United States: Appeals Update: Exam's Attendance And A Return To Face-To-Face Meetings

In light of a recent pilot program encouraging the inclusion of Exam members in Appeals conferences, as well as an indication that Appeals conferences will return to being face-to-face meetings, taxpayers may want to consider whether Appeals remains the best forum to resolve unagreed issues.

The IRS Office of Appeals (Appeals) has implemented an initiative whereby some Appeals Team Case Leaders (ATCLs) will hold Appeals conferences with representatives from Compliance Examination teams (Exam) in attendance. Although this remains a pilot program, it is yet another change to the Appeals procedures that may make settlement more difficult and could bring Appeals' independence into question.


The Appeals function aims to resolve tax controversies on a basis that is fair and impartial to both the IRS and the taxpayer. Historically, during an Appeals conference, Exam would present its case to Appeals first and then have no further involvement in discussions between the taxpayer and Appeals. After Exam finished its presentation and left the conference, the taxpayer would present its case and discuss potential settlements with Appeals. This process is no longer necessarily the norm.

The Appeals Judicial Approach and Culture procedures, which were phased in beginning in 2012, began to break down the barriers between Exam and Appeals by limiting taxpayers' ability to present new information to Appeals and increasing the possibility that Appeals would return a case to Exam for further consideration. Under the new pilot program, having Exam actively participate in the Appeals process could be yet another challenge to reaching a successful resolution with Appeals.

Pilot Program

In October 2016, the IRS revised the Internal Revenue Manual to provide Appeals with the discretion to invite Exam members to Appeals conferences. In May, the IRS announced a new initiative whereby approximately one-third of ATCLs would invite Exam members to attend Appeals conferences and stay through the taxpayer's presentation. According to the IRS, this initiative is intended to allow the parties to listen to each other's presentations and give the ATCL the opportunity to clarify facts and legal arguments that have not otherwise been clearly outlined. Appeals and the taxpayer would continue to discuss potential settlements without the involvement of Exam.

Recently, the IRS released a Frequently Asked Questions (FAQ) on this new initiative. The IRS announced that the initiative's goals are to improve conference efficiency, reach case resolution sooner, and offer earlier certainty for issues in future years. The FAQ includes the following points:

  • Taxpayers may not opt out of the initiative, but Exam may decline to attend a conference.
  • Exam may not raise new issues during the Appeals conference.
  • The initiative is different than the Rapid Appeals Process (RAP) because Exam will not be involved with settlement discussions. The ATCL will decide the appropriate time to engage in settlement discussions.
  • Only Exam team members involved in unagreed issues that are the subject of the Appeals conference will participate.

As part of the initiative, some ATCLs have reached out to taxpayers with additional information preceding an opening conference:

  • Taxpayers have been encouraged to work with Exam before the first meeting to reach agreement on factual and legal differences in order to narrow the scope of the dispute.
  • Taxpayers have been informed that they should be prepared to work toward a settlement during a single conference.
  • During the meeting, both Exam and the taxpayer are allowed to ask questions of the other side during the presentations.
  • Appeals is there to facilitate communication between the taxpayer and Exam and to assess the strengths and weaknesses of both sides, but Appeals remains the decision-maker.

Considerations for Taxpayers and Practitioners

This new process raises concerns for taxpayers and practitioners. Typically, by the time an issue reaches Appeals, the taxpayer and Exam already have tried to reach resolution and have been unsuccessful in doing so. As such, it is unclear how having Appeals attempt to mediate the issue will increase the likelihood that Exam and the taxpayer will reach an agreement, or why allowing both parties to participate in the conference will lead to the stated goals of improved efficiency or earlier certainty.

Further, even though Exam is supposed to be excluded from any settlement discussions, the line between case presentation and settlement often is not black and white. It remains to be seen whether this new procedure will morph into a process akin to Fast Track where Appeals serves as a mediator between Exam and the taxpayer.

Another concern is whether Exam will issue post-protest brief information document requests (IDRs)—as is becoming a common occurrence—to prepare for its opportunity to advocate its position as part of the Appeals process. There also is a concern that Exam may request—after hearing the taxpayer's arguments—that issues that were not fully developed be sent back to Exam. Far from leading to quicker case resolution, this would lengthen the settlement process and increase the expense to the taxpayer.

Finally, given the emphasis on resolving unagreed issues in the course of one meeting, the new procedures raise concerns that taxpayers are essentially being pushed toward RAP. Under RAP, the Appeals opening conference is a working conference to resolve issues in a single meeting using fast-track techniques. Given the significant constraints on Appeals' resources, this may be the ultimate goal, but not every issue is ripe for resolution in a single meeting. Factually or legally complex issues often present a time-consuming challenge that can be difficult to quickly resolve with Appeals.

A Return to Face-to-Face Conferences

This is not the first change that has been proposed for the Appeals process in the last year. About a year ago, it appeared that ATCLs would lose their authority to settle cases. After significant feedback, Appeals ultimately decided to allow ATCLs to retain their settlement authority. Appeals also moved away from face-to-face conferences in favor of virtual or telephonic meetings. In September, however, Appeals announced that it would be returning to in-person conferences.


Given that Appeals has been proposing new procedures and then modifying them based upon feedback, it is possible that this pilot program will be short-lived. Having both Exam and the taxpayer playing an active role in the Appeals conference may not be as efficient or productive as Appeals is anticipating. Nonetheless, taxpayers may want to consider whether Appeals remains the best forum to resolve any unagreed issues.   

This article is provided as a general informational service and it should not be construed as imparting legal advice on any specific matter.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.