request. In such cases, the appropriate provisions of
section 10.05 should be followed.

Pre-submission conference may
not be taped

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

Discussion of substantive issues is
not binding on the Service

.09 Any discussion of substantive issues at a pre-submission conference is advisory only, is
not binding on the Service, and cannot be relied upon as a basis for obtaining retroactive relief
under the provisions of § 7805(b).

2011–1 I.R.B.

175

Sec. 9.09
January 3, 2011

SECTION 10. WHAT MUST BE
INCLUDED IN THE REQUEST
FOR A TAM?
Statement of issues, facts, law, and
.01 Whether initiated by the taxpayer or by an EP or EO Examinations or an EP or EO
arguments
Determinations or an appeals office, a request for a TAM must include the facts and the issues
for which the TAM is requested, and a written statement that clearly sets forth the applicable
law and the arguments in support of both the Service’s and the taxpayer’s positions on the issue
or issues.
Taxpayer must submit statement
(1) If the taxpayer initiates the request for a TAM, the taxpayer must submit to the EP or EO
if the taxpayer initiates request for specialist or appeals office, at the time the taxpayer initiates the request, a written statement—
a TAM
(a) stating the facts and the issues;
(b) explaining the taxpayer’s position;
(c) discussing any relevant statutory provisions, tax treaties, court decisions, regulations,
revenue rulings, revenue procedures, notices, or any other authority supporting the taxpayer’s
position; and
(d) stating the reasons for requesting technical advice.
If the EP or EO specialist or the appeals office determines that a TAM will be requested, the
taxpayer’s statement will be forwarded to EP or EO Technical with the request for the TAM.
Taxpayer is encouraged to submit
statement if Service initiates
request for a TAM

(2) If the request for a TAM is initiated by an EP or EO Examinations office or by an EP
or EO Determinations office or by an appeals office, the taxpayer is encouraged to submit the
written statement described in section 10.01(1) of this revenue procedure. If the taxpayer’s
statement is received after the request for the TAM has been forwarded to EP or EO Technical,
the statement will be forwarded to EP or EO Technical for association with the TAM.

Statement of authorities contrary
to taxpayer’s position

(3) Whether the request for a TAM is initiated by the taxpayer or by an EP or EO Examinations office or by an EP or EO Determinations office or by an appeals office, the taxpayer is
encouraged to comment on any legislation, tax treaties, regulations, revenue rulings, revenue
procedures, or court decisions contrary to the taxpayer’s position. If the taxpayer determines
that there are no contrary authorities, a statement to this effect would be helpful. If the taxpayer does not furnish either contrary authorities or a 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 exists.

General provisions of §§ 6104 and
6110

.02 Generally, § 6104(a)(1)(B) provides that an application filed with respect to: (1) the
qualification of a pension, profit-sharing, or stock bonus plan under § 401(a) or § 403(a) or
an individual retirement arrangement under § 408(a) or § 408(b) will be open to public inspection pursuant to regulations as will (2) any application filed for an exemption from tax
under § 501(a) of an organization forming part of a plan or account described above. Generally, § 6110(a) provides that except as provided otherwise, written determinations (defined
in § 6110(b)(1) as rulings, determination letters, technical advice memorandums and Chief
Counsel advice) and any related background file document will be open to public inspection
pursuant to regulations.

Application of § 6104

.03 The requirements for submitting statements and other materials or proposed deletions
in TAMs before public inspection is allowed do not apply to requests for any documents to the
extent § 6104 applies.

Statement identifying information
to be deleted from public
inspection

.04 The text of a TAM subject to § 6110(a) may be open to public inspection. The Service
deletes certain information from the text before it is made available for inspection. To help
the Service make the deletions required by § 6110(c), the taxpayer must provide a statement
indicating the deletions desired (“deletions statement”). If the taxpayer does not submit the
deletions statement, the Service will follow the procedures in section 11.06 of this revenue
procedure.

Sec. 10
January 3, 2011

176

2011–1 I.R.B.

A taxpayer who wants only names, addresses, and identifying numbers deleted should state
this in the deletions statement. If the taxpayer wants more information deleted, the deletions
statement must be accompanied by a copy of the TAM request and supporting documents on
which the taxpayer should bracket the material to be deleted. The deletions statement must
indicate the statutory basis, under § 6110(c) for each proposed deletion.
The taxpayer may submit additional deletions statements before the TAM is issued.
The deletions statement must not appear in the request for a TAM but, instead, must be made
in a separate document.
The deletions statement must be signed and dated by the taxpayer or the taxpayer’s authorized representative. A stamped signature or a faxed signature is not permitted.
The taxpayer should follow these same procedures to propose deletions from any additional
information submitted after the initial request for a TAM. An additional deletions statement,
however, is not required with each submission of additional information if the taxpayer’s initial
deletions statement requests that only names, addresses, and identifying numbers are to be
deleted and the taxpayer wants the same information deleted from the additional information.
Transmittal Form 5565, Request
for Technical Advice — EP/EO

.05 The EP or EO Examinations or the EP or EO Determinations or the appeals office (including another Operating Division of the Service involved in an examination where EP Technical does not have audit jurisdiction but has interpretive jurisdiction as enumerated in section
6.02 of Rev. Proc. 2011–4) should use Form 5565, Request for Technical Advice — EP/EO,
for transmitting a request for technical advice to EP or EO Technical.
The appropriate office of the Service must submit electronically, the Form 5565 for a TAM
request to [email protected] for EP matters and [email protected] for EO matters.
To the extent feasible, the accompanying documents should be submitted to the same e-mail
address (followed by a hard copy if requested by the assigned group). See section 9.07 for
additional information.
The applicable office should submit additional documents that are not available in electronic
form by fax to 202–283–9654 for EP matters and 202–283–8858 for EO matters or by express
mail or private delivery service to the address below.
Whenever possible, all documents should contain the case number and name of the tax law
specialist or actuary assigned to the pre-submission conference for the TAM request. Documents that are being sent in hardcopy should be sent on the business day before the day that
the request for a TAM is submitted via e-mail, so as not to delay the process. It is anticipated
that most, if not all, such documents will be identified during the pre-submission conference.
The field and the taxpayer are encouraged to provide electronic versions of a proposed TAM
containing the taxpayer’s deletions and legends for EP Technical’s or EO Technical’s use.

Address to send requests from EP
or EO Examinations or EP or EO
Determinations offices or another
Operating Division

Employee Plans
Internal Revenue Service
Attn: SE:T:EP:RA
1111 Constitution Ave., NW — PE
Washington, DC 20224
Exempt Organizations
Internal Revenue Service
Attn: SE:T:EO:RA
1111 Constitution Ave., NW — PE
Washington, DC 20224
If a request is from an Appeals office and is within EP/EO’s jurisdiction, the field office
must send the request for a TAM to one of the above offices with an electronic copy (no paper
copy to follow) to the TAM Coordinator in the Office of Tax Policy & Valuation.

2011–1 I.R.B.

177

Sec. 10.05
January 3, 2011

Power of attorney

.06 Any authorized representative, as described in section 9.02 of Rev. Proc. 2011–4,
whether or not enrolled to practice, must comply with Treasury Department Circular No. 230,
as revised, and with the conference and practice requirements of the Statement of Procedural
Rules (26 CFR part 601). A Form 2848, Power of Attorney and Declaration of Representative,
must be used with regard to requests for a TAM under this revenue procedure. An original, a
copy or a fax transmission of the power of attorney is acceptable so long as its authenticity is
not reasonably disputed.

SECTION 11. HOW ARE
REQUESTS HANDLED?
Taxpayer notified

.01 Regardless of whether the taxpayer or the Service initiates the request for a TAM, the EP
or EO Examinations or the EP or EO Determinations or the appeals office: (1) will notify the
taxpayer that the TAM is being requested; and (2) at or before the time the request is submitted
to EP or EO Technical, will give to the taxpayer a copy of the arguments that are being provided
to EP or EO Technical in support of its position.
If the EP or EO specialist or appeals office initiates the request for a TAM, he or she will
give to the taxpayer a copy of the statement of the pertinent facts and the issues proposed for
submission to EP or EO Technical.
This section 11.01 does not apply to a TAM described in section 11.07 of this revenue procedure.

Consider whether published
guidance is appropriate

.02 Whenever the assigned reviewer suspects that general guidance should be published
regarding the issue presented, the reviewer will notify the Manager, Technical who in turn
will notify the Manager, Technical Guidance and Quality Assurance. The Manager, Technical
Guidance and Quality Assurance will then determine if the issue meets publication standards.
In general, except where policy issues and concerns regarding proper administration of the tax
laws require otherwise, the TAM will be issued in advance of published guidance.

Conference offered

.03 When notifying the taxpayer that technical advice is being requested, the EP or EO
specialist or appeals office will also tell the taxpayer about the right to a conference in EP
or EO Technical if an adverse decision is indicated and will ask the taxpayer whether such a
conference is desired.

If the taxpayer disagrees with the
Service’s statement of facts

.04 If the EP or EO specialist or appeals office initiates the request for a TAM, the taxpayer
has 10 calendar days after receiving the statement of facts and specific issues to submit to that
specialist or office a written statement specifying any disagreement on the facts and issues.
A taxpayer who needs more than 10 calendar days must justify, in writing, the request for an
extension of time. The extension is subject to the approval of the EP or EO Examinations Area
manager or the EP or EO Determinations manager or the Appeals Area Director.
After receiving the taxpayer’s statement of the areas of disagreement, every effort should
be made to reach agreement on the facts and the specific points at issue before the matter is
referred to EP or EO Technical. If an agreement cannot be reached, the EP or EO Examinations
or the EP or EO Determinations or the appeals office will notify the taxpayer in writing. Within
10 calendar days after receiving the written notice, the taxpayer may submit a statement of the
taxpayer’s understanding of the facts and the specific points at issue. A taxpayer who needs
more than 10 calendar days to prepare the statement of understanding must justify, in writing,
the request for an extension of time. The extension is subject to the approval of the EP or EO
Examinations Area manager or the EP or EO Determinations manager or the Appeals Area
Director. Both the statements of the taxpayer and the EP or EO Examinations or EP or EO
Determinations or appeals office will be forwarded to EP or EO Technical with the request for
a TAM.
When EP or EO Examinations or EP or EO Determinations or the Appeals Area Director
and the taxpayer cannot agree on the material facts and the request for a TAM does not involve
the issue of whether a letter ruling or determination letter should be modified or revoked, EP

Sec. 10.06
January 3, 2011

178

2011–1 I.R.B.

or EO Technical, at its discretion, may refuse to provide technical advice. If EP or EO Technical chooses to issue the TAM, it will base its advice on the facts provided by the EP or EO
Examinations or EP or EO Determinations or appeals office.
If a request for a TAM involves the issue of whether a letter ruling or determination letter
should be modified or revoked, EP or EO Technical will issue the TAM.
If the Service disagrees with the
taxpayer’s statement of facts

.05 If the taxpayer initiates the action to request a TAM, and the taxpayer’s statement of
the facts and issues is not wholly acceptable to the EP or EO Examinations or the EP or EO
Determinations or the appeals office, the Service will notify the taxpayer in writing of the areas
of disagreement. The taxpayer has 10 calendar days after receiving the written notice to reply
to it. A taxpayer who needs more than 10 calendar days must justify in writing the request for
an extension of time. The extension is subject to the approval of the EP or EO Examinations
Area manager, or the EP or EO Determinations manager or the Appeals Area Director.
If an agreement cannot be reached, both the statements of the taxpayer and the EP or EO
Examinations office or the EP or EO Determinations office or appeals office will be forwarded
to EP or EO Technical with the request for a TAM. When the disagreement involves material
facts essential to the preliminary assessment of the case, the EP or EO Examinations Area
manager, the EP or EO Determinations manager or the Appeals Area Director may refuse to
refer a taxpayer initiated request for the TAM to EP or EO Technical.
If EP or EO Examinations or EP or EO Determinations or an Appeals Area Director submits
a case involving a disagreement of material facts, EP or EO Technical, at its discretion, may
refuse to provide the TAM. If EP or EO Technical chooses to issue the TAM, it will base its
advice on the facts provided by the EP or EO Examinations or the EP or EO Determinations
or the appeals office.

If the taxpayer has not submitted
the required deletions statement

.06 When the EP or EO Examinations or the EP or EO Determinations or the appeals office
initiates the request for a TAM, the taxpayer has 10 calendar days after receiving the statement
of facts and issues to be submitted to EP or EO Technical to provide the deletions statement
required under § 6110 if public inspection is permitted pursuant to § 6110 (see section 10.05 of
this revenue procedure). In such a case, if the taxpayer does not submit the deletions statement,
the EP or EO Examinations or the EP or EO Determinations or the appeals office, will tell the
taxpayer that the statement is required.
When the taxpayer initiates the request for a TAM and does not submit with the request a
deletions statement as required by § 6110, EP or EO Examinations or EP or EO Determinations or the Appeals Area Director will ask the taxpayer to submit the statement. If EP or EO
Examinations or EP or EO Determinations or the Appeals Area Director does not receive the
deletions statement within 10 calendar days after asking the taxpayer for it, EP or EO Examinations or EP or EO Determinations or the Appeals Area Director may decline to submit the
request for the TAM.
However, if the EP or EO Examinations office or the EP or EO Determinations office or the
Appeals Area Director decides to request a TAM, whether initiated by the EP or EO Examinations office or the EP or EO Determinations office or the appeals office or by the taxpayer,
in a case in which the taxpayer has not submitted the deletions statement, EP or EO Technical
will make those deletions that the Commissioner of Internal Revenue determines are required
by § 6110(c).

Criminal or civil fraud cases

.07 The provisions of this section (about referring issues upon the taxpayer’s request, obtaining the taxpayer’s statement of the areas of disagreement, telling the taxpayer about the
referral of issues, giving the taxpayer a copy of the arguments submitted, submitting proposed
deletions, and granting conferences in EP or EO Technical) do not apply to a TAM described
in § 6110(g)(5)(A) that involves a matter that is the subject of or is otherwise closely related
to a criminal or civil fraud investigation, or a jeopardy or termination assessment.
In these cases, a copy of the TAM is given to the taxpayer after all proceedings in the investigations or assessments are complete, but before the Service mails the notice of intention

2011–1 I.R.B.

179

Sec. 11.07
January 3, 2011

to disclose the TAM under § 6110(f)(1). The taxpayer may then provide the statement of proposed deletions to EP or EO Technical.
SECTION 12. HOW DOES A
TAXPAYER APPEAL AN EP
OR EO MANAGER’S OR AN
APPEALS AREA DIRECTOR’S
DECISION NOT TO SEEK
TECHNICAL ADVICE?
Taxpayer notified of decision not
to seek a TAM

.01 If the EP or EO specialist’s or the appeal’s referral of an issue to EP or EO Technical
for a TAM is not warranted, the EP or EO specialist or the appeals office will tell the taxpayer.
A taxpayer’s request for such a referral will not be denied merely because EP or EO Technical
provided legal advice, other than advice furnished pursuant to this revenue procedure, to the
EP or EO Examinations or the EP or EO Determinations or appeals office on the matter.

Taxpayer may request review of
decision not to seek a TAM

.02 The taxpayer may request review of the decision of the EP or EO specialist or the appeals office not to request a TAM in all instances. To do so, the taxpayer must submit to that
specialist or office, within 10 calendar days after being told of the decision, a written statement
of the facts, law, and arguments on the issue and the reasons why the taxpayer believes the
matter should be referred to EP or EO Technical for a TAM. A taxpayer who needs more than
10 calendar days must justify in writing the request for an extension of time. The extension is
subject to the approval of the EP or EO Examinations Area manager or the EP or EO Determinations manager or the appropriate appeals office.

EP or EO Examinations
Area manager or EP or EO
Determinations manager or
Appeals Area Director determines
whether technical advice will be
sought

.03 The EP or EO specialist or the appeals office submits the taxpayer’s statement through
proper channels to the EP or EO Examinations Area manager or the EP or EO Determinations
manager or the Appeals Area Director along with the EP or EO specialist’s or the appeals
office’s statement of why the issue should not be referred to EP or EO Technical. The manager
or chief determines, on the basis of the statements, whether a TAM will be requested.
If the manager or chief determines that a TAM is not warranted and proposes to deny the
request, the taxpayer is told in writing about the determination. In the letter to the taxpayer,
the manager or chief states the reasons for the proposed denial (except in unusual situations
when doing so would be prejudicial to the best interests of the Government). The taxpayer
has 10 calendar days after receiving the letter to notify the manager or chief of agreement or
disagreement with the proposed denial.

Manager or area director’s
decision may be reviewed but not
appealed

.04 The taxpayer may not appeal the decision of the EP or EO Examinations Area manager
or the EP or EO Determinations manager or the Appeals Area Director not to request a TAM
from EP or EO Technical. However, if the taxpayer does not agree with the proposed denial, all
data on the issue for which the TAM has been sought, including the taxpayer’s written request
and statements, will be submitted to the Commissioner, Tax Exempt and Government Entities
Division or the Appeals Director Tax Policy & Procedure (Exam), as appropriate.
The Commissioner, Tax Exempt and Government Entities Division through the Director,
Employee Plans, or the Director, Exempt Organizations or, if appropriate, the Appeals Director Tax Policy & Procedure (Exam) will review the proposed denial solely on the basis of the
written record, and no conference will be held with the taxpayer or the taxpayer’s representative. The appropriate Director or his or her representative may consult with EP or EO Technical
and the Office of Chief Counsel, if necessary, and will notify the EP or EO Examinations or
the EP or EO Determinations or the appeals office within 45 calendar days of receiving all the
data regarding the request for a TAM whether the proposed denial is approved or disapproved.
The EP or EO Examinations or the EP or EO Determinations or appeals office will then notify
the taxpayer.
While the matter is being reviewed, the EP or EO Examinations office or the EP or EO
Determinations office or the appeals office suspends action on the issue (except when the delay
would prejudice the Government’s interest).

Sec. 11.07
January 3, 2011

180

2011–1 I.R.B.

The provisions of this revenue procedure regarding review of the proposed denial of a request for a TAM continue to be applicable in those situations in which the authority normally
exercised by the EP or EO Examinations Area manager, the EP or EO Determinations manager, or the Appeals Area Director has been delegated to another official.
SECTION 13. HOW ARE
REQUESTS FOR TAMS
WITHDRAWN?
Taxpayer notified

.01 Once a request for a TAM has been sent to EP or EO Technical, only an EP or EO Examinations Area manager, an EP or EO Determinations manager or the Appeals Area Director
may withdraw that request for the TAM. He or she may ask to withdraw a request at any time
before the responding transmittal memorandum transmitting the TAM is signed.
The EP or EO Examinations Area manager, the EP or EO Determinations manager or the
Appeals Area Director as appropriate, must notify the taxpayer in writing of an intent to withdraw the request for the TAM except—
(1) when the period of limitations on assessment is about to expire and the taxpayer has
declined to sign a consent to extend the period, or
(2) when such notification would be prejudicial to the best interests of the Government.
If the taxpayer does not agree that the request for a TAM should be withdrawn, the procedures in section 12 of this revenue procedure must be followed.

EP or EO Technical may provide
views

.02 When a request for a TAM is withdrawn, EP or EO Technical may send its views to
the EP or EO Examinations office or the EP or EO Determinations office or the Appeals Area
Director when acknowledging the withdrawal request. 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 as a revenue procedure.

SECTION 14. HOW ARE
CONFERENCES SCHEDULED?
If requested, offered to the
taxpayer when adverse TAM
proposed

.01 If, after the TAM is analyzed, it appears that a TAM adverse to the taxpayer will be
given, and if a conference has been requested, the taxpayer will be informed, by telephone if
possible, of the time and place of the conference.

Timeline

.02 The conference for a TAM must be held within 21 calendar days after the taxpayer is
contacted.
If conferences are being arranged for more than one request for a TAM for the same taxpayer, they will be scheduled to cause the least inconvenience to the taxpayer. If considered
appropriate, EP or EO Technical will notify the EP or EO specialist or the appeals office of
the scheduled conference and will offer the EP or EO specialist or the appeals officer the opportunity to attend the conference. The Commissioner, Tax Exempt and Government Entities
Division, the Chief, Appeals, the EP or EO Examinations Area manager, the EP or EO Determinations manager, or the Appeals Area Director may designate other Service representatives
to participate in the conference in lieu of, or in addition to, the EP or EO specialist or the appeals officer.

21-day period may be extended if
justified and approved

2011–1 I.R.B.

.03 An extension of the 21-day period will be granted only if the taxpayer justifies it in writing, and the group manager (or his or her delegate) of the office to which the case is assigned
approves it. No extension will be granted without the approval of the group manager (or his
or her delegate). The taxpayer (or an authorized representative) must notify the EP Specialist
or the EO Specialist or the appeals office of the request for an extension. Except in rare and
unusual circumstances, EP or EO Technical will not agree to an extension of more than 10
working days beyond the end of the 21-day period.

181

Sec. 14.03
January 3, 2011

The taxpayer’s request for an extension must be submitted before the end of the 21-day
period, and should be submitted sufficiently before the end of this period to allow EP or EO
Technical to consider, and either approve or deny, the request before the end of the 21-day
period. If unusual circumstances near the end of the period make a timely written request
impractical, the taxpayer (or an authorized representative) should orally inform the assigned
tax law specialist or actuary before the end of the period about the problem and about the
forthcoming written request for an extension. The written request for an extension must be
submitted to EP or EO Technical promptly after the oral request. The taxpayer will be told
promptly (and later in writing) of the approval or denial of the requested extension.
Denial of extension cannot be
appealed

.04 There is no right to appeal the denial of a request for an extension of a TAM. If EP or EO
Technical is not advised of problems with meeting the 21-day period, or if the written request
is not sent promptly after EP or EO Technical is notified of problems with meeting the 21-day
period, the TAM will be processed on the basis of the existing record.

Entitled to one conference of right

.05 A taxpayer is entitled by right to only one conference in EP or EO Technical except
as provided in section 14.09 of this revenue procedure. This conference is normally held at
the group level in EP Technical or EO Technical, whichever is appropriate. It is attended by
a person who has authority to sign the transmittal memorandum discussed in section 16.13 on
behalf of the group manager.
When more than one group has taken an adverse position on an issue in the request, or
when the position ultimately adopted by one group will affect another group’s determination,
a representative from each group with authority to sign for the group manager will attend the
conference. If more than one subject is discussed at the conference, the discussion constitutes
the conference of right for each subject discussed.
To have a thorough and informed discussion of the issues, the conference usually is held
after the group 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 group to any other Service official. But
see section 14.09 for situations in which the Service may offer additional conferences.

Conference may not be taped

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

Conference may be delayed to
address a request for relief under
§ 7805(b)

.07 In the event of a tentative adverse determination, the taxpayer may request in writing
a delay of the conference so that the taxpayer can prepare and submit a brief requesting relief under § 7805(b) (discussed in section 19 of this revenue procedure). The group manager
(or his or her delegate) of the office to which the case is assigned will determine whether to
grant or deny the request for delaying the conference. If such request is granted, the Service
will schedule a conference on the tentatively adverse position and the § 7805(b) relief request
within 10 days of receiving the taxpayer’s § 7805(b) request. See, section 19.06 of this revenue
procedure for the conference procedures if the § 7805(b) request is made after the conference
on the substantive issues has been held.

Service makes tentative
recommendations

.08 The senior Service representative at the conference ensures that the taxpayer has full
opportunity to present views on all the issues in question. The Service representatives explain
the tentative decision on the substantive issues.
If the taxpayer requests relief under § 7805(b) (regarding limitation of retroactive effect),
the Service representatives will discuss the tentative recommendation concerning the request
for relief and the reason(s) for the tentative recommendation.
No commitment will be made as to the conclusion that the Service will finally adopt regarding any issue, including the outcome of the § 7805(b) request for relief.

Sec. 14.03
January 3, 2011

182

2011–1 I.R.B.

Additional conferences may be
offered

.09 The Service will offer the taxpayer an additional conference if, after the conference
of right, an adverse holding is proposed on a new issue or on the same issue but on grounds
different from those discussed at the first conference.
When a proposed holding is reversed at a higher level with a result less favorable to the
taxpayer, the taxpayer has no right to another conference if the grounds or arguments on which
the reversal is based were discussed at the conference of right.
The limitation on the number of conferences to which a taxpayer is entitled does not prevent EP or EO Technical from inviting a taxpayer to attend additional conferences, including
conferences with an official higher than the group level, if EP or EO Technical personnel think
they are necessary. Such conferences are not offered as a matter of course simply because the
group has reached an adverse decision. In general, conferences with higher level officials are
offered only if the Service determines that the case presents significant issues of tax policy or
tax administration and that the consideration of these issues would be enhanced by additional
conferences with the taxpayer.
In accordance with section 14.02 of this revenue procedure, the EP or EO specialist or the
appeals office may be offered the opportunity to participate in any additional taxpayer’s conference, including a conference with an official higher than the group level. Section 14.02 of
this revenue procedure also provides that other Service representatives are allowed to participate in the conference.

Additional information submitted
after the conference

.10 After the conference, the taxpayer must furnish to EP or EO Technical, whichever is
applicable, 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. This
additional information must be submitted by letter with a penalties of perjury statement in the
form described in section 16.10 of this revenue procedure.
For TAMs the taxpayer must also send a copy of the additional information to the EP or EO
Examinations office or the EP or EO Determinations office or the Appeals Area Director for
comment. Any comments on additional information by Service personnel must be furnished
promptly to the appropriate group in EP or EO Technical. If the EP or EO Examinations office
or the EP or EO Determinations office or the Appeals Area Director does not have any comments, he or she must notify the group representative promptly.
If the additional information has a significant impact on the facts in the request for a TAM,
EP or EO Technical will ask EP or EO Examinations or EP or EO Determinations or the Appeals Area Director for comments on the facts contained in the additional information submitted. The EP or EO Examinations office or the EP or EO Determinations office or the Appeals
Area Director will give the additional information prompt attention.
If the additional information is not received from the taxpayer within 21 calendar days, the
TAM will be issued on the basis of the existing record.
An extension of the 21-day period for TAMs may be granted only if the taxpayer justifies
it in writing, and the group manager (or his or her delegate) of the office to which the case is
assigned approves the extension. Such extension will not be routinely granted. The procedures
for requesting an extension of the 21-day period and notifying the taxpayer of the Service’s
decision are the same as those in sections 14.03 and 14.04 of this revenue procedure.

Normally held by telephone

.11 The conference will be conducted by telephone, unless the taxpayer or the field requests
that the conference be held in person. The taxpayer will be advised when to call the Service
representatives (not a toll-free call). In no event will the conference be delayed to provide an
in-person conference rather than a telephone conference.
In accordance with section 14.02 of this revenue procedure, the EP or EO specialist or appeals office will be offered the opportunity to participate in the telephone conference. Section
14.02 of this revenue procedure also provides that other Service representatives are allowed to
participate in the conference.

2011–1 I.R.B.

183

Sec. 14.11
January 3, 2011

SECTION 15. HOW IS STATUS
OF REQUEST OBTAINED?
Taxpayer or taxpayer’s
representative may request status
from EP or EO Examinations
or EP or EO Determinations or
appeals office

.01 The taxpayer or the taxpayer’s representative may obtain information on the status of
the request for a TAM by contacting the EP or EO Examinations office or the EP or EO Determinations office or the appeals office that requested the TAM. See section 16.08 of this revenue
procedure concerning the time for discussing the tentative conclusion with the taxpayer’s representative. See section 17.03 of this revenue procedure regarding discussions of the contents
of the TAM with the taxpayer or the taxpayer’s representative.

EP or EO Technical will give
status updates to the EP or
EO Examinations or EP or EO
Determinations or Appeals Area
Director

.02 The group representative or manager to whom the TAM request is assigned will give
status updates on the request once a month to the EP or EO Examination Area manager or
the EP or EO Determinations manager or the Appeals Area Director. In addition, an EP or
EO Examinations Area manager or an EP or EO Determinations manager or an Appeals Area
Director may get current information on the status of the request for a TAM by calling the
person whose name and telephone number are shown on acknowledgment of receipt of the
request for the TAM.
See section 16.09 of this revenue procedure about discussing the final conclusions with the
EP or EO Examinations office or the EP or EO Determinations office or the appeals office.
Further, the EP or EO Examinations office or the EP or EO Determinations office or the Appeals Area Director will be notified at the time the TAM is mailed.

SECTION 16. HOW DOES EP
OR EO TECHNICAL PREPARE
THE TAM?
Delegates authority to group
managers

.01 The authority to issue a TAM on issues under the jurisdiction of the Commissioner,
Tax Exempt and Government Entities Division has largely been delegated to the managers of
the Employee Plans Rulings & Agreements Technical and Actuarial groups, and the Technical
Guidance and Quality Assurance group (collectively referred to as “EP Technical”); and of the
Exempt Organizations Rulings & Agreements Technical groups and the Technical Guidance
and Quality Assurance group (collectively referred to as “EO Technical”).

Determines whether request has
been properly made

.02 A request for a TAM generally is given priority and processed expeditiously. As soon
as the request for a TAM is assigned, the technical employee analyzes the file to see whether
it meets all of the requirements of sections 7, 8, and 10 of this revenue procedure.
However, if the request does not comply with the requirements of section 10.04 of this
revenue procedure relating to the deletions statement, the Service will follow the procedure in
section 11.06 of this revenue procedure.

Contacts the EP or EO
Examinations or EP or EO
Determinations or appeals office
to discuss issues

.03 Upon receipt of a request for a TAM, a representative of the group assigned the TAM
will telephone the EP or EO Examinations office or the EP or EO Determinations office or the
appeals office to acknowledge receipt of the TAM and to establish a point of contact. Within
21 calendar days from the receipt of a TAM, the tax law specialist or actuary should contact
the EP or EO specialist or appeals office to discuss the procedural and substantive issues in the
request that come within the group’s jurisdiction.

Informs the EP or EO
Examinations or EP or EO
Determinations or appeals office
if any matters in the request have
been referred to another group or
office

.04 If the technical advice request concerns matters within the jurisdiction of more than one
group or office, a representative of the group that received the original technical advice request
generally informs the EP or EO Examinations office or the EP or EO Determinations office or
the appeals office within 21 calendar days of receiving the request that—
(1) the matters within the jurisdiction of another group or office have been referred to the
other group or office for consideration, and
(2) a representative of the other group or office will contact the EP or EO Examinations
office or the EP or EO Determinations office or the appeals office about the referral of the

Sec. 15
January 3, 2011

184

2011–1 I.R.B.

technical advice request within 21 calendar days after receiving it in accordance with section
16.03 above.
.05 The group representative will inform the EP or EO Examinations office or the EP or EO
Informs the EP or EO
Determinations office or the appeals office that the case is being returned if substantial addiExaminations or EP or EO
Determinations or appeals office if tional information is required to resolve an issue. Cases also should be returned for additional
information when significant unresolved factual variances exist between the statement of facts
additional information is needed
submitted by the EP or EO Examinations office or the EP or EO Determinations office or the
appeals office and the taxpayer. They should also be returned if major procedural problems
cannot be resolved by telephone. The EP or EO Examinations office or the EP or EO Determinations office or the appeals office should promptly notify the taxpayer of the decision to
return the case for further factual development or other reasons.
If only minor procedural deficiencies exist, the group will request the additional information
in the most expeditious manner without returning the case.
Informs the EP or EO
Examinations or EP or EO
Determinations or appeals office
of the tentative conclusion

.06 If all necessary information has been provided, the group representative informs the EP
or EO Examinations office or the EP or EO Determinations office or the appeals office within
21-calendar days after receiving the information for a TAM of his or her tentative conclusion.

If a tentative conclusion has not
.07 If a tentative conclusion has not been reached because of the complexity of the issue, the
been reached, gives date estimated group representative informs the EP or EO Examinations office or the EP or EO Determinations
for tentative conclusion
office or the appeals office of the estimated date the tentative conclusion will be made.
Advises the EP or EO
Examinations or EP or EO
Determinations or appeals office
that preliminary conclusion not
final

.08 Because the group representative’s tentative conclusion may change during the preparation and review of the TAM, the tentative conclusion should not be considered final. Therefore,
neither the group representative nor the EP or EO Examinations office or the EP or EO Determinations or the appeals office should advise the taxpayer or the taxpayer’s representative of
the tentative conclusion before the scheduling of the adverse conference or between the scheduling and the commencement of the adverse conference.

Advises the EP or EO
Examinations or EP or EO
Determinations or appeals office
of final conclusions

.09 In all cases, the group representative should inform the EP or EO specialist or appeals
office of EP or EO Technical’s final conclusions. The EP or EO specialist or the appeals office
should be offered the opportunity to discuss the issues and EP or EO Technical’s final conclusions before the TAM is issued.

If needed, requests additional
information

.10 If, following the initial contact referenced in section 16.03 of this revenue procedure, it
is determined, after discussion with the appropriate group manager or reviewer, that additional
information is needed, a group representative will obtain the additional information from the
taxpayer, the EP or EO Examinations office or the EP or EO Determinations office or the
Appeals Area Director in the most expeditious manner possible. Any additional information
requested from the taxpayer by EP or EO Technical must be submitted by letter, accompanied
by a penalties of perjury statement, within 21 calendar days after the request for information
is made.

Request for additional information
(1) To facilitate prompt action on TAM requests, the Service may request any additional
by fax
information from the taxpayer by fax.
A request to fax a copy of additional information to the taxpayer or the taxpayer’s authorized
representative must be made in writing, either as part of the original TAM request or prior to
the mailing of the request for additional information. The request to fax additional information
must contain the fax number of the taxpayer or the taxpayer’s authorized representative to and
from whom the document is to be faxed.
Because of the unsecured nature of a fax transmission, the Service will take certain precautions to protect confidential information. For example, the Service will use a cover sheet that
identifies the intended recipient of the fax and the number of pages transmitted, that does not
identify the taxpayer by name or tax identifying number and that contains a statement prohibiting unauthorized disclosure of the document if a recipient of the faxed document is not the

2011–1 I.R.B.

185

Sec. 16.10
January 3, 2011

intended recipient of the fax. Also, for example, the cover sheet should be faxed in an order in
which it will become the first page covering the faxed document.
Penalties of perjury statement

(2) Additional information submitted to EP or EO Technical must be accompanied by the
following declaration: “Under penalties of perjury, I declare that I have examined this
information, including accompanying documents, and, to the best of my knowledge and
belief, the information contains all the relevant facts relating to the request for the information and such facts are true, correct, and complete.” This declaration must be signed
and dated by the taxpayer, not the taxpayer’s representative. A stamped signature or a faxed
signature is not permitted.
(3) A written request for an extension of time to submit additional information must be
received by EP or EO Technical within the 21-day period, giving compelling facts and circumstances to justify the proposed extension. The group manager (or his or her delegate) of the
office to which the case is assigned will determine whether to grant or deny the request for an
extension. Except in rare and unusual circumstances, EP or EO Technical will not agree to an
extension of more than 10 working days beyond the end of the 21-day period. There is no right
to appeal the denial of a request for an extension.
(4) If EP or EO Technical does not receive the additional information within 21 calendar
days, plus any extensions granted by the appropriate group manager (or his or her delegate),
EP or EO Technical will process the TAM based on the existing record.

Requests taxpayer to send
additional information to the EP
or EO Technical and a copy to the
EP or EO Examinations or EP or
EO Determinations or Appeals
Area Director

.11 Whether or not requested by the Service, any additional information submitted by the
taxpayer should be sent to the headquarters office. Generally, the taxpayer needs only to submit
the original of the additional information to EP or EO Technical. However, in appropriate
cases, EP or EO Technical may request additional copies of the information.

Informs the taxpayer when
requested deletions will not be
made

.12 Generally, before replying to the request for a TAM, EP or EO Technical informs the
taxpayer orally or in writing of the material likely to appear in the TAM that the taxpayer
proposed be deleted but that the Service has determined should not be deleted.

Also, the taxpayer must send a copy to the EP or EO Examinations office, the EP or EO
Determinations office, or the Appeals Area Director, as appropriate, for comment. Any comments must be furnished promptly to the appropriate group in EP or EO Technical. If the EP or
EO Examinations office or the EP or EO Determinations office or the Appeals Area Director
does not have any comments, he or she must notify the group representative promptly.

If so informed, the taxpayer may submit within 10 calendar days any further information or
other arguments supporting the taxpayer’s proposed deletions.
The Service will attempt to resolve all disagreements about proposed deletions before EP or
EO Technical replies to the request for a TAM. However, the taxpayer does not have the right
to a conference to resolve any disagreements about material to be deleted from the text of the
TAM. These matters, however, may be considered at any conference otherwise scheduled for
the request.
Prepares reply in two parts

.13 EP or EO Technical’s reply to a TAM request is in two parts. Each part identifies the
taxpayer by name, address, identification number, and year or years involved.
The first part of the reply is a transmittal memorandum. In unusual cases, it is a way of
giving the EP or EO Examinations office or the EP or EO Determinations office or the appeals
office administrative or other information that under the nondisclosure statutes or for other
reasons may not be discussed with the taxpayer.
The second part is the TAM, which contains—
(1) a statement of the issues;
(2) a statement of the facts pertinent to the issues;

Sec. 16.10
January 3, 2011

186

2011–1 I.R.B.

(3) a statement of the pertinent law, tax treaties, regulations, revenue rulings, and other
precedents published in the Internal Revenue Bulletin, and court decisions;
(4) a discussion of the rationale underlying the conclusions reached by EP or EO Technical;
and
(5) the conclusions of EP or EO Technical.
The conclusions give direct answers, whenever possible, to the specific issues raised by the
EP or EO Examinations office or the EP or EO Determinations office or the appeals office.
However, EP or EO Technical is not bound by the precise statement of the issues as submitted
by the taxpayer or by the EP or EO Examinations office or the EP or EO Determinations office
or the appeals office and may reframe the issues to be answered in the TAM. The discussion in
the TAM of the issues will be in sufficient detail so that the EP or EO Examinations or EP or EO
Determinations or appeals officials will understand the reasoning underlying the conclusion.
Accompanying a TAM subject to § 6110, is a notice under § 6110(f)(1) of intention to disclose the TAM (including a copy of the version proposed to be open to public inspection and
notations of third party communications under § 6110(d)).
Routes replies to appropriate
office

.14 Replies to requests for TAMs from EO Examinations Area managers and EO Determinations managers are addressed to:
Internal Revenue Service
Attn: EO Mandatory Review
MC 4920 DAL
1100 Commerce Street
Dallas, TX 75242
The EO Mandatory Review Staff will ensure that copies are forwarded to the EO Examinations Area manager or the EO Determinations manager.
Replies to requests for TAMs from EP Examinations Area managers as well as replies to all
requests for TAMs from other Operating Divisions of the Service involved in an examination
where EP Technical does not have audit jurisdiction but has interpretive jurisdiction as enumerated in section 6.02 of Rev. Proc. 2011–4, are addressed to:
Internal Revenue Service
Attn: EP Special Review — Room 1550
SE:T:EP:E:PR:SR:Technical Advice Coordinator
P. O. Box 13163
Baltimore, MD 21203
The EP Special Review Staff will ensure that copies are forwarded to the applicable manager.
Replies to requests for TAMs from EP Determinations managers, are addressed to:
Internal Revenue Service
Attn: EP Determinations Quality Assurance
P. O. Box 2508
Cincinnati, OH 45201
Replies to requests for TAMs from the Appeals Area Director are routed back to the appropriate Appeals Area Director.

2011–1 I.R.B.

187

Sec. 16.14
January 3, 2011

SECTION 17. HOW DOES AN
EP OR EO EXAMINATIONS OR
EP OR EO DETERMINATIONS
OR AN APPEALS OFFICE USE
THE TAMs?
Generally applies advice in
processing the taxpayer’s case

.01 The EP or EO Examinations Area manager or the EP or EO Determinations manager or
the Appeals Area Director must process the taxpayer’s case on the basis of the conclusions in
the TAM unless—
(1) the EP or EO Examinations Area manager or the EP or EO Determinations manager or
the Appeals Area Director decides that the conclusions reached by EP or EO Technical in a
TAM should be reconsidered (the reconsideration process may include a conference held with
the EP or EO specialist or appeals office that requested the TAM and the tax law specialist or
actuary who drafted the TAM), or
(2) the Appeals Area Director in the case of a TAM unfavorable to the taxpayer, decides to
settle the issue in the usual manner under existing authority.
Subject to a request for reconsideration of the conclusions in a TAM, EP or EO Examinations or EP or EO Determinations must follow the conclusions in a TAM as to all issues and
the Appeals Area Director must follow the conclusions in a TAM on issues of an organization’s/plan’s status or qualification. Thus, if the TAM received by EP or EO Examinations or
EP or EO Determinations concerns an organization’s/plan’s status or qualification, the organization/plan has no appeal to the appeals office on those specific issues.

Reconsideration

.02 The EP or EO Area Examinations office or the EP or EO Determinations office or the
Appeals Area Director has 30 calendar days after receipt of a TAM to either formally request
reconsideration or give the adopted TAM to the taxpayer. Requests for TAM reconsideration
must describe with specificity the errors in the TAM analysis and conclusions. Requests for
reconsideration should not reargue points raised in the initial request, but should instead focus
on points that the TAM overlooked or misconstrued in the arguments by the EP or EO Area
Examinations office or the EP or EO Determinations office or the Appeals Area Director in
support of their request. The Headquarters office may request further submissions from the
field or the taxpayer, but the parties should make no additional submissions in the absence of
such a request.
If the field does not request reconsideration of a TAM, the TAM will take effect when the
field provides a copy of the adopted TAM to the taxpayer, or at the end of the 30-day period
following the issuance of the TAM to the field.

Discussion with the taxpayer

.03 EP or EO Technical will not discuss the contents of the TAM with the taxpayer or the
taxpayer’s representative until the taxpayer has been given a copy by the EP or EO Examinations office or the EP or EO Determinations office or the appeals office

Gives copy to the taxpayer

.04 The EP or EO Examinations office or the EP or EO Determinations office or the Appeals Area Director only after adopting the TAM, gives the taxpayer (1) a copy of the TAM
described in section 16.13, and (2) the notice under § 6110(f)(1) of intention to disclose the
TAM (including a copy of the version proposed to be open to public inspection and notations
of third party communications under § 6110(d)).
This requirement does not apply to a TAM involving a criminal or civil fraud investigation,
or a jeopardy or termination assessment, as described in section 11.07 of this revenue procedure, or documents to which § 6104 (document open to public inspection) applies as described
in section 10.03.

Taxpayer may protest deletions
not made

Sec. 17
January 3, 2011

.05 After receiving the notice under § 6110(f)(1) of intention to disclose the TAM, the taxpayer may protest the disclosure of certain information in it. The taxpayer must submit a written
statement within 20 calendar days identifying those deletions not made by the Service that the
taxpayer believes should have been made. The taxpayer must also submit a copy of the version

188

2011–1 I.R.B.

of the TAM proposed to be open to public inspection with brackets around deletions proposed
by the taxpayer that have not been made by EP or EO Technical.
Generally, EP or EO Technical considers only the deletion of material that the taxpayer
has proposed be deleted or other deletions as required under § 6110(c) before the EP or EO
Technical reply is sent to the EP or EO Examinations office or the EP or EO Determinations
office or the Appeals Area Director. Within 20 calendar days after it receives the taxpayer’s
response to the notice under § 6110(f)(1), EP or EO Technical must mail the taxpayer its final
administrative conclusion about the deletions to be made.
When no copy is given to the
taxpayer

.06 If EP or EO Technical tells the EP or EO Examinations office or the EP or EO Determinations office or the Appeals Area Director that a copy of the TAM should not be given to
the taxpayer and the taxpayer requests a copy, the EP or EO Examinations office or the EP or
EO Determinations office or the Appeals Area Director will tell the taxpayer that no copy will
be given.

SECTION 18. WHAT IS THE
EFFECT OF A TAM?
Applies only to the taxpayer for
whom TAM was requested

.01 A taxpayer may not rely on a TAM issued by the Service for another taxpayer.

Usually applies retroactively

.02 Except when stated otherwise, a holding in a TAM is applied retroactively, unless the
Commissioner, Tax Exempt and Government Entities Division exercises discretionary authority under § 7805(b) to limit the retroactive effect of the holding. Section 18.06 below lists
the criteria necessary for granting § 7805(b) relief, and section 18 of this revenue procedure
describes the effect of § 7805(b) relief.

Generally applied retroactively to
modify or revoke prior TAM

.03 A holding that modifies or revokes a holding in a prior TAM is applied retroactively,
with one exception. If the new holding is less favorable to the taxpayer than the earlier one, it
generally is not applied to the period when the taxpayer relied on the prior holding in situations
involving continuing transactions.

Applies to continuing action or
series of actions until specifically
withdrawn, modified, or revoked

.04 If a TAM relates to a continuing action or a series of actions, ordinarily it is applied
until specifically withdrawn or until the conclusion is modified or revoked by enactment of
legislation, ratification of a tax treaty, a decision of the United States Supreme Court, or the
issuance of regulations (temporary or final), a revenue ruling, or other statement published in
the Internal Revenue Bulletin. Publication of a notice of proposed rulemaking does not affect
the application of a TAM.

Applies to continuing action or
series of actions until material
facts change

.05 A taxpayer is not protected against retroactive modification or revocation of a TAM
involving a continuing action or a series of actions occurring after the material facts on which
the TAM is based have changed.

Does not apply retroactively under
.06 Generally, a TAM that modifies or revokes a letter ruling or another TAM or a determicertain conditions
nation letter is not applied retroactively either to the taxpayer to whom or for whom the letter
ruling or TAM or determination letter was originally issued, or to a taxpayer whose tax liability
was directly involved in such letter ruling or TAM or determination letter if—
(1) there has been no misstatement or omission of material facts;
(2) the facts at the time of the transaction are not materially different from the facts on which
the letter ruling or TAM or determination letter was based;
(3) there has been no change in the applicable law;
(4) in the case of a letter ruling, it was originally issued on a prospective or proposed transaction; and
(5) the taxpayer directly involved in the letter ruling or TAM or determination letter acted
in good faith in relying on the letter ruling or TAM or determination letter, and the retroactive

2011–1 I.R.B.

189

Sec. 18.06
January 3, 2011

modification or revocation would be to the taxpayer’s detriment. For example, the tax liability
of each employee covered by a letter ruling or TAM or determination letter relating to a pension
plan of an employer is directly involved in the letter ruling or TAM or determination letter.
However, the tax liability of members of an industry is not directly involved in a letter ruling
or TAM or determination letter issued to one of the members, and the holding in a modification
or revocation of a letter ruling or TAM or determination letter to one member of an industry
may be retroactively applied to other members of the industry. By the same reasoning, a tax
practitioner may not obtain the nonretroactive application to one client of a modification or
revocation of a letter ruling or TAM or determination letter previously issued to another client.
When a letter ruling or determination letter to a taxpayer or a TAM involving a taxpayer is
modified or revoked with retroactive effect, the notice to the taxpayer, except in fraud cases,
sets forth the grounds on which the modification or revocation is being made and the reason
why the modification or revocation is being applied retroactively.
In order for a TAM that modifies or revokes a letter ruling or another TAM or a determination letter not to be applied retroactively either to the taxpayer to whom or for whom the letter
ruling, TAM or determination letter was originally issued, or to a taxpayer whose tax liability
was directly involved in such letter ruling, TAM or determination letter, such taxpayer generally must request relief under § 7805(b) in the manner described in section 19 below.
SECTION 19. HOW MAY
RETROACTIVE EFFECT BE
LIMITED?
Commissioner has discretionary
authority under § 7805(b)

.01 Under § 7805(b) the Commissioner or the Commissioner’s delegate has the discretion
to prescribe the extent, if any, to which a TAM will be applied without retroactive effect.

Taxpayer may request
Commissioner to exercise
authority

.02 A taxpayer who has received a TAM or for whom a TAM request is pending may request
that the Commissioner, Tax Exempt and Government Entities Division, the Commissioner of
Internal Revenue’s delegate, exercise the discretionary authority under § 7805(b) to limit the
retroactive effect of any holding stated in the TAM, which may still be pending, which must
have been issued, or to limit the retroactive effect of any subsequent modification or revocation
of a TAM.

Form of request to limit
retroactivity—before an
examination

.03 When a TAM that concerns a continuing transaction is modified or revoked by, for example, a subsequent revenue ruling or final regulations, a request to limit the retroactive effect
of the modification or revocation of the TAM must be made in the form of a request for a letter ruling if submitted before examination of the return that contains the transaction that is the
subject of the request for the letter ruling. See Rev. Proc. 2011–4.

Form of request to limit
retroactivity—during course
of an examination

.04 When, during the course of an examination of a taxpayer’s return by EP or EO Examinations or consideration by the Appeals Area Director, a taxpayer is informed that EP or EO
Examinations or the Appeals Area Director recommends that a TAM be modified or revoked,
a request to limit the retroactive application of the modification or revocation of the TAM must
itself be made in the form of a request for a TAM. See sections 7, 8 and 10 of this revenue
procedure and sections 19.07 and 19.08 below.
The taxpayer must also submit a statement that the request is being made pursuant to
§ 7805(b). This statement must also indicate the relief requested and give the reasons and
arguments in support of the relief requested. It must also be accompanied by any documents
bearing on the request. The explanation should discuss the five items listed in section 18.06
of this revenue procedure as they relate to the taxpayer’s situation.
The taxpayer’s request, including the statement that the request is being made pursuant to
§ 7805(b), must be forwarded by EP or EO Examinations or the Appeals Area Director to EP
or EO Technical for consideration.

Sec. 18.06
January 3, 2011

190

2011–1 I.R.B.

Form of request to limit
retroactivity—technical advice
that does not modify or revoke
prior memorandum

.05 A request to limit the retroactive effect of a holding in a TAM that does not modify or
revoke a TAM may be made as part of that TAM request, either initially, or at any time before
the TAM is issued by EP or EO Technical. In such a case, the taxpayer must also submit a
statement in support of the application of § 7805(b), as described in section 19.04 above.

Taxpayer’s right to a conference

.06 When a request for a TAM concerns only the application of § 7805(b), the taxpayer has
the right to a conference in EP or EO Technical in accordance with the provisions of section
14 of this revenue procedure.
If the request for application of § 7805(b) is included in the request for a TAM on the substantive issues or is made before the conference of right on the substantive issues, the § 7805(b)
issues will be discussed at the taxpayer’s one conference of right.
If the request for the application of § 7805(b) is made as part of a pending TAM request
after a conference has been held on the substantive issues, and the Service determines that
there is justification for having delayed the request, then the taxpayer will have the right to
one conference of right concerning the application of § 7805(b), with the conference limited
to discussion of this issue.

Exhaustion of administrative
remedies — employee plans
determination letter requests

.07 Where the applicant has requested EP Determinations to seek a TAM on the applicability of § 7805(b) relief to a qualification issue under § 401(a) pursuant to a determination
letter request, the applicant’s administrative remedies will not be considered exhausted until
EP Technical has a reasonable time to act on the request for a TAM. See section 20 of Rev.
Proc. 2011–6.

Exhaustion of administrative
remedies — exempt organization
matters

.08 Where a TAM has been requested pursuant to an exempt organization’s request for
§ 7805(b) relief from the retroactive application of an adverse determination within the meaning of § 7428(a)(1), the exempt organization’s administrative remedies will not be considered
exhausted, within the meaning of § 7428(b)(2), until EO Technical has a reasonable time to act
on the request for a TAM.

SECTION 20. WHAT IS THE
EFFECT OF THIS REVENUE
PROCEDURE ON OTHER
DOCUMENTS?

Rev. Proc. 2010–5 is superseded.

SECTION 21. EFFECTIVE
DATE

This revenue procedure is effective January 3, 2011.

SECTION 22. PAPERWORK
REDUCTION ACT

The collections of information contained in this revenue procedure have been reviewed and
approved by the Office of Management and Budget in accordance with the Paperwork Reduction Act (44 U.S.C. § 3507) under control number 1545–1520.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number.
The collections of information in this revenue procedure are in sections 6.03, 9, 10.01, 10.05,
11.04, 11.05, 11.06, 12.02, 12.03, 13.01, 14.03, 14.10, 16.10, 16.12, 17.05, 19.03, 19.04, and
19.05. This information is required to evaluate and process the request for a TAM. In addition,
this information will be used to help the Service delete certain information from the text of the
TAM before it is made available for public inspection, as required by § 6110. The collections
of information are required to obtain a TAM. The likely respondents are businesses or other
for-profit institutions and not-for-profit institutions.
The estimated total annual reporting and/or recordkeeping burden is 1,950 hours.
The estimated annual burden per respondent/recordkeeper varies from 4 hours to 60 hours,
depending on individual circumstances, with an estimated average of 19.5 hours. The estimated number of respondents and/or recordkeepers is 100.
The estimated annual frequency of responses is one request per applicant.

2011–1 I.R.B.

191

Sec. 22
January 3, 2011

Books or records relating to a collection of information must be retained as long as their
contents may become material in the administration of any internal revenue law. Generally,
tax returns and tax return information are confidential, as required by § 6103.
DRAFTING INFORMATION

Sec. 22
January 3, 2011

The principal author of this revenue procedure is Yaguo Zhang of the Employee Plans,
Tax Exempt and Government Entities Division. For further information regarding how this
revenue procedure applies to employee plans matters, please contact the Employee Plans
Customer Assistance Service at 877–829–5500 (a toll-free number) between the hours of
8:30 am and 4:30 pm Eastern time, Monday through Friday. In the alternative, please e-mail
Mr. Zhang at [email protected]. For exempt organizations matters, please
email Mr. Jacob T. Clauson at [email protected]. Please put “Question about Rev. Proc.
2011–5” in the subject line.

192

2011–1 I.R.B.

INDEX
References are to sections in Rev. Proc. 2011–5
Additional Information
— procedure for submission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . sections 16.02, 16.05, 16.10
after conference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . section 14.10
— proposed deletions under § 6110 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . section 10.04
Chief Counsel
— jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . section 5.01
Conferences
— offered . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . sections 11.03, 14.01, 14.09
exceptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . sections 11.05, 12.04, 16.12
— pre-submission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . section 9
— scheduling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . section 14
request to limit retroactivity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . sections 14.07, 14.08, 19.06
telephone conferences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . section 14.11
Definitions
— technical advice memorandum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . section 3
Extension of Time
— to appeal decision not to request . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . section 12.02
— to disagree with statement of facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . sections 11.04, 11.05
— to schedule conference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . sections 14.03, 14.05
— to submit additional information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . sections 14.10, 16.10
Farmers’ Cooperatives. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . sections 4.02, 5.01
Letter Ruling. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . section 18.06
Mandatory Technical Advice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . sections 4.04, 7.01
Paperwork Reduction Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . section 22
Perjury Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . sections 14.10, 16.10
Power of Attorney . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . section 10.06
Public Disclosure under § 6110
— deletion statement required. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . section 10.04
exception when § 6104 applies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . section 10.03
failure to submit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . section 11.06
— notice of intention to disclose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . section 17.04
protesting deletions not made. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . sections 16.12, 17.05
Representatives. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . sections 14.08, 16.10
Retroactive Effect
— in general . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . sections 18.02–.06
on letter ruling. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . section 18.06
— request to limit retroactivity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . section 19
employee plans determination letters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . section 19.07
exempt organization matters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . section 19.08
format of request. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . sections 19.03, 19.04
scheduling conference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . sections 14.07, 14.09, 19.06

2011–1 I.R.B.

193

January 3, 2011

INDEX
References are to sections in Rev. Proc. 2011–5
Revenue Rulings
— effect on continuing transaction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . sections 18.04, 18.05
request to limit retroactivity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . sections 19.01–.05
Section 301.9100–1 Relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . section 6
Status of TAM
— to EP or EO Examinations Area or EP or EO Determinations or appeals office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . section 15.02
— to taxpayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . section 15.01
Where to Send
— additional information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . section 16.10
— technical advice request from appeals office. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . section 10.05
— technical advice request from EP or EO Examinations or EP or EO
Determinations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . section 10.05
Withdrawal of TAM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . section 13

January 3, 2011

194

2011–1 I.R.B.