Taxpayers routinely resolve their tax controversy matters without resort to litigation. Indeed, good tax professionals will often seek to avoid costly and time-consuming litigation, if possible, by utilizing various administrative avenues within the IRS including the IRS Independent Office of Appeals ("IRS Appeals"). Formed originally in 1927, IRS Appeals serves as a quasi-independent government agency staffed with the purpose of, among other things, resolving certain tax controversy matters in a manner fair to both the United States and the taxpayer.
However, IRS Appeals does not hear all tax controversy matters. Rather, it has excepted from its jurisdiction certain tax matters which it feels are not within its scope of review. Generally, this has been accomplished through a hodgepodge of administrative guidance, including publication in revenue procedures and the Internal Revenue Manual ("IRM").
On July 1, 2019, Congress codified the objectives and purposes of IRS Appeals in the Taxpayer First Act of 2019, Pub. L. No. 116-25 ("2019 TFA"). Thus, by statute, Congress provided that the IRS Appeals process "should be generally available to all taxpayers." See I.R.C. § 7803(e)(4). Because the term "generally" denotes at least some type of exclusion, many taxpayers and tax professionals were left wondering how far the new statutory right extended.
On September 13, 2022, Treasury sought to clarify this issue. Specifically, on that date, Treasury issued a notice of proposed rulemaking and a notice of public hearing on proposed rulemaking ("Proposed Regulation"). The Proposed Regulation can be found here and is the topic of this article.
New section 7803(e) of the Code discusses the statutory role of IRS Appeals. Pursuant to that statutory provision, IRS Appeals seeks "to resolve Federal tax controversies without litigation on a basis which—(A) is fair and impartial to both the Government and the taxpayer, (B) promotes a consistent application and interpretation of, and voluntary compliance with, the Federal tax laws, and (C) enhances public confidence in the integrity and efficiency of the Internal Revenue Service." See I.R.C. § 7803(e)(3). And as mentioned above, new section 7803 provided a statutory right to IRS Appeals—i.e., one that is "generally available to all taxpayers." See I.R.C. § 7803(e)(4).
Although now firmly entrenched in the Code, IRS Appeals' objectives in seeking to resolve tax controversy matters in a balanced manner has been the main purpose of IRS Appeals for some time. Historically and even today, IRS Appeals determines whether a tax controversy should be settled without resort to litigation based on "hazards of litigation." Thus, IRS Appeals will commonly look at the hazards to the government and the taxpayer in attempting to fashion a settlement of the tax matter. Because IRS Appeals will often look at the matter through the prism of a potential federal court resolution, experienced tax counsel can assist in presenting all legal arguments and pointing out to the IRS Appeals officer any evidentiary problems the government may encounter in the event the case proceeds to trial on the merits. Indeed, tax counsel may be even more important in IRS Appeals determinations because Congress blessed IRS Appeals' usage of utilizing IRS Chief Counsel tax attorneys to weigh in and provide legal and other advice on cases pending in IRS Appeals. See I.R.C. § 7803(e)(6)(B).
But Congress did not Answer What the Term "Generally" Means in Section 7803(e)(4).
Although Congress provided that the IRS Appeals process "should be generally available to all taxpayers," see I.R.C. § 7803(e)(4), it failed to clarify the proper scope of IRS Appeals jurisdiction over every matter—i.e., what IRS Appeals should and should not consider. Notably, the legislative history accompanying the 2019 TFA reinforced Congress' idea that not all tax controversy matters should fall within the scope of IRS Appeals review. See 2019 TFA Report, at 31 ("Resolution of tax controversies [through IRS Appeals procedures] is generally available to all taxpayers, subject to reasonable exceptions that the Secretary may provide.").
In the light of the 2019 TFA, Treasury has chosen to put together its laundry list of exceptions to the general right of IRS Appeals in the Proposed Regulations. As mentioned previously, many of these exceptions were historically housed in other regulations, revenue procedures, and the IRM. Now, the Proposed Regulations provide the list of exceptions in one easy-to-locate place, assuming that they are adopted later in final form. The exceptions listed in the Proposed Regulations are as follows.
The IRS is not a fan of frivolous positions—and neither is Congress. In section 7803(e)(5), there is a specific provision that permits the IRS to unilaterally waive the right of an IRS Appeals hearing in the event the taxpayer makes a "frivolous position." Thus, it is no surprise that the Proposed Regulations provide that IRS Appeals consideration is not available for an IRS determination that a position set forth by a taxpayer is frivolous. Generally, the IRS determines that a position is frivolous if the taxpayer takes a position that he or she is not subject to federal income tax laws due to moral, religious, political, constitutional, conscientious, or similar grounds.
Penalties Related to Frivolous Positions and False Information.
Federal tax law permits the IRS to impose penalties in various instances including if the taxpayer advances a frivolous position or if the taxpayer submits false information to the IRS (the latter can be a federal crime as well). See, e.g., I.R.C. §§ 6702, 6682. The Proposed Regulations provide that IRS Appeals will generally not review these penalty determinations—however, there are limited exceptions in the event the taxpayer has requested a Collection Due Process hearing and raises certain issues associated with the penalties.
Section 7623 of the Internal Revenue Code permits the IRS to award taxpayers who provide certain information to the IRS. The award may be discretionary or mandatory, depending on the particular facts and circumstances. Generally, if the IRS does not use the information to collect federal taxes, the whistleblower does not receive an award at all. Consistent with pre-2019 TFA procedures, the Proposed Regulations indicate that whistleblowers will not be afforded an IRS Appeals hearing regarding the ultimate determinations under section 7623.
Other Government Agency Determinations.
The Proposed Regulations provide that IRS Appeals will not review administrative determinations of other government agencies. For example, if the Alcohol and Tobacco Tax and Trade Bureau ("TTB") determines a person is liable for certain excise taxes under the Internal Revenue Code (e.g., Chapter 32 excise taxes relating to firearms and ammunition), the IRS will not review the TTB determination.
Taxpayer Assistance Orders.
The Taxpayer Advocate Service ("TAS") provides help to taxpayers in certain instances. Created as part of the 1998 tax relief act, the National Taxpayer Advocate ("NTA") has the ability to issue Taxpayer Assistance Orders ("TAOs") if: (i) the NTA determines the taxpayer is suffering or about to suffer a significant hardship as a result of the manner in which the internal revenue laws are being administered by the IRS; or (ii) the taxpayer meets other requirements set forth in regulations prescribed by the Secretary. See I.R.C. § 7811(a)(1). Because the TAS is set up statutorily to act independently of the IRS, the Proposed Regulations provide that any decision by TAS not to issue a TAO is not subject to IRS Appeals review.
Material to be Deleted from a Written Determination.
Generally, "the text of any written determination [i.e., PLRs, TAMs, and CCAs] and any background file document relating to such written determination shall be open to public inspection[.]" See I.R.C. § 6110(a). However, this general rule is subject to exception, including certain privacy rules under section 6103. See I.R.C. § 6110(b)(1)(2). In some instances, the IRS and the taxpayer involved get into disputes associated with how much information is released in the written determinations. Prior to the 2019 TFA, IRS Appeals generally would not resolve these types of disputes and therefore taxpayers were often required to seek judicial or other administrative help. The Proposed Regulations continue to exclude these types of matters from IRS Appeals review with a limited exception–i.e., if IRS Appeals is already considering the substantive nature of the federal tax dispute and the redaction matter is ancillary to the federal tax dispute.
Denials of Access under the Privacy Act.
The Freedom of Information Act ("FOIA") and the Privacy Act permit taxpayers to request certain information from the government, including the IRS. Similar to section 6110 disputes, taxpayers and the government often end up in disputes as to whether the government has complied in full with the FOIA and Privacy Act. In these instances, those statutes provide administrative review rights. In addition, those statutes permit the taxpayer to bring a federal lawsuit against the government. Given these rights, the Proposed Regulations continue to exclude these types of matters from IRS Appeals review.
Issues Settled by a Closing Agreement.
Section 7121 of the Code provides for a right to so-called closing agreements. Generally, such agreements after execution are binding absent fraud or malfeasance or a misrepresentation of fact. See I.R.C. § 7121(b). The Proposed Regulations provide that "any issue that is resolved by a closing agreement under section 7121 is statutorily precluded from being considered by Appeals."
OIC Rejections and Returns.
Taxpayers have various options to pay outstanding tax debts. One option is an offer in compromise based on doubt as to liability or doubt as to collection (collectively, "OICs"). Because the IRS would often sit on these OICs for some time, Congress amended section 7122 of the Code in 1998 to provide that OICs are deemed to be accepted by the IRS if the OIC is not rejected within 24 months of submission. See I.R.C. § 7122(f). However, under the IRS's interpretation of the Code, it must first accept the OIC for processing for section 7122(f) to apply. Under the Proposed Regulations, IRS Appeals will not review a taxpayer's argument that section 7122(f) should apply to an OIC on the basis that the IRS did not make an administrative determination subject to review.
Unsurprisingly, the Code provides various criminal sanctions for failure to comply with the federal tax laws. Also unsurprisingly, the Proposed Regulations provide that IRS Appeals will not review any federal tax matters with respect to a taxpayer while a criminal prosecution or a recommendation for criminal prosecution is pending unless certain approval is obtained from IRS Chief Counsel and the Department of Justice.
IRS's Passport Certification Determinations.
Section 7345 of the Code permits the IRS to take certain adverse actions against taxpayers' United States passports in the event a threshold amount of federal taxes have not been paid. The IRS details its process for certifying a seriously delinquent tax debt in the Proposed Regulations as follows:
The IRS relies on automated systems to identify every electronic taxpayer record on an individual's account with an unpaid assessed tax liability that is not statutorily excepted from the definition of a seriously delinquent tax debt or otherwise in a category excluded from certification. Once all eligible unpaid liabilities have been identified, the systems aggregate the amount of unpaid liabilities. If the total is more than the statutory threshold, the taxpayer is identified as having a seriously delinquent tax debt, and the relevant transaction code is posted to the electronic taxpayer records. The Commissioner of the IRS's Small Business/Self-Employed Division then certifies that the identified individuals each have a seriously delinquent tax debt, and the IRS sends a list of all certified individuals to the State Department. The taxpayer receives Notice CP508C, Notice of Certification of Your Seriously Delinquent Tax Debt to the State Department, informing the taxpayer to contact the IRS at the phone number in that notice to request reversal of the certification if the taxpayer believes the certification is erroneous.
Because of the above "automated nature" of the adverse determination and section 7345's provision of the ability to file a lawsuit against the government regarding the adverse determination, the Proposed Regulations provide that IRS Appeals will not consider section 7345 passport certification matters.
Certain CDP Matters.
Section 6320 and section 6330 provide taxpayers with the ability to file for a Collection Due Process ("CDP") hearing regarding a notice of federal tax lien filing or a proposed levy action against the taxpayer. If timely filed, the request for a CDP hearing permits taxpayers to raise certain issues associated with the collection action. However, certain matters are precluded from IRS Appeals review—generally, those issues that have been previously determined by the IRS in prior determination matters. The Proposed Regulations provide that IRS Appeals will not review "any issue that is statutorily prohibited from being considered during a CDP hearing[.]"
Other Government Agency has Settlement Authority.
In some instances, federal tax law provides another government agency with the sole authority to settle a federal tax matter. For example, the Department of Justice has authority to resolve matters in cases before certain federal courts. Because IRS Appeals lacks the authority to settle these matters, the Proposed Regulations commonsensically state that such matters are outside the scope of IRS Appeals review.
Technical Advice Memoranda.
Technical Advice Memoranda are IRS Chief Counsel memoranda that respond to requests for assistance on technical or procedural legal questions involving the interpretation and proper application of legal authority submitted in accordance with applicable Revenue Procedures. TAMs may be issued in various circumstances, including on matters related to tax-exempt status, an entity's classification as a foundation, the initial or continuing determination of employee plans, or a determining involving an obligation and the issuer of an obligation under section 103 of the Code. If a TAM makes an adverse determination regarding any of these matters, the Proposed Regulations provide that IRS Appeals will not re-review those determinations (although "Appeals may request that the Associate Office reconsider the TAM.").
TAMs in Docketed Cases.
The Proposed Regulations also provide that IRS Appeals review is not available "for any case docketed in the Tax Court if the notice of deficiency, notice of liability, or final adverse determination letter is based upon an Associate Office TAM" involving the above-listed adverse determinations.
Taxpayers can sometimes request private letter rulings ("PLRs") regarding the tax effects of various transactions. If the taxpayer complies with the requirements for making a PLR request, the IRS issues the PLR to the taxpayer. See Proposed Regulations ("A letter ruling interprets the tax laws and applies them to the taxpayer's specific facts." According to the Proposed Regulations, the PLR "program is designed . . . to provide taxpayers with information regarding whether the IRS will accept a position to be taken on the taxpayer's return." Thus, the "letter ruling program is not designed to present a position of the IRS for Appeals to consider." A limited exception is provided under the Proposed Regulations if the subject of the letter ruling is at issue.
Challenges to the Constitutionality of a Statute.
The Proposed Regulations provide that IRS Appeals will generally not consider arguments related to the constitutionality of a statute. The sole exception is if "there is an unreviewable decision from a Federal court holding that the cited statute is unconstitutional." Treasury provides its rationale for this rule in the Proposed Regulations as follows:
Proposed § 301.7803-2(c)(18) provides that Appeals consideration is not available for any issue based on a taxpayer's argument that a statute violates the United States Constitution unless there is an unreviewable decision from a Federal court holding that the cited statute is unconstitutional. An argument that a statute violates the United States Constitution includes an argument that a statute is unconstitutional on its face or as applied to a specific person. For purposes of the proposed regulations, an unreviewable decision is a decision that can no longer be appealed to any Federal court because all appeals in a case have been exhausted or the time to appeal has expired and no appeal was filed, such as a final determination under section 7481 of the Code.
[IRS] Appeals is not an appropriate forum to consider constitutional challenges to Federal tax statutes. Whether the actions taken to enact a Federal tax statute comport with the Constitution is initially determined by Congress and the President. Questions regarding the constitutionality of a duly enacted statute are determinations of general applicability resolved at the highest levels of the Treasury Department and the IRS, in consultation with the Office of Legal Counsel of the Department of Justice. Such a determination is not appropriate for Appeals to consider.
In addition, one of the statutory duties of Appeals is to resolve cases on a basis that 'promotes a consistent application and interpretation of, and voluntary compliance with, the Federal tax laws.' See section 7803(e)(3)(B). A Federal court's unreviewable decision is a determination by the judicial branch on the merits of the constitutional challenge that may reject the determinations made by Congress, the President, the Treasury Department, or the IRS with regard to the constitutionality of a Federal tax statute, thereby providing a basis for Appeals to consider constitutional challenges to the Federal tax statute that is the subject of the taxpayer's dispute. Unlike a Federal court's unreviewable decision, which is publicly available to all taxpayers, an Appeals resolution relates only to a single Federal tax controversy and, by law, the outcome generally can only be communicated by the IRS to the taxpayer. Any constitutional determination with respect to a Federal tax law should be communicated and applied consistently to all taxpayers. Accordingly, the Treasury Department and the IRS believe that it would be inappropriate for Appeals to consider challenges to the constitutionality of a statute in the absence of an unreviewable decision from a Federal court holding the statute to be unconstitutional.
Challenges Alleging that a Treasury Regulation is Invalid.
The Proposed Regulations also provide that IRS Appeals will not entertain arguments that a Treasury Regulation is invalid. The sole exception—similar to the above exception—is if there "is an unreviewable decision from a Federal court invalidating the regulation as a whole or the provision in the regulation that the taxpayer is challenging." The rationale for this rule, according to the Proposed Regulations, is:
Proposed § 301.7803-2(c)(19) provides that Appeals consideration is not available for any issue based on a taxpayer's argument that a Treasury regulation is invalid unless there is an unreviewable decision from a Federal court invalidating the regulation as a whole or the provision in the regulation that the taxpayer is challenging. As explained previously, an unreviewable decision is a decision that can no longer be appealed to any Federal court. As with the exception for constitutional challenges, this exception does not preclude Appeals from considering a Federal tax controversy based on other arguments. For example, Appeals may consider whether the Treasury regulation applies to a taxpayer's facts and circumstances and resolve the Federal tax controversy by weighing the likelihood a court would agree with the position of the taxpayer or the Government.
Questions regarding the validity of a Treasury regulation are determinations of general applicability resolved at the highest levels of the Treasury Department and the IRS. Sections 7801 through 7805 of the Code vest with the Secretary, the Commissioner, and other Treasury Department officials the authority to administer the internal revenue laws, including the power to promulgate regulations. Pursuant to these provisions of the Code and 31 U.S.C. 321(b), the delegated authority to prescribe Treasury regulations is held by the Assistant Secretary of the Treasury for Tax Policy (Assistant Secretary for Tax Policy) and the General Counsel for the Department of the Treasury (Treasury Department General Counsel). See Treasury Directive 18-02 (9-4-1986) and Treasury Order 107-03 (01-30-1978). The process of reviewing and approving Treasury regulations before they are published is extensive and involves senior officials in numerous offices within the Treasury Department, the IRS, and sometimes other Federal agencies. See IRM Part 32.1 (Chief Counsel Regulation Handbook) for a description of the process for drafting regulations. Before a regulation is published in the Federal Register it must be approved by the Associate Chief Counsel responsible for drafting the regulation; a Deputy Chief Counsel; the Deputy Commissioner for Services and Enforcement; multiple individuals in the Treasury Department's Office of Tax Policy, including the Assistant Secretary for Tax Policy; the Treasury Department's Office of General Counsel; the Office of the Executive Secretary; and, in some cases, the Secretary of the Treasury.
In light of the extensive review and approval procedures at senior levels in both the Treasury Department and the IRS, we believe that it would be inappropriate for Appeals to consider arguments regarding the validity of Treasury regulations in the absence of an unreviewable Federal judicial decision holding the regulation invalid. In the absence of an unreviewable Federal judicial decision holding a Treasury regulation invalid, Appeals consideration of such arguments would also be inconsistent with the delegation of the Secretary's authority to prescribe regulations to the Assistant Secretary for Tax Policy and to the Treasury Department General Counsel. Furthermore, unlike the authority to apply the tax laws to a specific set of facts, which, for example, is redelegated to the examination function within the IRS to facilitate examination of a particular taxpayer, the authority and function to promulgate regulations rests with the Assistant Secretary for Tax Policy and the Treasury Department General Counsel. Such a determination would not be appropriate for Appeals to consider until there is an unreviewable decision from a Federal court invalidating the regulation as a whole or the provision in the regulation that the taxpayer is challenging.
Treasury regulations are generally submitted for notice and comment under the Administrative Procedure Act and have the force and effect of law once a Treasury decision containing such regulations is published in the Federal Register . Consequently, Treasury regulations are binding on the Treasury Department, the IRS and the public, including all Treasury Department and IRS employees. This means that Treasury Department and IRS employees must follow the regulations until they are revised, removed through the notice and comment process, or invalidated by subsequent legislation or an unreviewable decision of a Federal court. As an office within the Treasury Department and the IRS, these requirements apply to Appeals and its employees.
In addition, as with constitutional challenges to a statute, a determination with respect to the validity of a regulation should be communicated and applied consistently to all taxpayers. Unlike a non-public Appeals settlement, an unreviewable decision by a Federal court is available to all taxpayers and the IRS regarding the validity of a Treasury regulation. A settlement before Appeals is specific to a taxpayer and cannot be disclosed by the IRS unless an exception to section 6103 of the Code applies. Furthermore, unlike most Appeals analysis, which weigh litigation hazards in applying the law to specific facts, considering the validity of a regulation does not involve taxpayer specific facts. A Federal court's unreviewable decision is a determination by the judicial branch on the merits of the validity challenge that may reject the determinations made by other levels of the Treasury Department or the IRS with regard to the validity of a Treasury regulation, thereby providing a basis for Appeals to consider a regulation's validity. Accordingly, the Treasury Department and the IRS believe that it would be inappropriate for Appeals to consider challenges to the validity of a Treasury regulation unless a Federal court has rendered an unreviewable decision holding that the regulation is invalid.
Challenges Alleging that a Notice or Revenue Procedure is Invalid.
Consistent with the above two exceptions, the Proposed Regulations further provide that IRS Appeals review is not granted with respect to challenges by taxpayers that a notice or revenue procedure is invalid. The same exception—i.e., an unreviewable decision has been made otherwise—applies also to this exception. The Proposed Regulations rationale for this rule is as follows:
Similar to Treasury regulations, the process for drafting and publishing notices and revenue procedures is extensive. See IRM Part 32.2 (Chief Counsel Publication Handbook) for a description of the process for drafting published guidance, including notices and revenue procedures. Notices and revenue procedures are approved within the Treasury Department's Office of Tax Policy, involve numerous policy and implementation determinations, and involve the coordination and agreement of many offices within the Treasury Department, the IRS, and sometimes other Federal agencies. The approval process includes consideration of administrative law requirements applicable to such guidance. Furthermore, unlike the application of the tax law to a specific set of facts and circumstances during, for example, an examination, procedural determinations regarding notices and revenue procedures must be approved at high levels within the Treasury Department and are not specific to the facts of a particular case. Ultimately, whether an IRS notice or revenue procedure is invalid is a determination of general applicability resolved at the highest levels of the Treasury Department and the IRS. Such a determination thus would not be appropriate for Appeals to consider. Furthermore, any determination regarding whether a notice or revenue procedure failed to comply with administrative law requirements, such as notice and comment under 5 U.S.C. 553, should be communicated and applied consistently. As with constitutional and regulation validity challenges, an unreviewable decision of a Federal court is the appropriate means of making information accessible to all taxpayers and the IRS regarding whether a notice or revenue procedure was prescribed in accordance with applicable Federal law. A settlement before Appeals is specific to a taxpayer and cannot be made available to other taxpayers. A Federal court's unreviewable decision is a determination by the judicial branch on the merits of the validity challenge that may reject the determinations made by other levels of the Treasury Department or the IRS with regard to the validity of an IRS notice or revenue procedure, thereby providing a basis for Appeals to consider the validity of an IRS notice or revenue procedure. Accordingly, the Treasury Department and the IRS believe that it would be inappropriate for Appeals to consider challenges alleging that a notice or revenue procedure is procedurally invalid unless a Federal court has rendered an unreviewable decision holding the notice or revenue procedure to be invalid.
Case or Issue Designated for Litigation or Withheld from IRS Appeals.
In limited instances, the IRS and IRS Chief Counsel may determine that it would prefer to litigate the matter rather than settle it. For example, IRS Chief Counsel will withhold from IRS Appeals a Tax Court case if it determines that referral is not in the best interest of sound tax administration. This may occur if the issue is ubiquitous in other Tax Court cases, and IRS Chief Counsel would prefer to have a published decision from the Tax Court on the issue. The Proposed Regulations recognize that "[u]nlike an Appeals resolution, a judicial decision in designated or withheld cases will provide notice to all taxpayers of any development in the law, leading to the early resolution of issues and conserving IRS and taxpayer resources." Therefore, the Proposed Regulations except from IRS Appeals review these matters.
Appeals Issued the Determination that is the Basis of the Tax Court's Jurisdiction.
Historically, IRS Chief Counsel would not refer a docketed case to IRS Appeals if IRS Appeals previously reviewed the case and issued the correspondence with its determination. This, of course, made sense because IRS Appeals has rendered its final determination, and a taxpayer's request for a second IRS Appeals hearing would be duplicative and would eat up administrative resources. Accordingly, the Proposed Regulations provide that IRS Appeals will not review any matters in which it has issued the final determination.
IRS Appeals Consideration is a Prerequisite to the Tax Court's Jurisdiction.
Certain requests for relief require a taxpayer to exhaust all avenues of administrative review. For example, taxpayers are precluded from requesting judicial review of certain declaratory judgment forms of relief unless the taxpayer "has exhausted administrative remedies available to it within the Internal Revenue Service." See I.R.C. § 7428(b)(2). If the taxpayer fails to request IRS Appeals review prior to seeking a judicial resolution, the Proposed Regulations provide that IRS Appeals will not review the matter.
Because the IRS Office of Professional Responsibility reviews the Certified Professional Employer Organization ("CPEO") program, the Proposed Regulations provide that IRS Appeals will not review any determination to deny or revoke a CPEO certification.
Because the Proposed Regulations are only in proposed form, tax professionals can expect some revisions and modifications to the regulations in their current form. Indeed, the notice and comment period is open until at least November 14, 2022, with a potential public hearing scheduled for November 29, 2022. Nevertheless, tax professionals should expect that most—if not all—of the exceptions mentioned in this article will find their way into final regulations. Therefore, tax professionals who routinely represent taxpayers in IRS Appeals should start to gain some familiarity with the exceptions.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.