As part of its continuing guidance to taxpayers and practitioners about how its resumption of activities following the government shutdown is impacting pending matters, the Internal Revenue Service has published Frequently Asked Questions (entitled “Appeals Resumption FAQs“) regarding cases pending in IRS Appeals.  These FAQs provide information regarding the shutdown’s effect on Appeals hearings, Appeals correspondence, and communications with Appeals Officers.  The text of those FAQs follows:

1. How soon will Appeals hearings resume?

Once Appeals Officers have reviewed mail, voice messages, the status of their assigned inventory and completed administrative tasks to restart operations, they will begin to re-establish contact and schedule hearings. This process will take several business days to complete.

2. My Appeals hearing was cancelled prior to the shutdown. When will it be rescheduled?

After completing the assessment of their assigned inventory, your Appeals Officer will reach out to you to reschedule your hearing.  It will take several business days before your Appeals Officer is able to reach out to their assigned taxpayers.

3. My Appeals hearing was scheduled for one of the days when the government was shutdown.  I have not heard from my Appeals Officer.  What should I do?

Since your Appeals Officer was furloughed during the shutdown, they were prohibited from performing their duties. Once your Appeals Officer has completed a review of their inventory, they will reach out to you to reschedule your hearing. This process will take several business days to complete.

4. I left a message for my Appeals Officer but have not received a call back.

Since your Appeals Officer was furloughed during the shutdown, they were prohibited from performing their duties. Upon their return, your Appeals Officer will assess the status of their inventory.  Your Appeals Officer will retrieve their messages and return calls, but it may take several business days before he or she is able to reach out. If you have not heard after several days, place another call to the Appeals Officer.

5. When can I call my Appeals Officer to discuss my case?

Each Appeals Officer will reach out to their assigned taxpayers after they review and assess the status of their assigned inventory.  This may take several days.  In the meantime, you can reach out to your Appeals Officer during normal business hours.

6. I received a correspondence from my Appeals Officer giving me a deadline to respond.  I was unable to respond due to the shutdown. How should I proceed?

If you have additional information, you should send the information to your Appeals Officer immediately and call them to discuss options.  Your Appeals Officer will also be reaching out to you to re-establish contact before they take additional actions on your case.  At that time, they will discuss any information still needed.  It will take several days for your Appeals Officer to contact all of their assigned taxpayers.

7. I received a Statutory Notice of Deficiency during the shutdown.  What should I do?

On cases where Appeals issued a Statutory Notice of Deficiency, the notice sets forth the time parameters you have to petition the Tax Court if you want to protest the adjustments. Please review this carefully.  If you agree with the adjustments, you can sign and return it to the Appeals Officer. If you feel you received the Notice of Deficiency in error, you should contact the Appeals Officer immediately.

8. I requested an Appeals hearing but have not heard from Appeals.

If you submitted a request for Appeals consideration on your case, contact the IRS office that offered the Appeals request for an update on the status. If the IRS office states that your request was sent to the Office of Appeals and you have not received anything from Appeals after 60 days after the government has reopened, call Appeals Customer Service at 559-233-1267.

9. I filed a petition with the Tax Court during the government shutdown. What happens next?

We recognize it will take time for the Tax Court to work through its backlog of petitions needed to be served on the IRS. You should check with the Tax Court’s website for the latest updates and news from the court.

10. I received a Form 872, Consent to Extend the Time to Assess Tax, from my Appeals Officer. It was mailed prior to the shutdown, but I received it after the shutdown started.  What are my options?

The Form 872, Consent to Extend the Time to Assess Tax, was solicited to allow additional time for you and your Appeals Officer to address issues still open in the Appeals hearing. Included with Form 872 you also received Publication 1035.  Publication 1035 provides guidance and explains your options. If you have additional questions beyond those in the publication, you should contact your assigned Appeals Officer.  Your Appeals Officer will also be reaching out to you to discuss the process, but this may take several business days to accomplish.

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The Internal Revenue Service’s Office of Appeals has announced that it will soon unveil a pilot project affording taxpayers and their representatives the opportunity to have a “virtual” face-to-face option for taxpayer conferences. Currently, taxpayers requesting an Appeals conference have the opportunity to conduct such conference by telephone, in person (referred to as a “face-to-face” conference), or virtually through videoconference technology which is available at only a limited number of IRS offices. Each year, the Office of Appeals hears appeals of more than 100,000 taxpayers attempting to resolve their tax disputes without going to court.

In our experience, “face-to-face” conferences with Appeals are far superior to telephonic conferences and are more likely to facilitate settlements. As a result, we almost always request an in-person meeting with Appeals. However, as of October 1, 2016, the IRS revised the Internal Revenue Manual provision governing Appeals conferences to instruct Appeals Officers to hold conferences by telephone in nearly all cases. This decision was no doubt motivated by the dramatic budget cuts that the IRS has endured for the past several years and its corresponding dwindling workforce. The agency’s announcement that “virtual” conferences will be offered is apparently its attempt to meaningfully restore the “face-to-face” (albeit virtual) option for taxpayer conferences.

Under the revised Internal Revenue Manual provision, a telephonic Appeals conference shall be held unless the following criteria are satisfied:

  • There are substantial books and records to review that cannot be easily referenced with page numbers or indices;
  • The Appeals Officer cannot judge the credibility of the taxpayer’s oral testimony without an in-person conference;
  • The taxpayer has special needs (e.g. disability, hearing impairment) that can only be accommodated with an in-person conference;
  • There are numerous conference participants (e.g., witnesses) that create a risk of an unauthorized disclosure or breach of confidentiality;
  • An alternative conference procedure (e.g., Post Appeals Mediation (PAM) or Rapid Appeals Process (RAP)) involving separate caucuses will be used;
  • Another IRM section specific to the workstream calls for an in-person conference.

I.R.M. § 8.6.1.4.1.

According to the IRS announcement, the “virtual” conference option will utilize a secure, web-based screen-sharing platform to connect with taxpayers from anywhere they have internet access. The IRS expects it to be especially useful for taxpayers located far from an IRS Appeals office.

“Taxpayers who choose the web-based option will be able to get face-to-face service remotely,” said IRS Chief, Appeals Donna Hansberry. “In the future, the technology may give taxpayers greater options in engaging with Appeals and could allow us the flexibility to serve taxpayers virtually from any location using mobile devices or computers.” “We hope this is one more option to enable IRS employees to provide timely, efficient and effective service to taxpayers,” said Hansberry. The IRS plans to start the pilot project on August 1, 2017 and will assess the results, including taxpayer satisfaction with the technology.

Effective November 18, 2016, Revenue Procedure 2016-57 established the Small Business/Self-Employed (“SB/SE”) Fast Track Mediation Collection (“FTMC”) program to allow taxpayers and the IRS to resolve disputes quickly with an Office of Appeals mediator serving as a neutral third party. The FTMC obsoletes the SB/SE Fast Track Mediation program (“FTM”) (as outlined in Revenue Procedure 2003-41) and will enable taxpayers to settle offer-in-compromise and trust recovery penalty issues quickly.

Participants in the FTM program were taxpayers whose cases were being worked in either Examination or Collection and provided taxpayers the opportunity to expedite resolution of their cases by mediating their disputes with an Appeals mediator acting as a neutral party. However, taxpayer requests for FTM have been infrequent throughout the life of the program and became increasingly so after Fast Track Settlement (“FTS”) was implemented. FTS is only available to taxpayers in Examination and does not provide an expedited Appeals alternative dispute resolution opportunity for taxpayers in Collection.

According to the revenue procedure, the FTMC was created to ensure that taxpayers involved in disputes with Collection will be afforded an early opportunity for expedited resolution of their cases via mediation. The FTMC can only be used when all other collection issues involving the taxpayer have been resolved. The IRS Appeals mediator does not have settlement authority in the FTMC proceeding and cannot render a decision regard any issue in dispute.

Case Eligibility

Appropriate cases for FTMC include:

  • Issues involving the value of a taxpayer’s assets
  • The amount of dissipated assets that should be included in the overall determination of reasonable collection potential
  • Whether the taxpayer meets the criteria for deviation from national and/or local expense standards
  • Determination of a taxpayer’s proportionate interest in jointly held assets
  • Projections of future income based on calculations other than current income
  • The calculation of a taxpayer’s future ability to pay when living expenses are shared with a non-liable person
  • Doubt as to liability cases worked by Collection
  • Other factual determinations, such as whether a taxpayer’s contributions into a retirement savings account are discretionary or mandatory as a condition of employment

Inappropriate cases for FTMC include:

  • Issues requiring assessment of the hazards of litigation or use of the Appeals mediator’s delegated settlement authority
  • Cases referred to the Department of Justice
  • Cases worked at an SB/SE Campus site
  • Collection Appeals Program cases
  • Collection Due Process cases
  • Collection cases in which the taxpayer has failed to respond to IRS communications or failed to submit documentation to Collection for consideration

Application Process

A request for participation in FTMC should be initiated after an issue has been fully developed and before Collection has made a final determination regarding the issue. A Form 13369, Agreement to Mediate, must be signed by the taxpayer and collection group manager to initiate proceedings. The FTMC allows either party to withdraw at any time before reaching an agreement on the issues, and the proceedings will be held at a location mutually agreed to by both parties.

Mediation Session

Both the taxpayer and Collection will be given ample opportunity to present their respective positions. The Appeals mediator may also ask either party for additional information if necessary for a full understanding of the issues being mediated. If it is determined that meaningful progress toward resolution of the issues has stopped, the Appeals mediator may terminate the mediation session. In addition, the Appeals mediator may, but is not required to, terminate or postpone the session if: (a) either party presents new information or new issues during the mediation session; (b) the taxpayer wishes to submit a substantial amount of additional documentary information; (c) the taxpayer wishes to present new witnesses, including experts; or (d) for other good cause.

The Appeals mediator may recommend to the parties a possible resolution of one or all of the issues considered in FTMC based on the Appeals mediator’s analysis of the issues. Any recommendation made by the Appeals mediator does not bind the parties and is not a decision regarding any issue in dispute.

At the conclusion of the mediation session, the Appeals mediator will prepare a brief written report by completing Form 13370, Fast Track Mediator’s Report. A copy of the report is provided to the taxpayer and the Collection Group Manager at the end of the mediation session. If the parties resolve any of the disputed issues during the mediation session, Collection will secure the appropriate closing documents from the taxpayer and close the case. If the parties do not reach an agreement on a mediated issue, FTMC does not eliminate the taxpayer’s opportunity to request a hearing before Appeals through the traditional Appeals process.

In October 2016, the IRS declared that in-person conferences will no longer be the default method for Appeals conferences. The IRS also made several key Collection and Examination policy clarifications to ensure that Compliance functions as the finders of fact and Appeals does not take investigative actions.

Appeals Conferences

Historically, Appeals conferences have, for the most part, been conducted in-person. In an attempt to make the most of its limited resources, IRS Appeals conferences will, as of October 1, 2016, be conducted over the phone unless the taxpayer requests an in-person meeting. The revised procedures in Internal Revenue Manual (“IRM”) 8.6.1 provide that if the taxpayer requests an in-person meeting, it must be approved by the Appeals team manager and should be limited to certain situations including when:

  • There are substantial books and records to review that cannot be easily referenced with page numbers or indices.
  • The Appeals Technical Employee cannot judge the credibility of the taxpayer’s oral testimony without an in-person conference.
  • The taxpayer has special needs (e.g., disability, hearing impairment) that can only be accommodated with an in-person conference.
  • There are numerous conference participants (e.g., witnesses) that create a risk of an unauthorized disclosure or breach of confidentiality.
  • An alternative conference procedure (e.g., Post Appeals Mediation or Rapid Appeals Process) involving separate caucuses will be used.

In addition, language was added to IRM 8.6.1.4.4 that permits Appeals to invite IRS Chief Counsel and/or Compliance (which includes Examination, Collections, and Accounts Management) to the Appeals conference. However, the IRM notes that the prohibition against ex parte communications must not be violated and thus Appeals still may not communicate with IRS Chief Counsel or Compliance without the taxpayer also being present.

Key Collection Policy Clarifications

The IRS made some key collection policy clarifications to ensure that Compliance functions as the finders of fact and Appeals does not take investigative actions. These policies ensure taxpayers have a true appeal right so that Appeals reviews a final determination made by Compliance. The key collection policy clarifications include:

Appeals will not take investigative actions with respect to financial information provided by taxpayers. Financial information that warrants investigation will be sent to Collection.

  • Appeals will only consider assets that were documented by Collection or introduced by the taxpayer.
  • Appeals will not make recommendations to file Notices of Federal Tax Liens.
  • All Offers in Compromise submitted to Collection Due Process or Equivalent Hearings will be reviewed by Collection for a preliminary recommendation or acceptance.
  • In non-Collection Due Process or Offers in Compromise cases, Appeals will only determine the acceptability of the Offer in Compromise and will not offer other collection alternatives.

Key Collection Examination Policy Clarifications

The IRS also made some key examination policy clarifications that are effective October 3, 2016 and apply to docketed examination cases where a taxpayer submits new information or evidence or raises a new issue. The key examination policy clarifications include:

  • Appeals will attempt to settle a case based on the factual hazards when not fully developed by Examination (i.e. cases will not be sent back to Examination for further development).
  • Appeals will not raise new issues or reopen issues on which the taxpayer and Examination have reached an agreement.
  • Appeals will return non-docketed cases to Examination when a taxpayer submits new information or evidence or raises a new issue that merits investigation or additional analysis.
  • Appeals will retain jurisdiction of docketed cases when a taxpayer submits new information or evidence or raises a new issue that merits investigation or additional analysis, but will request assistance from Examination in performing those functions.
  • For most work streams, Appeals will engage Examination for review and comment when a taxpayer raises a relevant new theory or alternative legal argument.

What Taxpayers Need to Know

Taxpayers should fully cooperate with the IRS’s compliance function during the development of their cases so that their file is complete when it goes to Appeals. When a taxpayer appeals a compliance function’s decision, the taxpayer should specifically identify in their protest the items in dispute. If a taxpayer introduces new information in Appeals, it may result in Appeals returning the case to the compliance function. The policy changes discussed above ensure that taxpayers have an opportunity for an impartial appeal by ensuring Appeals reviews a final determination made by the compliance function. The aim of the policy clarifications is to improve the appeals process by strengthening a taxpayer’s right to an independent appeal.