us-irs-revenue-rulings-irb-2009-32-pdf•Internal Revenue Bulletin 2009-32 (PDF rendition): IRS Revenue Rulings
Internal Revenue Bulletin 2009-32 (PDF rendition): IRS Revenue Rulings
us-irs-revenue-rulings-irb-2009-32-pdfInternal Revenue Bulletin 2009-32 (PDF rendition): IRS Revenue RulingsGuidance
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Bulletin No. 200 9-32 August 10, 2009 HIGHLIGHTS OF THIS ISSUE These synopses are intended only as aids to the reader in identifying the subject matter covered. They may not be relied upon as authoritative interpretations. INCOME TAX Rev. Rul. 2009–23, page 177. Certain cost-sharing payments; Forest Health Protection Program.This ruling states that the Forest Health Protection Program (FHPP) is substantially similar to the type of programs described in section 126(a)(1) through (8) of the Code within the meaning of section 126(a)(9). Consequently, all or a portion of cost-share payments received under the FHPP is eligible for exclusion from gross income to the extent permitted by section 126. Notice 2009–60, page 181. This notice invites public comments regarding the Service’s review of issues concerning tax return preparers. Notice 2009–61, page 181. This notice informs market participants that for purposes of sections 871, 881, 1441, and 1442 of the Code, Treasury and the Service are considering issuing future guidance regarding the proper treatment of Fails Charges and that the Service will not challenge a position adopted by a taxpayer or withholding agentthataFailsChargeisnotsubjecttoaU.S.gross-ba- sis taxation if that Fails Charge is paid prior to December 31, 2010, unless guidance is issued before that date. EXEMPT ORGANIZATIONS T.D. 9454, page 178. Final regulations under section 6033 of the Code describes the time and manner in which certain tax-exempt organizations not currently required to file an annual information return under section 6033(a)(1) are required to submit an annual electronic notification (e-Postcard) including certain information required by section 6033(i)(1)(A) through (F). ADMINISTRATIVE T.D. 9454, page 178. Final regulations under section 6033 of the Code describes the time and manner in which certain tax-exempt organizations not currently required to file an annual information return under section 6033(a)(1) are required to submit an annual electronic notification (e-Postcard) including certain information required by section 6033(i)(1)(A) through (F). REG–152166–05, page 183. This document withdraws the notice of proposed rulemaking published on April 19, 1996, in the Federal Register and con- tains proposed regulations relating to the issuance of Taxpayer Assistance Orders. Finding Lists begin on page ii. The IRS Mission Provide Americ a’s taxpayers top quality service by helping them understand an d meet their tax responsibilities and by applying the tax law with integrity and fairness to all. Introduction The Internal Revenue Bulletin is the authoritative instrument of the Commissioner of Internal Revenue for announcing official rulings and procedures of the Internal Revenue Service and for publishing Treasury Decisions, Executive Orders, Tax Conven- tions, legislation, court decisions, and other items of general interest. It is published weekly and may be obtained from the Superintendent of Documents on a subscription basis. Bulletin contents are compiled semiannually into Cumulative Bulletins, which are sold on a single-copy basis. It is the policy of the Service to publish in the Bulletin all sub- stantive rulings necessary to promote a uniform application of the tax laws, including all rulings that supersede, revoke, mod- ify, or amend any of those previously published in the Bulletin. All published rulings apply retroactively unless otherwise indi- cated. Procedures relating solely to matters of internal man- agement are not published; however, statements of internal practices and procedures that affect the rights and duties of taxpayers are published. Revenue rulings represent the conclusions of the Service on the application of the law to the pivotal facts stated in the revenue ruling. In those based on positions taken in rulings to taxpayers or technical advice to Service field offices, identifying details and information of a confidential nature are deleted to prevent unwarranted invasions of privacy and to comply with statutory requirements. Rulings and procedures reported in the Bulletin do not have the force and effect of Treasury Department Regulations, but they may be used as precedents. Unpublished rulings will not be relied on, used, or cited as precedents by Service personnel in the disposition of other cases. In applying published rulings and procedures, the effect of subsequent legislation, regulations, court decisions, rulings, and procedures must be considered, and Service personnel and others concerned are cautioned against reaching the same conclusions in other cases unless the facts and circumstances are substantially the same. The Bulletin is divided into four parts as follows: Part I.—19 86 Code. This part i ncludes rulings and decisions based on provisions of the Intern al Revenue Code of 1986. Part II.—Treaties and Tax Legislation. This part is divided into two subparts as follows: Subpart A, Tax Conventions and Other Related Items, and Subpart B, Leg- islation and Related Committee Reports. Part III.—Administrative, Procedural, and Miscellaneous. To the extent practicable, pertinent cross references to these subjects are contained in the other Parts and Subparts. Also included in this part are Bank Secrecy Act Administrative Rul- ings. Bank Secrecy Act Administrative Rulings are issued by the Department of the Treasury’s Office of the Assistant Secre- tary (Enforcement). Part IV .—Items of General Interest. This par t includes notices of proposed rulemakings, disbar- ment an d suspension lists, and announcements. The last Bulletin for each month includes a cumulative index for the matters published during the preceding months. These monthly indexes are cumulated on a semiannual basis, and are published in the last Bulletin of each semiannual period. The c ontents of this publication are not copyrighted and may be reprinted freely. A citation of the Internal Revenue Bulletin as the source would be appropriate. For sale by the Superintendent of Documents, U.S.Government Printing Office, Washington, DC 20402. August 10, 20092009–32 I.R.B. Part I. Rulings and Decisions Under the Internal Revenue Code of 1986 Section 126.— Certain Cost-Sharing Payments 26 CFR 16A.126–1: Certain cost-sharing payments — in general. Certain cost-sharing payments; For- est Health Protection Program.This rul- ing states that the Forest Health Protection Program (FHPP) is substantially similar to the type of programs described in section 126(a)(1) through (8) of the Code within the meaning of section 126(a)(9). Conse- quently, all or a portion of cost-share pay- ments received under the FHPP is eligible for exclusion from gross income to the ex- tent permitted by section 126. Rev. Rul. 2009–23 ISSUE Is the Forest HealthProtection Pro- gram (FHPP) substantially similar to the type of programs described in § 126 (a)(1) through (8) of the Internal Revenue Code, so that the FHPP is within the scope of § 126(a)(9) and, thereby, all or a portion of cost-sharing payments received under the FHPP is eligible for exclusion from gross income to the extent permitted by § 126? FACTS The FHPP, authorized under the provisions of § 8 of the Coopera- tive Forestry Assistance Act of 1978, Pub. L. No. 95–313, 92 Stat. 368, as amended by Title XII, 1218 of the International Narcotics Control Act of 1990, Pub. L. No. 101–624, 104 Stat. 3525, 3531, is a program to protect forests, trees, and wood products, stored wood, and wood in use directly on the National Forest System and, in cooperation with others, on other lands in the United States. The U.S. Forest Service administers the FHPP on behalf of the U.S. Department of Agriculture (USDA), by working in part- nership with state forestry and agriculture agencies. The state agencies work with nonindustrial private forest landowners to identify and implement appropriate man- agement practices. The FHPP includes cost-sharing assistance to landowners that volunteer to p articipate in the program. A landowner wh o wishes to participate in the FHPP mus t enter into a contract or cooperative a greement with the USDA pursuant to w hich the landowner agrees to establish an acceptable integrated pest management s trategy as determined by the Secretar y of Agriculture that will pre- vent, retar d, control, or suppress gypsy moth infest ations, southern pine beetle infestatio ns, spruce budworm infestations, or other maj or insect infestations and re- ceives cos t-sharing payments in exchange. The cost-s haring payments under the pro- gram are no t less than 50 percent and not more than 7 5 percent of the cost of imple- menting th e pest management strategy. The Secret ary of Agriculture has de- termined that cost-sharing payments un- der the FH PP are primarily for the pur- pose of co nserving and restoring wood- lands res ources. In addition, the Secretary of Agricu lture has informed the Treasury Departme nt that the USDA believes that the FHPP is a small watershed program. LAW AND ANALYSIS Under § 126(a), gross income does not include the excludable portion of pay- ments received under certain conservation programs set forth in § 126(a)(1) through (8). Section 126(a)(9) provides that a small watershed program administered by the Secretary of Agriculture also is eligible for § 126 treatment if the Secretary of the Treasury or his delegate determines that the program is substantially similar to the type of programs described in § 126(a)(1) through (8). See § 16A.126–1(d) of the Temporary Income Tax Regulations Re- lating to the Partial Exclusion for Certain Cost-Sharing Payments for rules permit- ting the Commissioner to make these determinations and announce them in the Internal Revenue Bulletin, and for the def- inition of “small watershed.” If the Commissioner has determined that a program is substantially similar to the type of programs described in § 126(a)(1) through (8), taxpayers re- ceiving cost-sharing payments under that program must determine what portion (if any) of the cos t-sharing payments is ex- cludable from gross income under § 126. Under § 126(b) , the excludable portion of a payment i s limited to the portion that (1) is de termined by the Secretary of Agricultu re to be made primarily for the purpose o f conserving soil and water resources, protecting or restoring the envi- ronment, im proving forests, or providing a habitat fo r wildlife, (2) does not increase substantia lly the annual income derived from the pro perty, and (3) is not properly associate d with a deductible expense. See § 126(b) an d § 16A.126–1, relating to the partial ex clusion of certain cost-sharing payments, to determine what portion of the cost- sharing payments is excludable from gros s income under § 126. HOLDING The Inter nal Revenue Service accepts the USDA’ s conclusion that the FHPP is asmallwa tershed program. Accordingly, the FHPP w ill be treated for purposes of § 126 a s a small watershed program adminis tered by the Secretary of Agri- culture . In addition, the Commissioner has dete rmined that the FHPP is sub- stantia lly similar, within the meaning of §126(a )(9), to the type of programs de- scribe d in § 126(a)(1) through (8). Paymen ts received under the FHPP are lim ited to a percentage of the cost of implem enting an integrated pest manage- ment st rategy and qualify as cost-sharing paymen ts. The cost-sharing payments recei ved under the FHPP are eligible for exclu sion from gross income to the extent permi tted by § 126. See § 1 26(b) and § 16A.126–1 to deter- mine t he extent to which cost-sharing pay- ments under the FHPP are excludable from gross income under § 126. DRAFT ING INFORMATION The pr incipal author of this revenue rul- ing i s Jennifer C. Bernardini of the Office of As sociate Chief Counsel (Passthroughs &Spe cial Industries). For further informa- tion regarding this revenue ruling, contact Ms. B ernardini at (202) 622–3110 (not a tol l-free call). 2009–32 I.R.B.177August 10, 2009 Section 6033.—Returns by Exempt Organiz ations 26 CFR 1.6033–6: Notification requirement for enti- ties not required to file an annual information return under section 6033(a)(1) (taxable years beginning af- ter December 31, 2006). T.D. 9454 DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 Notification Requirement for Tax-Exempt Entities Not Currently Required to File AGENCY: Internal Revenue Service (IRS), Treasury. ACTION: Final regulations and removal of temporary regulations. SUMMARY: This document contains final regulations as required by section 6033(i)(1) describing the time and manner in which certain tax-exempt organizations not currently required to file an annual in- formation return under section 6033(a)(1) are required to submitan annual electronic notice including certain information re- quired by section 6033(i)(1)(A) through (F). These regulations affect tax-exempt organizations whose annual gross receipts are not normally in excess of $25,000. DATES:Effective Date:These regulations are effective on July 23, 2009. Applicability Date:These regulations are applicable to annual periods beginning after 2006. FOR FURTHER INFORMATION CONTACT: Monice Rosenbaum at (202) 622–6070 (not a toll-free number). SUPPLEMENTARY INFORMATION: Background This document contains amend- ments to the Income Tax Regulations (26 CFR part 1) under section 6033(i)(1) relating to the notification requirement for entities not currently required to file an annual information return under section 6033(a)(1). Section 6033(i)(1) was added by section 1223(a) of the Pension Protection Act of 2006, Public Law No. 109–208, 120 Stat. 1090 (2006) (PPA 2006), effective for annual periods beginning after 2006. Section 6033(i)(1) requires the Treasury Secretary to promulgate regulations that describe the time and manner in which certain tax-exempt organizations not currently required to file an annual information return are to submit an annual electronic notification including information set forth in section 6033(i)(1)(A) through (F). On November 15, 2007, temporary reg- ulations (T.D. 9366, 2007–2 C.B. 1232) were published in theFederal Register (72 FR 64147) satisfying the requirement that the Treasury Secretary promulgate regulations as described in the preceding paragraph. Those temporary regulations were corrected on November 23, 2007 (72 FR 65667) and December 14, 2007 (72 FR 71060). A notice of proposed rulemaking (REG–104942–07, 2007–2 C.B. 1264) cross-referencing the temporary regulations was published in theFederal Register(72 FR 64174) on November 15, 2007. The IRS and the Treasury Department received four written comments from the public in response to the proposed and temporary regulations. No hearing was requested or held. After consideration of the comments received, it was determined that the proposed regulations would be finalized without change. Accordingly, the proposed regulations are adopted as amended by this Treasury decision and the corresponding temporary regulations are removed. The final regulations retain the provisions of the proposed and temporary regulations and make minor typographical changes. Explanation of Revisions and Summary of Comments One comment pointed out that there is node minimisrule regarding the amount of income an organization receives during the year which would exempt it from having to submit an electronic notification. Section 6033(i) does not provide ade minimisrule, nor does it provide discretionary authority for the IRS and the Treasury Department to establish ade minimisexception for re- porting under section 6033(i)(1). Another comment objected to the re- quirement that the notification be submit- ted electronically. The IRS and the Trea- sury Department note that the statute re- quires that information be submitted elec- tronically, and makes no provision for pa- per notification. However, as stated in the preamble to the temporary regulations, if an organization that is required to sub- mitanannualelectronic notification files a complete Form 990,“Return of Organi- zation Exempt From Income Tax,”or Form 990–EZ,“Short Form Return of Organiza- tion Exempt From Income Tax,”the annual notification required under section 6033(i) shall be deemed satisfied. The annual no- tification requirement is not satisfied if the Form 990 or Form 990–EZ contains only those items of information that would have been required by submitting the notifica- tion in electronic form. One comment asked about the intent of the regulations and the application of the requirement to submit electronic notifica- tion to organizations that are local chapters or clubs of larger organizations. The intent of the regulations, which were required by statute, is to provide the public with the most accurate information about tax-ex- empt organizations. With respect to orga- nizations that are local chapters or clubs of larger organizations, if the organization is a subordinate of a parent organization and the subordinate is included on the parent’s group return, the subordinate need not sub- mit the electronic notification. However, if an organization is not part of a group return and is a separate legal entity that meets the criteria for submitting the electronic notifi- cation, it must submit Form 990–N,“Elec- tronic Notice (e-Postcard) for Tax-Exempt Organizations Not Required To File Form 990 or 990–EZ.” Finally, another comment asked about the applicability of the electronic notifi- cation requirement to Qualified State and Local Political Organizations (QSLPOs). QSLPOs are not organizations described in section 501(c) that are required to file a return under section 6033(a); therefore, the provisions of these final regulations do not apply to them. However, QSLPOs may have other reporting requirements under section 6033(g). August 10, 20091782009–32 I.R.B. Special Analyses It has been determined that this Trea- sury decision is not a significant regula- tory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations. It is hereby certified that the collec- tion of information in §1.6033–6 will not have a significant economic impact on a substantial number of small enti- ties. Accordingly, a regulatory flexibility analysis under the Regulatory Flexibil- ity Act (5 U.S.C. 601) is not required. The effect of these regulations on small entities flows directly from the statute these regulations implement. Section 6033(i)(1) requiresthat certain entities submit annual notification, in electronic form, setting forth: the legal name of the organization; any name under which such organization operates or does business; the organization’s mailing address and Internet Web site address (if any); the organization’s taxpayer identification number; the name and address of a principal officer; and evidence of the continuing basis for the organization’s exemption from the filing requirements under section 6033(a)(1). Pursuant to section 7805(f) of the Inter- nal Revenue Code, these regulations were submitted to the Chief Counsel for Advo- cacy of the Small Business Administration for comment on their impact on small busi- ness. Drafting Information The principal author of these regula- tions is Monice Rosenbaum of the Of- fice of Division Counsel/Associate Chief Counsel (Tax Exempt and Government Entities). However, other personnel from the IRS and the Treasury Department par- ticipated in their development. ***** Adoption of Amendments to the Regulations Accordingly, 26 CFR part 1 is amended as follows: PART 1 — INCOME TAXES Paragraph 1. The authority citation for part 1 continues to read in part as follows: Authority: 26 U.S.C. 7805 * * * Section1.6033–6alsoissuedunder 26 U.S.C. 6033(i)(1).*** Par. 2. Section 1.6033–6 is added to read as follows: §1.6033–6 Notification requirement for entities not required to file an annual information return under section 6033(a)(1) (taxable years beginning after December 31, 2006)—(a)In general. Except as otherwise provided in this paragraph, every organization exempt from taxation under section 501(a) that is not required to file a return described in §1.6033–2(a)(2), other than an organization described in section 401(a) or 501(d), shall submit annually, in electronic form, a notification setting forth the items described in paragraph (c) of this section and such other information as may be prescribed in the instructions and publications issued with respect to the notification. (b)Organizations not required to sub- mit annual electronic notification.(1)An organization exempt from taxation under section 501(a) that is required to file or files an annual information return under section 6033(a)(1) shall not submit an an- nual electronic notification under section 6033(i). This includes the following types of organizations: (i) Any organization included in a group return for that year under §1.6033–2(d). (ii) All private foundations required to file under §1.6033–2(a)(2)(i) Form 990–PF,“Return of Private Foundation or Section 4947(a)(1) Nonexempt Charitable Trust Treated as a Private Foundation.” (iii) Section 509(a)(3) supporting organizations required to file under §1.6033–2(a)(2)(i) Form 990,“Return of Organization Exempt From Income Tax,” or Form 990–EZ,“Short Form Return of Organization Exempt From Income Tax.” (iv) A section 501(c)(21) black lung trust required to file under §1.6033–2(a)(2)(i) Form 990–BL,“In- formation and Initial Excise Tax Return for Black Lung Benefit Trusts and Certain Related Persons.” (v) Any organization that is required to file or files an annual information return under section 6033(a)(1) on any other form prescribed by the Internal Revenue Service for that purpose. (2) An organization exempt from tax- ation under section 501(a) that is not required to file a return under section 6033(a)(1) is also not required to submit an annual electronic notification under section 6033(i). This includes the follow- ing types of organizations: (i) A church, an interchurch organiza- tion of local units of a church, a conven- tion or association of churches, or an inte- grated auxiliary of a church (as defined in §1.6033–2(h)). (ii) An exclusively religious activity of any religious order. (iii) A mission society sponsored by or affiliated with one or more churches or church denominations, more than one-half of the activities of which society are con- ducted in, or directed at persons in, foreign countries. (iv) An educational organization (be- low college level) described in sec- tion 170(b)(1)(A)(ii), that has a pro- gram of a general academic nature, and that is affiliated (within the meaning of §1.6033–2(h)(2)) with a church or oper- ated by a religious order. (v) A State institution, the income of which is excluded from gross income un- der section 115(a). (vi) An organization described in sec- tion 501(c)(1). (vii) An organization that is a govern- mental unit or an affiliate of a governmen- tal unit exempt from Federal income tax under section 501(a). (3) If an organization exempt from tax- ation under section 501(a) is not described in paragraph (b)(1) or (2) of this section, the organization must submit an annual electronic notification. Thus, a black lung trust that normally has gross receipts of $25,000 or less is not required to file Form 990–BL but is required to submit an an- nual electronic notification. A section 509(a)(3) supporting organization of a religious organization that normally has gross receipts of $5,000 or less is not re- quired to file Form 990 or Form 990–EZ but is required to submit an annual elec- tronic notification. (c)Additional notification require- ments—(1)In general. Any organization 2009–32 I.R.B.179August 10, 2009 described in paragraph (a) of this section shall submit an annual electronic notifica- tiondescribedinsection6033(i)(1). The annual electronic notification shall— (i) Be in electronic form; and (ii) Set forth— (A) The legal name of the organization; (B) Any name under which the organi- zation operates or does business; (C) The organization’s mailing address and Internet Web site address (if any); (D) The organization’s taxpayer identi- fication number; (E) The name and address of a principal officer; (F) Evidence of the continuing basis for the organization’s exemption from the fil- ing requirements under section 6033(a)(1); and (G) Additional information necessary to process the notification. (2) The mailing address required by section 6033(i)(1)(C) and submitted in the annual electronic notification shall be the organization’s last known address as pro- vided by §301.6212–2(a) of this chapter. This last known address may be updated as provided under §301.6212–2 of this chapter, or by clear and concise notifica- tion. The Internal Revenue Service will use this last known address as the organi- zation’s address of record and will direct all mailings to this address. (3) By submitting the annual electronic notification describedin paragraph (c)(1) of this section, an organization acknowl- edges that it is not required to file a re- turn under section 6033(a) because its an- nual gross receipts are not normally in ex- cess of $25,000. In order to make this determination, the organization must keep records that enable it to calculate its gross receipts. All organizations are required to maintain records under section 6001. These records will provide evidence of the continuing basis for the organization’s ex- emption from the filing requirements un- der section 6033(a)(1). (4) If an organization that is required to submit an annual electronic notifica- tion files a complete Form 990 or Form 990–EZ, the annual electronic notification requirement shall be deemed satisfied. The annual electronic notification require- ment is not satisfied if the Form 990 or Form 990–EZ contains only those items of information that would have been required by submitting the notification in elec- tronic form. Also, the filing of a complete Form 990 or Form 990–EZ, rather than the submission of an annual electronic notifi- cation, is the filing of a return that starts the period of limitations for assessment under section 6501(g)(2). (d)No effect on other filing require- ments. An organization that is relieved from filing an information return under section 6033(a) is still subject to the re- quirements of §§1.6033–2(i) and (j), con- cerning: notice regarding changes in char- acter, operations, or purpose; provision of additional information; duty to file other returnsofinformation;anddutytofileun- related business tax returns. If an organi- zation is required to file an unrelated busi- ness tax return, Form 990–T,“Exempt Or- ganization Business Income Tax Return,” the filing of that return does not relieve the organization from the requirement of submitting an annual electronic notifica- tion under section 6033(i). (e)Accounting period for submitting annual electronic notification. An annual electronic notification required by this sec- tion shall be on the basis of the established annual accounting period of the organiza- tion. If the organization has no established accounting period, the annual electronic notification shall be on the basis of the cal- endar year. (f)Time and place for submitting an- nual electronic notification. The annual electronic notification required by this sec- tion shall be submitted on or before the 15th day of the fifth calendar month fol- lowing the close of the period for which the notification is required to be submitted. Thus, an organization with an accounting period ending December 31, 2007, is re- quired to submit an annual electronic no- tification by May 15, 2008. The notifi- cation shall be submitted in accordance with instructions and publications, includ- ing those provided at the Internal Revenue Service Web site for exempt organizations. (g)Effective/applicability date.These regulations are applicable to annual peri- ods beginning after 2006. §1.6033–6T [Removed]. Par. 3. Section 1.6033–6T is removed. LindaE.Stiff, Deputy Commissioner for Services and Enforcement. Approved July 15, 2009. Michael Mundaca, Acting Assistant Secretary oftheTreasury(TaxPolicy). (Filed by the Office of the Federal Register on July 22, 2009, 8:45 a.m., and published in the issue of the Federal Register for June 23, 2009, 74 F.R. 36395) August 10, 20091802009–32 I.R.B. Part III. Administrative, Procedural, and Miscellaneous Standards of Conduct for the Tax Return Preparer Community and Increased Taxpayer Compliance Notice 2009–60 PURPOSE This notice invites public comments regarding the Internal Revenue Service’s review of issues concerning tax return preparers. In June 2009, the Service an- nounced plans to propose a comprehensive set of recommendations by the end of 2009 regarding how the tax return preparer community can help increase taxpayer compliance and how to ensure that tax return preparers meet both uniform and high ethical standards of conduct. See IR–2009–57 (June 4, 2009). The Service is seeking the input of tax preparers, the associated industry, consumer groups, and taxpayers before any recommendations are made. To assist in developing its proposals and to ensure that input is received from a broad range of stakeholders, the Service has scheduled a number of meetings in Washington, D.C., and around the country with constituent groups. See IR–2009–66 (July 14, 2009). In this notice, the Ser- vice is requesting written comments from all affected persons and entities. The in- formation collected will assist the Service in drafting recommendations. REQUESTS FOR PUBLIC COMMENT The Service requests comments on 1) how the tax return preparer community can assist in increasing taxpayer compliance and 2) how to ensure that tax return preparers meet both uniform and high ethical standards of conduct. The Service is particularly interested in any comments regarding: •What types of individuals, entities, and professionals currently work as tax return preparers? How are their tax return preparation services currently monitored or regulated by professional organizations or the government? How could this monitoring and regu- lation be improved? •Howdodifferenceinregulationand oversight affect how the various groups of tax return preparers interact with the Service and taxpayers? •Is there a minimum level of education and training necessary to provide tax return preparation services? If so, who should be responsible for ensuring that a tax return preparer meets this min- imum level and how should that be done? •What, if any, service and outreach should be provided to tax return pre- parers and taxpayers? Who should provide (and bear the costs for) these needed services? •Should tax return preparers be subject to a code of ethics, and, if so, what specific behavior should that code pro- mote or prohibit? How would that code of ethics interact with existing ethical standards that may already be applicable? •What, if any, responsibility should the firms or businesses that employ tax re- turn preparers have for the conduct of the individuals they employ? •What, if any, responsibility should tax return preparer professional organiza- tions have for the education, training, and conduct of their members? •If tax return preparation services should be regulated, what, if any, spe- cial regulatory provisions should be made for individuals who are already tax return preparers, licensed attor- neys, certified public accountants, enrolled agents, or software providers? •What, if any, additional legislative, regulatory, or administrative rules should the Service consider recom- mending as part of its proposals with respect to the tax return preparer com- munity? Written comments should be sent to: CCPA:LPD:PR (Notice 2009–60), Room 5203, Internal Revenue Service, P.O. Box 7604, Ben Franklin Station, Washing- ton, D.C. 20044. Alternatively, com- ments may be hand delivered between the hours of 8:00 a.m. and 4:00 p.m. MondaytoFridaytoCC:PA:LPD:PR (Notice 2009–60), Courier’s Desk, Inter- nal Revenue Service, 1111 Constitution Avenue, NW, Washington, D.C. Com- ments may also be transmitted electron- ically via the following e-mail address: Notice.Comments@irscounsel.treas.gov. Please include “Notice 2009–60” in the subject line of any electronic communications. All comments will be available for pub- lic inspection and copying. Because the Service intends to make recommendations by December 31, 2009, comments, if any, must be received by August 31, 2009. DRAFTING INFORMATION The principal author of this notice is Richard S. Goldstein of the Office of Associate Chief Counsel (Procedure & Administration). For further infor- mation regarding this notice, contact Richard S. Goldstein at (202) 622–3400 (not a toll-free call). Treatment of Fails Charges forPurposesofSections871, 881, 1441 and 1442 Notice 2009–61 In response to persistent delivery fail- ures in the pay-for-delivery market for U.S. Treasury securities (U.S. Treasuries) during the fall of 2008, a new trading prac- tice governing failed deliveries of U.S. Treasuries has been voluntarily adopted by many market participants (including the Federal Reserve Bank of New York and most dealers, custodians, and asset managers of U.S. Treasuries). Under the new practice, if one party (the “Failing Party”) fails to deliver U.S. Treasuries to another party (the “Non-Fail- ing Party”) by the date previously agreed to by the parties, the Failing Party will pay an amount (called a “Fails Charge”) to the Non-Failing Party. The Fails Charge accrues daily and, if properly claimed by the Non-Failing Party, is due and payable in the month following the month in which the Failing Party actually delivers the 2009–32 I.R.B.181August 10, 2009 promised U.S. Treasury. 1 The new Fails Charge practice was adopted by market participants to preserve and enhance the efficiency of the secondary market for U.S. Treasuries by reducing the incidence of delivery failures, especially in low interest rate environments, where the economic incentive to deliver timely is reduced. Many market participants have indi- cated that there is a lack of clarity regard- ing the treatment of these Fails Charges for purposes of sections 871, 881, 1441, and 1442 of the Internal Revenue Code (the “Code”), which relate to gross-basis taxation of foreign persons not otherwise subject to U.S. net-basis taxation. As a re- sult, these market participants suggest that unless guidance is provided, there may be disruptions in the secondary market for U.S. Treasuries as various withholding agents take various positions with respect to the proper characterization of Fails Charges for those purposes. This notice announces that the Trea- sury Department and the Internal Revenue Service (Service) are considering issuing guidance regarding the circumstances, if any, in which Fails Charges are subject to U.S. gross-basis taxation. Any such guidance regarding the treatment of a Fails Charge under sections 871, 881, 1441, and 1442oftheCodewillbeprospectiveinef- fect. In light of the complexity of the is- sues raised by the proper treatment of Fails Charges for U.S. federal tax purposes and the need for guidance, the Service will not challenge a position taken by a taxpayer or a withholding agent that a Fails Charge that is paid on or before December 31, 2010, is not subject to U.S. gross-basis taxation un- less contrary guidance has been issued ef- fective before that date. DRAFTING INFORMATION The principal author of this notice is Anthony J. Marra of the Office of Asso- ciate Chief Counsel (International). How- ever, other personnel from the IRS and Treasury participated in its development. For further information regarding this no- tice, contact Anthony J. Marra at (202) 622–3870 (not a toll-free call). 1 More information about this new Fails Charge trading practice can be found athttp://www.newyorkfed.org/tmpg/orhttp://www.ny.frb.org/tmpg/newsandevents.html August 10, 20091822009–32 I.R.B. Part IV. Items o fGeneralInterest Withdrawal of Notice of Proposed Rule making andNoticeofP roposed Rulemaking Taxpayer Ass istance Orders REG–152166– 05 AGENCY: Inte rnal Revenue Service (IRS), Treas ury. ACTION: Wit hdrawal of notice of pro- posed rulem aking and notice of proposed rulemaking . SUMMARY: Th is document withdraws the notice o f proposed rulemaking pub- lished on Ap ril 19, 1996, in the Federal Register a nd contains proposed regula- tions rela ting to the issuance of Taxpayer Assistanc e Orders (TAOs). The IRS is issuing th ese proposed regulations to pro- vide guida nce relating to the issuance of aTAO.The se proposed regulations are necessar y because the existing regulations do not ref lect changes to the law made by the Taxpa yerBillofRightsII(TBOR2), the Inte rnal Revenue Service Restructur- ing and R eform Act of 1998 (RRA 98), the Comm unity Renewal Tax Relief Act of 2000, and the American Jobs Creation Act of 20 04 (AJCA). The action taken in these p roposed regulations will affect IRS employ ees in cases where a TAO is being consid ered or issued. DATES: Written or electronic comments and req uests for a public hearing must be receiv ed by October 26, 2009. ADDRES SES: Send submissions to: CC:PA :LPD:PR (REG–152166–05), room 5205, Internal Revenue Service, P.O. Box 7604, Ben Franklin Station, Washing- ton, D C 20224. Submissions may be hand d elivered Monday through Friday betwe en the hours of 8 a.m. and 4 p.m. to CC :PA:LPD:PR (REG–152166–05), Cour ier’s Desk, Internal Revenue Ser- vice , 1111 Constitution Avenue NW, Wash ington, DC 20044, or sent elec- tron ically via the Federal eRulemaking Por tal athttp://www.regulations.gov/(IRS REG –152166–05). FOR FURTHER IN FORMATION CONTACT: Conc erning the pro- posed regulat ions, Janice R. Feldman, (202)622–848 8;concerning submissionso fcomments, Richard.A.H urst@irscounsel.treas.gov (202) 622–71 80 (not toll-free numbers). SUPPLEMENTA RY INFORMATION: Background Section 7811 of the Internal Revenue Code (Code) a uthorizes the NTA to issue a TAO when a t axpayer is suffering or is about to suf fer a significant hardship as a result of th e manner in which the internal revenue law s are being administered by the IRS and the l aw and the facts support re- lief. A TAO may be issued to direct that the operat ing division or function take a specific a ction, cease a specific action, or refrain fr om taking a specific action or to order the I RS to review at a higher level, expedite consideration of, or reconsider a taxpayer ’s case. The IRS will comply with aTAOunle ss it is appealed and then modi- fied or re scinded by the Commissioner, the Deputy C ommissioner, or the NTA. Ap- peal pro cedures are provided in the Inter- nal Reve nue Manual (IRM). Propose d regulations were published on April 19, 1996, in theFederal Regis- ter(GL– 1-96, 1996–1 C.B. 769 [61 FR 17265]) . The proposed regulations limited the aut hority to modify or rescind TAOs to the Omb udsman, the Commissioner, and the Dep uty Commissioner, and, with the writte n authorization of one of these of- ficial s, a district director, a service center direc tor, a compliance center director, a regio nal director of appeals (director), or the su periors of a director. Following the publi cation of the proposed regulations, Congr ess enacted TBOR 2, Public Law 104–1 68, 110 Stat. 1452 (1996), which, amon g other things, authorized only the Taxp ayer Advocate, the Commissioner, or the D eputy Commissioner to modify or resc ind a TAO. In light of the enactment of TB OR 2, this document withdraws the proposed regulations published in the Fed eral Registeron April 19, 1996. Thi s document also contains proposed ame ndments to the Procedure and Admin- ist ration Regulations (26 CFR part 301) relating to TA Os under section 7811. Tem- porary regula tions (T.D. 8246, 1989–1 C.B. 320) were published on March 22, 1989, in theFe deral Register(54 FR 11699). Final regulations (T.D. 8403, 1992–1 C.B. 4 36) were published on March 23, 199 2, in theFederal Register (57 FR 9975). After the final regulations were publish ed, sections 101 and 102 of TBOR 2, Publ ic Law 104–168, 110 Stat. 1452 (1996) ,amendedsection7811by changing th enameoftheOmbudsman to the Taxpa yer Advocate, providing that TAOs may or der the IRS to take certain affirmati ve actions, and restricting who may modify or rescind a TAO. Section 1102 of RRA 98, Public Law 105–206, 112 Stat. 6 85 (1998), further amended section 7 811, by providing examples of signific ant hardship and replacing “Tax- payer Adv ocate” with “National Taxpayer Advocate .” Section 881(c) of AJCA, Pub- lic Law 1 08–357, 118 Stat. 1418 (2004) clarifi ed that a TAO applies to person- nel perf orming services under a qualified tax coll ection contract to the same ex- tent as i t applies to IRS personnel. Thus, this do cument contains a new notice of propos ed rulemaking implementing the amendm ents under section 7811 pursuant to the e nactment of TBOR 2, RRA 98, the Com munity Renewal Tax Relief Act of 200 0, and AJCA and also to provide guida nce on issues that have arisen in the admin istration of section 7811. Section 301.7 811–1(e) of the existing regulations, which concerns the suspension of statutes of li mitations, is not being revised as part of th is proposed rulemaking as changes to that section may involve changes to IRS comp uter processing systems and will be deal t with at a later date. Expl anation of Provision 1.Sig nificant Hardship Under Section 301.7811–1(a)(4)(ii) of the existing regulations,significant hard shipmeans “serious privation caused or ab out to be caused to the taxpayer as th e result of the particular manner in whic h the internal revenue laws are being admi nistered by the Internal Revenue Ser- vice .” RRA 98 clarified the meaning of the termsignificant hardshipby provid- 2009–32 I.R.B.183August 10, 2009 ing a nonexclusive list of types. Section 7811(a)(2) provides thatsignificant hard- shipincludes: (1) an immediate threat of adverse action; (2) a delay of more than 30 days in resolving taxpayer account prob- lems; (3) the incurring by the taxpayer of significant costs (including fees for pro- fessional representation) if relief is not granted; or (4) irreparable injury to, or a long-term adverse impact on, the taxpayer if relief is not granted. Thus, the proposed regulations list the statutory types and also provide guidance with regard to what constitutes significant hardship under the delay standard and other criteria. Sig- nificant hardship under the 30-day delay standard is met when a taxpayer does not receive a response by the date promised by the IRS, or when the IRS has established a normal processing time for taking an ac- tion and the taxpayer experiences a delay of more than 30 days beyond the normal processing time. 2.Distinction Between Significant Hardship and Issuance of TAO The proposed regulations discuss the distinction betweena finding of “signif- icant hardship” and “the issuance of a TAO.” The proposed regulations are de- signed to clarify that a finding by the NTA that a taxpayer is suffering or about to suf- fer a significant hardship as a result of the manner in which the internal revenue laws are being administered by the IRS will not automatically result in the issuance of a TAO. After making a determination of significant hardship, the NTA must deter- mine whether the facts and the law support relief. 3.Compliance with the TAO The proposed regulations explain that a TAO is an order by the NTA to the IRS and that the IRS will comply with the terms of the TAO unless it is appealed and then modified or rescinded by the Commis- sioner, the Deputy Commissioner, or the NTA. If a TAO is modified or rescinded by the Commissioner or Deputy Commis- sioner, a written explanation of the reasons for the modification or rescission must be provided to the NTA. Furthermore, the proposed regulations clarify that a TAO is not intended to be a substitute for an established administrative or judicial re- view procedure, but rather is intended to supplement these procedures if a taxpayer is about to suffer or is suffering a signifi- cant hardship. Thus, a taxpayer’s right to administrative or judicial review will not be diminished or expanded in any way as a result of the taxpayer’s seeking assis- tance from the Taxpayer Advocate Service (TAS). 4.Form of Request The proposed regulations provide that a request for a TAO shall be made on a Form 911,“Request for Taxpayer Advocate Ser- vice Assistance (And Application for Tax- payer Assistance Order)”(or other spec- ified form) or in a written statement that provides sufficient information for TAS to determine the nature of the harm or the need for assistance. 5.Scope of the TAO The proposed regulations provide that the NTA can issue a TAO directing an ac- tion in the circumstances outlined in sec- tion 7811(b). Section 7811(b) provides that the NTA may issue a TAO ordering the IRS within a specified time to (i) re- lease levied property, or (ii) cease any ac- tion, take any action as permitted by law, or refrain from taking any action with respect to a taxpayer under: (A) chapter 64 (re- lating to collection); (B) chapter 70, sub- chapter B (relating to bankruptcy and re- ceiverships); (C) chapter 78 (relating to discovery of liability and enforcement of title); or (D) any other provision of law specifically described by the NTA in the TAO. Consistent with the list of specific subchapter and chapters of the Code in sec- tion 7811(b), the proposed regulations pro- vide that the phrase “any provision of law” refers to other provisions of the internal revenue laws similar to the provisions enu- meratedinthestatute. The proposed regulations further pro- vide that in circumstances where the statute does not authorize the issuance of a TAO to order a specific action, if the NTA determines that the taxpayer is suffering or about to suffer a significant hardship and that the issuance of a TAO is appropriate, theNTAmayissueaTAOseekingtoex- pedite, review, or reconsider an action at a higher level. Although the statute does not expressly state that a TAO may be issued to request that the IRS expedite, review, or reconsider at a higher level an action, the statuteandthelegislative history support this interpretation. As initially enacted, section 7811(b) did not grant the Ombudsman (the predecessor to the NTA) the authority to order affirma- tive actions. At that time, section 7811(b) provided that a TAO could order either the release of levy or could order the IRS to cease or refrain from taking an action un- der the three enumerated chapters of the Code listed in the statute. Thus, under the initial version of section 7811(b)(2), ex- cept for releasing levies, TAOs could not be issued to take affirmative actions. For example, a TAO could order the IRS to re- frain from filing a Notice of Federal Tax Lien (NFTL), but it could not require the IRS to release an NFTL. Delegation Order (DO) 239 (01–31–92) remedied this prob- lem by delegating to the Ombudsman the authority to order affirmative acts. Con- gress also recognized the deficiency in the law and amended section 7811(b) as part ofTBOR2toallowTAOstobeissued with respect to affirmative acts by insert- ing the words “take any action as permit- ted by law” into the statute. The Com- mittee Report to TBOR 2, H. Rep. No. 104–506, 104 th Cong., 2 nd Sess., at 1148 (1996), explains how the existing law was deficient in that, for example, it did not al- low a TAO to be issued to expedite a re- fund or review the validity of a tax defi- ciency. The report explains that the rea- son for amendment to section 7811(b) was to allow a TAO to be issued “for a review of the appropriateness of the proposed ac- tion.” Thus, consistent with the legislative history and the statutory amendments, the proposed regulations provide that where the statute does not authorize the issuance of a TAO to order a specific action, if the NTA determines that a taxpayer is suffer- ing or about to suffer a significant hardship and that relief is appropriate, the NTA may issue a TAO seeking to expedite, review, or reconsider an action at a higher level. 6.WhoisSubjecttoaTAO The proposed regulations provide rules regarding who is subject to a TAO. Gener- ally, a TAO can be issued to any operating division or function of the IRS. Due to the sensitivity and importance of criminal in- vestigations, the proposed regulations pro- vide that a TAO may not be issued if the ac- tion ordered in the TAO could reasonably August 10, 20091842009–32 I.R.B. be expected to impede a criminal inves- tigation. The IRS Criminal Investigation division (CI) will determine whether the action ordered in the TAO could reason- ably be expected to impede an investiga- tion. Procedures for handling cases where the NTA questions CI’s initial determina- tion will be added to the IRM. TheruleforissuingaTAOtotheOffice of Chief Counsel has been updated to re- flect the reorganization of the IRS as well as statutory changes. The existing regu- lations provide that: “[a] taxpayer assis- tance order may generally not be issued ...toenjoinanactoftheOfficeof Chief Counsel (with the exception of Ap- peals).” Due to a reorganization of the Of- fice of Chief Counsel, effective October 1, 1995, Appeals is no longer a component of the Office of Chief Counsel. Accord- ingly, the proposed regulations eliminate the parenthetical reference to Appeals in §301.7811–1(c)(3). The NTA continues to have the authority to issue TAOs to Ap- peals. Additionally, at the time that the ex- isting regulations were finalized, the Om- budsman could not issue a TAO to order an affirmative act, other than a release of levy. As discussed in this preamble, under the current version of the statute, the NTA has much broader authority regarding the ability to order an affirmative act. Thus, the term “enjoin” has also been eliminated, and the rule under the proposed regulations is that: “[g]enerally a TAO may not be is- sued to the Office of Chief Counsel.” Special Analyses This notice of proposed rulemaking is not a significant regulatory action as defined in Executive Order 12866. There- fore, a regulatory assessment is not re- quired. It has also been determined that section 553(b) of the Administrative Pro- cedure Act (5 U.S.C. chapter 5) does not apply to these regulations. Pursuant to the Regulatory Flexibility Act (5 U.S.C. chapter 6), it is hereby certified that these regulations will not have a significant eco- nomic impact on a substantial number of small entities. The information required under these proposed regulations is al- ready required by the current regulations and the Form 911,“Request for Taxpayer Advocate Service Assistance (And Appli- cation for Taxpayer Assistance Order).”In addition, the Form 911 takes minimal time and expense to prepare, and the filing of a Form 911 is optional. Therefore, prepar- ing the Form 911 does not significantly increase the burden on taxpayers. Based on these facts, the Treasury Department and the IRS have determined that these proposed regulations will not have a sig- nificant economic impact on a substantial number of small entities. Furthermore, the substance of the regulations does not concern the Form 911, but the procedures the Taxpayer Advocate Service (TAS) or the Internal Revenue Service (IRS) must follow with respect to taxpayer assistance orders. Therefore, any burden created by these regulations is on the TAS or IRS, not taxpayers. Pursuant to section 7805(f) of the Code, this notice of proposed rule- making has been submitted to the Chief Counsel for Advocacy of the Small Busi- ness Administration for comment on its impact on small business. Comments and Requests for a Public Hearing Before these proposed regulations are adopted as final regulations, consideration will be given to any written or electronic comments that are submitted timely to the IRS. All comments will be available for public inspection and copying. A public hearing may be scheduled if requested in writing by any person who timely submits written comments. If a public hearing is scheduled, notice of the date, time, and place for the public hearing will be pub- lished in theFederal Register. Drafting Information The principal author of these regula- tions is Janice R. Feldman, Office of the Special Counsel (National Taxpayer Ad- vocate Program) (CC:NTA). ***** Withdrawal of Proposed Regulations Accordingly, under the authority of 26 U.S.C. 7805, the notice of proposed rulemaking that was published in the Federal Registeron April 19, 1996 (61 FR 17265) is withdrawn. Proposed Amendments to the Regulations Accordingly, 26 CFR part 301 is pro- posed to be amended as follows: PART 301—PROCEDURE AND ADMINISTRATION Paragraph 1. The authority citation for part 301 continues to read in part as fol- lows: Authority: 26 U.S.C. 7805 * * * Par. 2. Section 301.7811–1 is amended by revising paragraphs (a), (b), (c) and (d), removing paragraphs (f), (g), (h) and re- designating paragraph (h) as (f) and revis- ing newly designated paragraph (f) to read as follows: §301.7811–1 Taxpayer Assistance Orders (a)Authority to issue—(1)In general. When an application for a Taxpayer Assis- tance Order (TAO) is filed by the taxpayer or the taxpayer’s authorized representative in the form, manner and time specified in paragraph (b) of this section, the Na- tional Taxpayer Advocate (NTA) may is- sue a TAO if, in the determination of the NTA, the taxpayer is suffering or is about to suffer a significant hardship as a result of the manner in which the internal revenue laws are being administered by the Inter- nal Revenue Service (IRS), including ac- tion or inaction on the part of the IRS. (2)The National Taxpayer Advocate defined.ThetermNational Taxpayer Ad- vocateincludes any designee of the NTA, such as a Local Taxpayer Advocate. (3)Issuance without a written applica- tion.TheNTAmayissueaTAOintheab- sence of a written application by the tax- payer under section 7811(a). (4)Significant hardship—(i)Determi- nation required. Before a TAO may be is- sued, the NTA is required to make a deter- mination regarding significant hardship. (ii)Term Defined.Thetermsignificant hardshipmeans a serious privation caused or about to be caused to the taxpayer as the result of the particular manner in which the revenue laws are being administered by the IRS. Significant hardship includes situ- ations in which a system or procedure fails to operate as intended or fails to resolve the taxpayer’s problem or dispute with the IRS. A significant hardship also includes, but is not limited to: 2009–32 I.R.B.185August 10, 2009 (A) An immediate threat of adverse ac- tion; (B) A delay of more than 30 days in resolving taxpayer account problems; (C) The incurring by the taxpayer of significant costs (including fees for pro- fessional representation) if relief is not granted; or (D) Irreparable injury to, or a long-term adverse impact on, the taxpayer if relief is not granted. (iii)A delay of more than 30 days in re- solving taxpayer account problems is fur- ther defined. A delay of more than 30 days in resolving taxpayer account prob- lems exists under the following conditions: (A) When a taxpayer does not receive a response by the date promised by the IRS; or (B) When the IRS has established a nor- mal processing time for taking an action and the taxpayer experiences a delay of more than 30 days beyond the normal pro- cessing time. (iv)Examples of significant hardship. The provisions of this section are illus- trated by the following examples: Example 1.Immediate threat of adverse action. The IRS serves a levy on A’s bank account. A needs the bank funds to pay for a medically necessary sur- gical procedure that is scheduled to take place in one week. If the levy is not released, A will lack the funds necessary to have the procedure. A is experiencing an immediate threat of adverse action. Example 2.Delay of more than 30 days. B files a Form 4506, “Request for Copy of Tax Return.” B does not receive the photocopy of the tax return after waiting more than 30 days beyond the normal time for processing. B is experiencing a delay of more than 30 days. Example 3.Significant costs. The IRS sends XYZ, Inc. several notices requesting payment of the outstanding employment taxes owed by XYZ, Inc. and four of its subsidiaries. The IRS contends that XYZ, Inc. and the four subsidiaries have small em- ployment tax balances with respect to 12 employment tax quarters totaling $10X. XYZ, Inc. provides doc- umentation to the IRS which it contends shows that if all payments were applied to each entity correctly, there would be no balance due. The IRS requests ad- ditional records and documentation. Because there are 60 tax periods (12 quarters for each of the five entities) involved, to comply with this request XYZ, Inc. will need to hire an accountant, who estimates he will charge at least $5X to organize all the records and provide a detailed analysis of the how the pay- ments should have been applied. XYZ, Inc. is facing significant costs. Example 4.Irreparable injury. D has arranged with a bank to refinance his mortgage to lower his monthly payment. D is unable to make the current monthly payment. Unless the monthly payment amount is lowered, D will lose his residence to fore- closure. The IRS refuses to subordinate the federal tax lien, as permitted by IRC section 6325(d), or dis- charge the property subject to the lien, as permitted by IRC section 6325(b). As a result, the bank will not allow D to refinance. D is facing an irreparable injury if relief is not granted. (5)Distinction Between Significant Hardship and the Issuance of a TAO.A finding that a 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 will not automatically result in theissuanceofaTAO.Aftermakinga determination of significant hardship, the NTA must determine whether the facts and the law support relief for the taxpayer. In cases where any IRS employee is not following applicable published adminis- trative guidance (including the Internal Revenue Manual), the NTA shall construe the factors taken intoaccount in determin- ing whether to issue a TAO in the manner most favorable to the taxpayer. (b)Generally.ATAOisanorderby the NTA to the IRS. The IRS will comply with a TAO unless it is appealed and then modified or rescinded by the NTA, Com- missioner or the Deputy Commissioner. If a TAO is modified or rescinded by the Commissioner or Deputy Commissioner, a written explanation of the reasons for the modification or rescission must be pro- vided to the NTA. The NTA may not make a substantive determination of any tax li- ability. A TAO is also not intended to be a substitute for an established admin- istrative or judicial review procedure, but rather is intended to supplement existing procedures if a taxpayer is about to suffer or is suffering a significant hardship. A re- quest for a TAO shall be made on a Form 911,“Request for Taxpayer Advocate Ser- vice Assistance (And Application for Tax- payer Assistance Order)”(or other spec- ified form) or in a written statement that provides sufficient information for TAS to determine the nature of the harm or the need for assistance. A taxpayer’s right to administrative or judicial review will not be diminished or expanded in any way as a result of the taxpayer’s seeking assistance from TAS. (c)Contents of Taxpayer Assistance Or- ders. After establishing that the taxpayer is facing significant hardship and determin- ing that the facts and law support relief to thetaxpayer,theNTAmayissueaTAOor- dering the IRS within a specified time to— (1)Release a Levy. Release levied property (to the extent that the IRS may by law release such property); or (2)Take Certain Other Actions. Cease any action, take any action as permitted by law, or refrain from taking any action with respect to a taxpayer pursuant to— (i) Chapter 64 (relating to collection); (ii) Chapter 70, subchapter B (relating to bankruptcy and receiverships); (iii) Chapter 78 (relating to discovery of liability and enforcement of title); or (iv) Any other provision of the internal revenue laws specifically described by the NTA in the TAO. (3)Expedite, Review or Reconsider an Action at a Higher Level. Although the NTA may not make the substantive deter- mination, a TAO may be issued to require the IRS to expedite, reconsider, or review at a higher level an action taken with re- spect to a determination or collection of a tax liability. (4)Examples. The following examples assume the existence of significant hard- ship: Example 1. J contacts a local taxpayer advocate because a wage levy is causing financial difficul- ties. The NTA determines that the levy should be released as it is causing economic hardship (within the meaning of section 6343(a) and Treas. Reg. §301.6343–1(b)(4)). The NTA may issue a TAO ordering the IRS to release the levy in whole or in part by a specified date. Example 2. The IRS rejects K’s offer in compro- mise. K files a Form 911, “Request for Taxpayer Ad- vocate Service Assistance (and Application for Tax- payer Assistance Order).” The NTA discovers facts that support acceptance of the offer in compromise. TheNTAmayissueaTAOorderingtheIRStore- consider its rejection of the offer or to review the re- jection of the offer at a higher level. The TAO may include NTA analysis of and recommendation for re- solving the case. Example 3. L files a protest requesting Appeals consideration of IRS’s proposed denial of L’s request for innocent spouse relief. Appeals advises L that it is going to issue a Final Determination denying the re- quest for innocent spouse relief. L files a Form 911, “Request for Taxpayer Advocate Service Assistance (and Application for Taxpayer Assistance Order).” The NTA reviews the administrative record and con- cludes that the facts support granting innocent spouse relief. The NTA may issue a TAO ordering Appeals to refrain from issuing a Final Determination and re- consider or review at a higher level its decision to deny innocent spouse relief. The TAO may include TAS analysis of and recommendation for resolving the case. (d)Issuance. A TAO may be issued to any office, operating division, or func- tion of the IRS. A TAO shall apply to per- sons performing services under a qualified August 10, 20091862009–32 I.R.B. tax collection contract (as defined in sec- tion 6306(b)) to the same extent and in the same manner as the order applies to IRS employees. A TAO will not be issued to IRS Criminal Investigation division (CI), or any successor IRS division responsible for the criminal investigation function, if the action ordered in the TAO could rea- sonably be expected to impede a criminal investigation. CI will determine whether the action ordered in the TAO could rea- sonably be expected to impede an investi- gation. Generally, a TAO may not be is- sued to the Office of Chief Counsel. ***** (f)Effective applicability date.These regulations are applicable for TAOs issued on or after the date of publication of the Treasury decision adopting these rules as final regulations in theFederal Register, except that paragraph (e) is applicable be- ginning March 20, 1992. LindaE.Stiff, Deputy Commissioner for Services and Enforcement. (Filed by the Office of the Federal Register on July 24, 2009, 8:45 a.m., and published in the issue of the Federal Register for July 27, 2009, 74 F.R. 36973) 2009–32 I.R.B.187August 10, 2009 Definition of Terms Revenue rulings and revenue procedures (hereinafter referred to as “rulings”) that have an effect on previous rulings use the following defined terms to describe the ef- fect: Amplifieddescribes a situation where no change is being made in a prior pub- lished position, but the prior position is be- ingextendedtoapplytoavariationofthe fact situation set forth therein. Thus, if an earlier ruling held that a principle ap- plied to A, and the new ruling holds that the same principle also applies to B, the earlier ruling is amplified. (Compare withmodi- fied,below). Clarifiedis used in those instances where the language in a prior ruling is be- ing made clear because the language has caused, or may cause, some confusion. It is not used where a position in a prior ruling is being changed. Distinguisheddescribes a situation where a ruling mentions a previously pub- lished ruling and points out an essential difference between them. Modifiedis used where the substance of a previously published position is being changed. Thus, if a prior ruling held that a principle applied to A but not to B, and the new ruling holds that it applies to both A and B, the prior ruling is modified because it corrects a published position. (Compare withamplifiedandclarified, above). Obsoleteddescribes a previously pub- lished ruling that is not considered deter- minative with respect to future transac- tions. This term is most commonly used in a ruling that lists previously published rul- ings that are obsoleted because of changes in laws or regulations. A ruling may also be obsoleted because the substance has been included in regulations subsequently adopted. Revokeddescribes situations where the position in the previously published ruling is not correct and the correct position is beingstatedinanewruling. Supersededdescribes a situation where the new ruling does nothing more than re- state the substance and situation of a previ- ously published ruling (or rulings). Thus, the term is used to republish under the 1986 Code and regulations the same po- sition published under the 1939 Code and regulations. The term is also used when it is desired to republish in a single rul- ing a series of situations, names, etc., that were previously published over a period of time in separate rulings. If the new rul- ing does more than restate the substance of a prior ruling, a combination of terms is used. For example,modifiedandsu- persededdescribes a situation where the substance of a previously published ruling is being changed in part and is continued without change in part and it is desired to restate the valid portion of the previously published ruling in a new ruling that is self contained. In this case, the previously pub- lished ruling is first modified and then, as modified, is superseded. Supplementedis used in situations in which a list, such as a list of the names of countries, is published in a ruling and that list is expanded by adding further names in subsequent rulings. After the original rul- ing has been supplemented several times, a new ruling may be published that includes the list in the original ruling and the ad- ditions, and supersedes all prior rulings in the series. Suspendedis used in rare situations to show that the previous published rulings will not be applied pending some future action such as the issuance of new or amended regulations, the outcome of cases in litigation, or the outcome of a Service study. Abbreviations The fol lowing abbreviations in current use and for merly used will appear in material publis hedintheBulletin. A—Individual. Acq.—A cquiescence. B—Individual. BE—Beneficiary. BK—Bank . B.T.A.—Board of Tax Appeals. C—Individual. C.B.—Cu mulative Bulletin. CFR—Code of Federal Regulations. CI—City. COOP—Coo perative. Ct.D.—Court Decision. CY—County. D—Decede nt. DC—Dummy Corporation. DE—Donee. Del. Order —Delegation Order. DISC—Domestic International Sales Corporation. DR—Donor. E—Estate. EE—Employee. E.O.—Executive Order. ER—Emp loyer. ERISA—Employee Retirement Income Security Act. EX—Executor. F—Fiduc iary. FC—Foreign Country. FICA—Federal Insurance Contributions Act. FISC—Fo reign International Sales Company. FPH—Foreign Personal Holding Company. F.R.—Federal Register. FUTA—Fed eral Unemployment Tax Act. FX—Foreign corporation. G.C.M.—Chief Counsel’s Memorandum. GE—Grante e. GP—General Partner. GR—Grantor. IC—Insura nce Company. I.R.B.—Internal Revenue Bulletin. LE—Lessee. LP—Limited Partner. LR—Lessor. M—Minor. Nonacq.—No nacquiescence. O—Organization. P—Parent Corporation. PHC—Persona l Holding Company. PO—Possession of the U.S. PR—Partner. PRS—Pa rtnership. PTE—Prohibited Transaction Exemption. Pub. L.—Public Law. REIT—Re al Estate Investment Trust. Rev. Proc.—Revenue Procedure. Rev. Rul.—Revenue Ruling. S—Subsi diary. S.P.R.—Statement of Procedural Rules. Stat.—Statutes at Large. T—Target Corporation. T.C.—Tax Court. T.D.—Treasury Decision. TFE—Trans feree. TFR—Transferor. T.I.R.—Technical Information Release. TP—Taxpay er. TR—Trust. TT—Trustee. U.S.C.—Uni ted States Code. X—Corporation. Y—Corporation. Z—Corporat ion. August 10, 2009i2009–32 I.R.B. Numerical Finding List 1 Bulletins 2009–27 through 2009–32 Announcements: 2009-56, 2009-28 I.R.B.145 2009-57, 2009-29 I.R.B.158 2009-58, 2009-29 I.R.B.158 2009-59, 2009-29 I.R.B.158 2009-60, 2009-30 I.R.B.166 Notices: 2009-51, 2009-28 I.R.B.128 2009-55, 2009-31 I.R.B.170 2009-57, 2009-29 I.R.B.147 2009-58, 2009-30 I.R.B.163 2009-59, 2009-31 I.R.B.170 2009-60, 2009-32 I.R.B.181 2009-61, 2009-32 I.R.B.181 Proposed Regulations: REG-152166-05, 2009-32 I.R.B.183 REG-112994-06, 2009-28 I.R.B.144 REG-130200-08, 2009-31 I.R.B.174 Revenue Procedures: 2009-30, 2009-27 I.R.B.27 2009-31, 2009-27 I.R.B.107 2009-32, 2009-28 I.R.B.142 2009-33, 2009-29 I.R.B.150 Revenue Rulings: 2009-18, 2009-27 I.R.B.1 2009-19, 2009-28 I.R.B.111 2009-20, 2009-28 I.R.B.112 2009-21, 2009-30 I.R.B.162 2009-22, 2009-31 I.R.B.167 2009-23, 2009-32 I.R.B.177 Treasury Decisions: 9452, 2009-27 I.R.B.1 9453, 2009-28 I.R.B.114 9454, 2009-32 I.R.B.178 1 A cumulative list of all revenue rulings, revenueprocedures, Treasury decisions, etc., publishedin Internal Revenue Bulletins 2009–1 through 2009–26 is in Internal Revenue Bulletin 2009–26, dated June 29, 2009. 2009–32 I.R.B.iiAugust 10, 2009 Finding List of Current Actions on Previously Published Items 1 Bulletins 2009–27 through 2009–32 Notices: 2004-67 Supplemented and superseded by Notice 2009-59, 2009-31 I.R.B.170 2006-70 Obsoleted by T.D. 9453, 2009-28 I.R.B.114 2006-109 Superseded in part by Rev. Proc. 2009-32, 2009-28 I.R.B.142 Revenue Procedures: 97-49 Modified and superseded by Rev. Proc. 2009-31, 2009-27 I.R.B.107 2008-38 Superseded by Rev. Proc. 2009-30, 2009-27 I.R.B.27 2008-65 Modified by Rev. Proc. 2009-33, 2009-29 I.R.B.150 2009-16 Modified by Rev. Proc. 2009-33, 2009-29 I.R.B.150 1 A cumulative list of current actions on previously published items in Internal Revenue Bulletins 2009–1 through 2009–26 is in Internal Revenue Bulletin 2009–26, dated June 29, 2009. August 10, 2009iii2009–32 I.R.B. 2009–32 I.R.B.August 10, 2009 August 10, 20092009–32 I.R.B. INTERNAL REVENUE BULLETIN The Introduction at the beginning of this issue describes the purpose and content of this publication. The weekly Internal Revenue Bulletin is sold on a yearly subscription basis by the Superintendent of Documents. Current subscribers are notified by the Superin- tendent of Documents when their subscriptions must be renewed. CUMULATIVE BULLETINS The contents of this weekly Bulletin are consolidated semiannually into a permanent, indexed, Cumulative Bulletin. These are sold on a single copy basis andare notincluded as part of the subscription to the Internal Revenue Bulletin. Subscribers to the weekly Bulletin are notified when copies of the Cumulative Bulletin are available. Certain issues of Cumulative Bulletins are out of print and are not available. Persons desiring available Cumulative Bulletins, which are listed on the reverse, may purchase them from the Superintendent of Documents. ACCESS THE INTERNAL REVENUE BULLETIN ON THE INTERNET You may view the Internal Revenue Bulletin on the Internet at www.irs.gov. Select Businesses. Under Businesses Topics, select More Topics. Then select Internal Revenue Bulletins. INTERNAL REVENUE BULLETINS ON CD-ROM Internal Revenue Bulletins are available annually as part ofPublication 1796 (Tax Products CD-ROM). The CD-ROM can be purchased from National Technical Information Service (NTIS) on the Internet at www.irs.gov/cdorders (discount for online orders) or by calling 1-877-233-6767. The first release is available in mid-December and the final release is available in late January. HOW TO ORDER Check the publications and/or subscription(s) desired on the reverse, complete the order blank, enclose the proper remittance, detach entire page, and mail to the Superintendent of Documents, P.O. Box 371954, Pittsburgh PA, 15250–7954. Please allow two to six weeks, plus mailing time, for delivery. WE WELCOME COMMENTS ABOUT THE INTERNAL REVENUE BULLETIN If you have comments concerning the format or production of the Internal Revenue Bulletin or suggestions for improving it, we would be pleased to hear from you. You can email us your suggestions or comments through the IRS Internet Home Page (www.irs.gov) or write to the IRS Bulletin Unit, SE:W:CAR:MP:T:T:SP, Washington, DC 20224. 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