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4.81.1  TEB Administrative Procedures

4.81.1.1  (01-01-2003)
TEB Program

  1. The tax exempt bond examination program is responsible for examinations of arrangements purporting to involve debt obligations of states, their political subdivisions and other entities entitled to issue tax exempt debt instruments under Section 103 of the Internal Revenue Code. These instruments include bonds, notes, installment sales, lease financing arrangements, and any other qualified arrangements.

4.81.1.2  (01-01-2003)
Goals

  1. The tax exempt bond examination program combines compliance initiatives with enforcement measures to accomplish the following goals:

    1. Achieve significant levels of pre-issuance and post-issuance compliance;

    2. Respond promptly to abusive transactions;

    3. Increase the effective use of information returns;

    4. Encourage transaction participants to take an active role in ensuring that their bond issues comply with the Code and regulations; and

    5. Promote voluntary compliance with the requirements of the Code and Regulations.

4.81.1.3  (01-01-2003)
Terminology

  1. "Issuer" - The state or political subdivision or entity that issues bonds on behalf of a state or local government.

  2. "Municipal financing arrangement" - The financing arrangement.

  3. "Bondholder" - Each owner of an obligation.

  4. "Conduit borrower" - A borrower of proceeds from the financing (other than a borrower of proceeds of mortgage revenue bonds or student loan bonds).

  5. "Nominee" - An entity which is listed as the registered owner but which is not the beneficial owner of the bonds.

  6. "Bond transcript" or "closing book" - The collection of bound legal documents relating to a municipal financing transaction.

4.81.1.4  (01-01-2003)
Responsibilities

  1. Each level of authority has specific as well as general responsibilities.

4.81.1.4.1  (01-01-2003)
Director, Government Entities (GE)

  1. Establishing the goals and objectives of the Tax Exempt Bond (TEB) program in cooperation with the Director, TEB;

  2. Approving the policies, objectives, and procedures of the TEB program;

  3. Compiling and disseminating information to other functions as needed; and

  4. Coordinating with other functional areas and other government agencies.

4.81.1.4.2  (01-01-2003)
Director Tax Exempt Bonds (TEB)

  1. The Director, Tax Exempt Bonds, is responsible for:

    1. Carrying out the Tax Exempt Bond Program;

    2. Coordinating and reviewing the activities of the Manager, Field Operations and the Manager, OPR;

    3. Reviewing and executing closing agreements forwarded from the Voluntary Closing Agreement Program that the Manager, OPR, in his discretion, determines required higher level involvement.

    4. Reviewing and executing closing agreements forwarded from field examinations by the Manager, FO.

    5. Implementing and approving compliance initiatives, such as information gathering and compliance projects;

    6. Reporting information, as appropriate and necessary, through both formal and informal means, to the Director, GE, and to the TE/GE Division Commissioner;

    7. Approving and ensuring implementation of the annual workplan;

    8. Reviewing published guidance proposed by the Office of Chief Counsel and the Department of Treasury to determine the administrability of such guidance;

    9. Coordinating with other functional areas; and

    10. Partnering with stakeholders in the bond industry.

4.81.1.4.3  (01-01-2003)
Manager, Outreach, Planning, and Review (OPR)

  1. The Manager, OPR, is responsible for:

    1. Negotiating and executing closing agreements pursuant to Voluntary Closing Agreement Program, or forwarding them to the Director, TEB, for review and execution, as appropriate;

    2. Providing quality review of examination cases;

    3. Formally reviewing examination cases designated as mandatory review cases, including cases involving technical advice requests and/or proposed adverse letters;

    4. Participating in special initiatives such as statistical samples and nationwide information gathering projects;

    5. Using a database of TEB information returns as a basis for selecting cases for general examination programs;

    6. Working with the Director, TEB, and Manager, FO, to formulate the annual workplan;

    7. Assisting in obtaining and delivering returns for examination to the Manager, FO;

    8. Implementing a national education and outreach plan;

    9. Assisting the Director, TEB, on guidance projects;

    10. Coordinating referrals with Manager, FO;

    11. Maintaining information item/referral procedures and records in 4.81.1.6;

    12. Developing customer education publications;

    13. Coordinating program training courses;

    14. Coordinating development and revisions to returns and any related processing changes;

    15. Coordinating with CAS Call Site training, what questions TE/GE CAS employees handle, and what inquiries should be referred to TEB OPR;

    16. Coordinating return processing with CAS employees in Ogden and with SBSE Submissions Processing; and

    17. Tracking legislative implementation.

4.81.1.4.4  (01-01-2003)
Manager, Field Operations (FO)

  1. The Manager, FO, is responsible for:

    1. Managing the FO managers and the TEB examination program;

    2. Negotiating and/or reviewing closing agreements in examination cases and forwarding to Director, TEB, for review and execution;

    3. Assigning cases to field groups;

    4. Reviewing field group inventory to determine if annual workplan goals are being met;

    5. Working with the Director, TEB, and Manager, OPR, to formulate the annual workplan;

    6. Assigning claims for refund of arbitrage rebate to groups for resolution;

    7. Coordinating work within field groups;

    8. Issuing instructions to field agents;

    9. Ensuring proper procedures are followed on closed cases;

    10. Formally reviewing examination cases designated as mandatory review cases, including cases involving technical advice requests and/or proposed adverse letters; and

    11. Reviewing all preliminary adverse determinations.

4.81.1.4.5  (01-01-2003)
TEB Group Managers

  1. The TEB Group Managers are responsible for:

    1. Managing the performance of the employees within the respective groups;

    2. Assigning cases to agents;

    3. Providing advice and guidance to agents on examination work;

    4. Assisting agents in the negotiation of closing agreements;

    5. Reviewing work in progress and closed cases for procedural and technical accuracy;

    6. Forwarding closed cases to OPR for final disposition;

    7. Directing resources to achieve the annual workplan;

    8. Identifying emerging issue(s) for nationwide consideration; and

    9. Participating in the formulation of project initiatives and other workplan-related programs.

4.81.1.5  (01-01-2003)
Case Selection

  1. Cases selected for examination originate from the following sources:

    1. Information gathering projects and compliance initiatives;

    2. Classification of returns filed by issuers or returns of issuances involving conduit borrowers;

    3. Referrals from other federal agencies, informants, news articles, or internal IRS sources;

    4. Information items prepared by TEB revenue agents for follow-up action; and

    5. With concurrence of the Group Manager and Manager, FO, pickups of cases related to a current examination in the group or expansion of a claim into a field examination.

  2. Cases selected for examination will include:

    1. returns;

    2. claims for recovery of arbitrage payments.

    3. information items and referrals; and

    4. non-return units including, but not limited to IRC 6700 related cases;

4.81.1.5.1  (01-01-2003)
Annual Workplan

  1. The annual workplan initially determines the inventory needs based on issues and trends from examinations, customer education, outreach, and other internal or external sources.

4.81.1.5.2  (01-01-2003)
Classification

  1. The Manager, OPR will formulate selection criteria based on the annual workplan in coordination with the Manager, FO.

  2. The Manager, OPR, will provide Manager, FO, with RICS listings based on the selection criteria in order to meet inventory needs.

  3. Field agents from the groups will be made available to assist the Manager, FO, to work the listing and select the returns to be ordered.

  4. OPR will control the ordered returns on AIMS.

  5. OPR will reassess selection criteria for compliance project initiatives based on surveyed cases returned for closing.

4.81.1.5.3  (01-01-2003)
Assignment

  1. OPR will provide returns to the Manager, FO, for assignment to the field groups.

  2. Field Group Managers will validate the criteria for selection and assign cases to field agents.

  3. Managers will return surveyed returns to OPR for closing.

  4. Any surveyed returns which are part of a compliance project initiative must be identified on Form 3198 on the case folder sent to OPR for reassessment of selection criteria prior to closing.

4.81.1.5.4  (01-01-2003)
Returns

  1. TEB return/non-return units include:

    1. Forms 8038, 8038G, 8038GC, 8038T, 8038R, etc;

    2. Coordinated Examination Program (CEP) support for EO;

    3. General cases;

    4. Other focus areas;

    5. Support for other operating divisions; and

    6. Discrepancy adjustment returns.

4.81.1.6  (01-01-2003)
Information Items/Referrals

  1. This section provides instructions on how to review, evaluate, and retain tax exempt bond information items/referrals.

  2. Information item/referrals may come from a variety of sources, including:

    • TE/GE agents conducting examinations or determinations;

    • Other IRS functional areas;

    • The Media;

    • Other Federal agencies;

    • State and local government agencies and officials;

    • Concerned members in the municipal finance industry;

    • General public;

    • Members of Congress; and

    • Executive Branch.

4.81.1.6.1  (01-01-2003)
Information Items/Referrals Defined

  1. An information item/referral is either:

    1. A document or other communication (e.g. telephone call), received from a source outside the Service, which alleges potential noncompliance with the tax law; or

    2. A document prepared by a TE/GE employee or other IRS employee, which identifies current or potential noncompliance during the processing of an assigned case.

4.81.1.6.2  (01-01-2003)
General Procedures

  1. An information item/referral from any source, including from within TEB, should be forwarded to OPR for consideration.

  2. Information items/referrals are to be numbered and controlled using the TEB Referral, Information Reports and Information Items Record (Exhibit 4.81.1-1)(Record) and the Tax-Exempt Bond Information Item Tracking Sheet (Exhibit 4.81.1-2)(Sheet). OPR will establish and maintain a database of information items/referrals.

  3. The Manager, OPR, and the Manager, FO, will establish a Classification Panel to determine the examination potential of each information item/referral.

  4. The Classification Panel will begin evaluating items within 90 days of the date of receipt in the OPR unit.

  5. Items lacking examination potential will be surveyed and returned to OPR for disposition. Information items/referrals selected by the consensus of the Classification Panel will be established on AIMS and forwarded to the Manager, FO. OPR will prepare and also forward to the Manager, FO, both the Record and Sheet discussed in (2) above. Information items/referrals failing to receive a full consensus of the panel for establishment will be returned to OPR for disposition. No appeal of any Classification Panel member's decision is permitted.

  6. The Manager, FO, will review information items/referrals for assignment or survey. Surveyed information items/referrals will be returned to OPR for validation and disposal. Accepted information items/referrals will be assigned to field groups.

  7. Field group managers will assign selected information items/referrals to agents for examination. If an information item/referral is surveyed, it will be returned to OPR through Manager, FO, for validation and disposition. The group manager will complete and return to OPR the Record and Sheet on surveys. Information items/referrals which are examined will retain the Record and Sheet and agents, group managers and Manager, FO, must complete and forward to OPR the Record and Sheet upon case closing.

  8. Field group managers when assigning information items/referrals will indicate on the Record and Sheet who is assigned the case and return copies of the annotated Record and Sheet to OPR.

  9. The examination results of the information item/referral will be captured at closing in OPR by pulling the Record and Sheet. Information on the Record and Sheet will be used to update the TEB Referral Inventory Sheet/Log and the materials filed in the Inventory Sheet/Log binders.

  10. Agents will complete and forward to OPR Form 5666 regarding items warranting examination follow-up in future years.

4.81.1.6.3  (01-01-2003)
Controls, Tracking, and Records

  1. The TEB information item referral record keeping system (Inventory Sheet/Log) allows management to track all individual items to:

    1. Demonstrate in a uniform and consistent manner the receipt of an information item/referral; and

    2. Document the progression of an information item through the system, including specifically: what the source of the item was; where the evaluation was made as to the utility of the item; who made the decision; what the rationale was for the decision; how the decision was implemented; and the current location /status.

  2. Each information item will be retrievable for 3 years from the date the information item/referral is evaluated.

  3. OPR is responsible for the following:

    1. Maintaining the Inventory Sheet/Log to track the receipt and disposition of all information items/referrals;

    2. Ensure that all decisions relating to case selection or non-selection (including the evaluation and disposition of all information items/referrals and source documents, regardless of merit) are documented and associated with materials filed in the Inventory/Sheet/Log binders;

    3. Verify proper coding of all information items/referrals, received from sources inside and outside the Service in order to obtain accurate information regarding origination of information items/referrals; and

    4. If the referral information does not provide a valid EIN or clearly identify the issuer, the OPR AIMS Coordinator will research IDRS, RICS, Lexis, and other Internet sources to identify the entity. If the Coordinator locates additional information, he/she will provide that information to the Classification Panel. Additionally, the agent assigned the case should notify the Coordinator of any additional information as to the name, EIN, and date of issue as soon as that information becomes available.

  4. The Inventory Sheet/Log will contain the following information:

    1. A specific identification number that runs sequentially each fiscal year, e.g. 2002001, 2002002, etc. If an information item/referral alleges noncompliance on the part of more than one subject, all the subjects will be listed under a single identification number;

    2. The name and address of the source (entity/individual that provided the information item/referral) or the name and office symbols of the employee that identified the issue(s) deemed appropriate for referral;

    3. The name, EIN, and address of the subject of the information item/referral. No SSN will be listed for an individual;

    4. The receipt date of the information item/referral from an external source, or date of identification of the issue(s) deemed by an IRS source to be appropriate for referral;

    5. The AIMS source code to describe the root source of the information item/referral; and

    6. The date the information item/referral was referred to another office.

  5. OPR Records

    1. OPR will prepare the Record and Sheet.

    2. The EIN of the entity or purported entity and the date the information item/referral was received in OPR are unique index fields to identify the information item/referral. This coding will identify the information item/referral and any information item(s)/referral(s) received for the EIN in OPR on the same day.

    3. Any information item that cannot be evaluated in the current quarter will be placed in Suspense Status and the information filed in the Inventory Sheet/Log binders.

    4. OPR will periodically review the Form 5666 Tickler File maintained in OPR and pull those items currently warranting examination follow-up. After establishment on AIMS the information will be sent to Manager, FO, for assignment to a group.

    5. OPR will coordinate Forms 211 (Application for Reward for Original Information) filed regarding TEB returns.

  6. OPR will use the Record and Sheet on each incoming item. The Record and Sheet and copies of the source documents flow with the referral to FO. In the event an examination occurs, the agent and group manager must complete the Record and Sheet and note on Form 3198 that the completed Record and Sheet and original source documents are part of the examination file.

  7. TEB OPR will retain copies of all information items/referrals and source documents regardless of whether the bond issue is selected for examination. Retained items will be stored in a secure, systematic, and retrievable manner for three years from the date the information item/referral is evaluated for examination potential. Information items/referrals and source documents should be retrievable by name of the issuer and any conduit borrower or other entity or organization that is the subject of the information item/referral.

4.81.1.6.4  (01-01-2003)
Source Codes

  1. The following source codes are to be used when OPR forwards an information item/referral from the general public:

    1. Source Code 72 Informant's Report: Item from general public;

    2. Source Code 72 Informant's Report: News item from member of the general public with a cover letter containing comments on the activities reported;

    3. Source Code 74 Media Lead: News items from the general public with a cover letter without any comments on the activities reported; and

    4. Source Code 74 Media Lead: Magazine article.

  2. Use the following codes when information is received from a member of Congress:

    1. Source Code 68 Congressional Referral: A member of Congress initiates the information item (regardless of intermediary source, e.g. Headquarters);

    2. Source Code 74 Media Lead: News article forwarded by a member of Congress without comments on the activities reported in the article; and

    3. Source Code 68 Congressional Referral: News article forwarded by member of Congress with comments on the activities reported in the article.

  3. Use the following codes when information is received from the Executive Branch:

    1. Source Code 80 Executive Branch Referral: The Executive Branch originates or initiates an information item (regardless of intermediary source, e.g. Headquarters);

    2. Source Code 74 Media Lead: News article forwarded by the Executive Branch without comments on the activities reported in the article; and

    3. Source Code 80 Executive Branch Referral: News article forwarded by the Executive Branch with comments on the activities reported in the article.

  4. Items received from all other Federal Agencies, Justice Department, or State/Local Government Agency as a result of the Governmental Agency carrying out its responsibility — use the Source Code for the appropriate Governmental Agency.

  5. Forms 5666/memorandum received from TE/GE employees:

    1. Source Code 60 Information Report (Intra-TE/GE Referral): Forms 5666/memorandum as a result of an examination, a determination letter case or private letter ruling request; and

    2. Source Code 62 Referral Director/OPR: Item from Director or OPR.

  6. Items received from Appeals, Wage & Investment, Large & Mid-Size Business, Small Business/Self Employed, Criminal Investigation Division, Other TE/GE Functions (EP, EO, FSLG, or ITG) or other IRS Business Units as a result of the organization carrying out its responsibility — Use the Source Code for the IRS function.

4.81.1.7  (01-01-2003)
Criminal Investigation Referrals

  1. When oral testimony alleges violations of Internal Revenue Service's laws by taxpayers or when non-tax information alleges a violation of a law not administered by the Service:

    • Record the information on Form 3949, Criminal Investigation Information Item;

    • Forward the form to the local Criminal Investigation (CI) contact for transmission to CI at the appropriate service center; and

    • Transmit other written information reports received as outlined above.

  2. Refer any information item that CI determined not to have criminal prosecution potential but to have TEB examination potential to OPR.

  3. If an informant has filed a claim for reward, forward the information item and Form 211 to OPR for evaluation and consideration of examination potential.

4.81.1.8  (01-01-2003)
Claims for Recovery of Arbitrage Payments

  1. This Chapter contains the TEB procedures and instructions for classifying and selecting claims for recovery of arbitrage payments (Form 8038–R, Request for Recovery of Overpayments Under Arbitrage Rebate Provisions).

4.81.1.8.1  (01-01-2003)
General Procedures

  1. Forms 8038–R are received by the Service Center and forwarded to the Manager, FO.

  2. Claims are controlled on AIMS and classified.

  3. Claims lacking examination potential will be surveyed and allowed in full.

  4. Selected claims are forwarded by the Manager, FO, to field group(s) for assignment.

  5. Field group manager(s) will assign selected Forms 8038–R to agent(s).

  6. Examination matters beyond verifying correctness of a claim requires approval of Manager, FO.

  7. Claims in excess of $1,000,000 are subject to review by Manager, FO, and Manager, OPR.

4.81.1.9  (01-01-2003)
Case Assignment Guide

  1. OPR is responsible for controlling returns on AIMS and forwarding to FO for classification and assignment or survey.

  2. The Manager, FO, will assign cases to groups taking the following into account:

    • The most efficient use of personnel and financial resources;

    • The lack of geographic boundaries to field groups; and

    • The types of bond issues and any specialized expertise within the groups.

4.81.1.9.1  (01-01-2003)
Assignments at Group Level

  1. The group manager will assign cases to agents taking the following into account:

    • The experience of the agent;

    • The complexity of the case;

    • The ability to meet the requirements of the annual workplan; and

    • The most efficient use of personnel and financial resources.

  2. Prior to assigning a case, the group manager will ensure that:

    1. The case is on AIMS (MF or NMF). Generally, all bond cases under examination will be controlled on AIMS Master file and not AIMS NMF. However, in the case of rebate claims for arbitrage paid prior to March 2001, claim cases may be AIMS NMF if the related Forms 8038-T were filed prior to March 2001. IRC 6700 civil penalty cases are not controlled on AIMS. These cases are controlled manually on an Access database in OPR.

4.81.1.9.2  (01-01-2003)
Establishing Field Cases on AIMS

  1. If a case is received that is not controlled on AIMS, the group manager will prepare and process the appropriate forms prior to assigning the case to an agent.

    1. The manager will complete Form 5597, IMF/BMF/EPMF Request, and fax it to the OPR AIMS Coordinator in OPR. If the return is a Form 8038, 8038-G, or 8038-GC filed prior to January 2001, the manager will fax a complete and legible copy of the return to the Coordinator. If the issuer filed an amended return, forward a copy of the original and amended return. The Coordinator will mail the copy of the return and amended return, if applicable, to the Ogden Service Center for reprocessing to the Master File;

    2. The manager will complete Form 5588, EO Non-Master File Request, and fax to the Coordinator for claims for which the related Form 8038-T was filed prior to March 2001 and has not been reprocessed to Master File. The manager will fax a complete and legible copy of the claim and related Form 8038-T to the Coordinator;

    3. If the case is an IRC 6700 civil penalty case, the manager will fax the name, address, and the tax year to the Coordinator;

    4. The group manager may assign cases that do not have sufficient information to identify the taxpayer. The agent will forward the name, EIN, address, and the issue name and date to the manager as soon as the information is obtained;

    5. The agent is responsible for preparing the appropriate form and faxing it with a copy of the return (if required) to the group manager for approval and forwarding to the OPR AIMS Coordinator;

    6. The agent is also responsible for ensuring the entity information submitted with the AIMS/AIMS NMF request is correct;

    7. The OPR AIMS Coordinator will assist in determining if the issuer's name, EIN and date of issue on the request are correct. The manager can fax to the coordinator a request for IDRS research to determine if the name and EIN match what is currently reported on IDRS and, in some cases, RICS for the issuer;

    8. Differences in the return and IDRS/RICS research data need to be expeditiously resolved to ensure that the Master File reflects current and correct information for the entity. The resolution may require that the agent assigned to the case verify with the issuer the name, EIN, and date of issue. Agents should notify the Coordinator of any name, EIN, or date of issue changes discovered during the course of their examinations; and

    9. If the OPR AIMS Coordinator finds that entity information for the return filer is not available on IDRS, the Coordinator will request establishment of an entity account through the Ogden Service Center. This action will not delay the start of the examinations.

  2. The manager will also ensure the return is complete as to line items transcribed:

    1. Line items on Forms 8038, 8038-G, and 8038-GC filed after January 2001 and Forms 8038-T filed after March 2001 are transcribed through normal service center processing and posted to the Master File and downloaded to RICS; and

    2. Line items on Forms 8038, 8038-G, and 8038-GC filed prior to January 2001 and Forms 8038-T filed prior to March 2001, are transcribed to the Master File during the reprocessing of those returns. Ensure that all applicable line items for Forms 8038, 8038-G, and 8038-GC filed prior to January 2001 and line items for Forms 8038-T filed prior to March 2001 are complete.

4.81.1.10  (01-01-2003)
Case Grading Criteria

  1. This section provides the initial case grading criteria for TEB examinations.

4.81.1.10.1  (01-01-2003)
Case Upgrade

  1. Issues and problems which may increase the grade levels noted below include but are not limited to:

    • Complicated arbitrage calculations; and

    • Complex financial structures and/or products.

4.81.1.10.2  (01-01-2003)
Form 8038–G

  1. GS–13 — Bond Issuance over $50,000,000

  2. GS–12 — Bond issuance less than $50,000,000

4.81.1.10.3  (01-01-2003)
Form 8038

  1. GS 13 — Bond issuance over $25,000,000

  2. GS 12 — Bond issuance less than $25,000,000

4.81.1.10.4  (01-01-2003)
Form 8038–T

  1. Form 8038–T and Form 8038-R will be graded the same as the primary return (Form 8038 or 8038–G).

4.81.1.11  (01-01-2003)
Conducting the Examination

  1. Develop the case initially at the issuer level and expand the case to include development at the conduit borrower level for qualified private activity bonds when needed. Issuers are not subject to tax relating to municipal bond transactions. Examinations of municipal bond transactions may result in a discrepancy adjustment against bondholders and/or conduit borrowers.

  2. Treat issuers as taxpayers with respect to the bond issue for the following purposes:

    • disclosure;

    • technical advice requests;

    • appeals; and

    • other purposes, as appropriate.

  3. Treat issuers as taxpayers with respect to the bond issue for purposes of third party contacts except as discussed in Section 4.81.1.15.

  4. Do not treat issuers as taxpayers for purposes of assessing tax on the bondholders or issuing summons for records relating to the bond transaction. Issuers will generally be treated as the person entitled to notice under IRC 7609.

4.81.1.12  (01-01-2003)
Pre-Examination Research

  1. To avoid or reduce the potential market impact of an examination, the agent will normally perform pre-examination research on every case.

  2. The examiner should consider reviewing the following documents as part of the pre-examination research:

    • Issuer information returns; (Forms 8038, 8038G, 8038-GC)

    • Issuer Forms 8038–T and 8038-R;

    • Lexis/Nexis search relating to the identified financing;

    • Filings with the nationally recognized municipal securities information repository "(NRMSIR)" and the state information depository "(SID) " ;

    • Forms G-36(OS) and G-36(ARD) filed with the Municipal Securities Rulemaking Board Municipal Securities Information Library;

    • IDRS research on conduit borrowers and related parties;

    • Other pertinent state or federal agency reports or files;

    • ChoicePoint;

    • Internet; and

    • Media

4.81.1.13  (01-01-2003)
Audit Planning

  1. Agents should prepare a comprehensive audit plan and coordinate the plan with their Group Manager in order to get his/her input.

  2. Pre-audit planning is an extremely important aspect of any bond examination due to the complexity of the transactions being analyzed.

  3. Since examination disclosures can affect the market place, it is extremely important for agents to discuss the audit plan with their managers and seek guidance and advice in drafting opening contact letters as part of any pre-examination planning.

  4. Special situations such as variable rate bonds or new and unusual issues should be discussed with management during the pre-planning process.

4.81.1.14  (01-01-2003)
General Examination Procedures

  1. The agent will inform the issuer of the examination at the beginning of an examination. For examinations arising from an information gathering program, a compliance project, or any other project based on statistical sampling, the project guidelines when appropriate will include specific instructions concerning the initial contact letter. Sample contact letters for all other examinations are included in Exhibits 4.81.1-3, 4, 5 and 6. The letter to the issuer may incorporate the agent's initial request for information.

4.81.1.14.1  (01-01-2003)
Examination Steps

  1. The specific steps to follow when conducting a tax exempt bond examination are as follows:

    1. Inform the issuer of the specific tax exempt bond issue under examination. In most cases, send an opening letter to the issuer that informs the issuer of the reason for the examination. Where appropriate, agents should provide additional information in the letter concerning the reasons for the examination;

    2. Obtain and review the bond transcript. If the issuer does not have the bond transcript, contact any party to the transaction to obtain a copy. Follow third party contact procedures, if required; and

    3. Develop legal and factual questions. Use third party investigative inquiries as necessary. Issue summons when needed to obtain information. Treat the bond issue as the "matter" for which the summons is issued.

    If the Agent determines with manager's concurrence that: Then:
    Preliminary Adverse Determination is Appropriate Consult with Manager, FO, and Area Counsel to determine whether Technical Advice should be requested.
      If Technical Advice is not requested, notify the issuer of the preliminary adverse determination, after approval by Manager, FO, and provide the issuer an opportunity for a closing agreement or to request Technical Advice. A sample preliminary adverse determination letter is included in Exhibit 4.81.1-7.
      If no closing agreement, complete examination and issue proposed adverse determination.
    Technical Advice Request Should be Submitted Submit Technical Advice request to OPR for review and concurrence.
      When Chief Counsel issues the Technical Advice Memorandum, notify issuer in writing of determination. Include a copy of the technical advice with the notice.
      If adverse to the issuer, notify issuer by issuing a preliminary or proposed adverse determination, when appropriate.
    Proposed Adverse Determination is Appropriate Notify the issuer of proposed adverse determination and inform issuer of appeal rights availability. Sample proposed adverse determination letter is included in Exhibit 4.81.1-8.

4.81.1.14.2  (01-01-2003)
Taxing Interest Income

  1. Generally the process of identifying bondholders will begin on or before the date on which the agent has made an adverse determination and the issuer has appealed to the Office of Appeals. The group manager must approve the agent's opening another case to control securing bondholder names. If a municipal financing arrangement does not comply with the Code and regulations, interest income is generally includable in the bondholders' gross income from the issue date of the bonds. The period of limitations may limit the ability to collect tax; accordingly, it is important to start the process of collecting bondholder names early if the issue under examination has been retired or will be retired shortly. The period of limitations for assessing the tax against a bondholder is suspended only if the bondholder signs an extension of the statute of limitations on its return.

  2. Prior to making a discrepancy adjustment to an individual bondholder's return, the agent's manager must secure FO Manager's approval.

  3. To collect tax from taxpayers:

    1. If returns have been filed make discrepancy adjustments and send bondholders statutory notices of deficiency; or

    2. If returns have not been filed and the bonds are still outstanding, instruct the issuer to notify the nominee paying interest to the beneficial owners of the bonds to send Forms 1099–INT to those bondholders. If the nominee is known, also notify the nominee directly.

4.81.1.15  (01-01-2003)
Third Party Contacts

  1. General Procedures

    1. TEB employees should not make third-party contacts without providing reasonable notice in advance to the taxpayer. Generally, the notice will be provided with the letter opening the examination of the bond transaction;

    2. A "third party contact" is a contact within the meaning of section 7602(c);

    3. The Agent must keep track of the third party contacts. The agent must use Form 12175, Third Party Contact Report Form, to capture this information. When completed, the agent must send the form to the Manager, OPR, to the attention of the TEB Third Party Contact Coordinator;

    4. The agent may request that the issuer or other taxpayer sign Form 12180, Third Party Contact Authorization Form, to provide authorization from the issuer or other taxpayer prior to contacting identified third parties. If the third-party contact is authorized, no notice of contact is required;

    5. OPR will provide information relating to third-party contacts periodically (at least once per year) to the issuer or other taxpayer;

    6. OPR will also provide information whenever the issuer or taxpayer may ask; and

    7. In applying section 7602(c) to particular examinations of municipal transactions, the agent and his/her group manager should adopt an approach that balances the taxpayer's business and reputational interests with the third party privacy interests and the IRS's responsibility to administer the internal revenue laws effectively.

  2. Bondholders

    1. While bondholders may ultimately be liable for internal revenue taxes upon the completion of an investigation to determine the tax status of a bond issue, the issuer and/or other parties to the transaction generally settle disputes regarding the tax status of a bond issue. Therefore, contacts made to determine the tax status of a bond issue are not contacts that are made with respect to the determination of the tax liability of bondholders so as to require the advance notice or a record of persons contacted to be sent to bondholders; and

    2. A bondholder is treated as a taxpayer under section 7602(c) when identified and when a preliminary determination has been made to pursue the bondholder for assessment and/or collection of past due taxes. Generally, bondholders are identified when two events occur: (1) actual bondholder names have been gathered and (2) the audit of the issuer has progressed to the point that specific issues have been identified and a preliminary determination has been made to pursue those issues further. When a bondholder has been identified and a preliminary determination regarding assessment and collection has been made with respect to such bondholder, the agent must treat the bondholder as the taxpayer and must meet the advance notice and recordkeeping requirements of section 7602(c) with respect to that bondholder.

  3. Issuers

    1. Information sought in determining the tax status of a bond issue is not with respect to the determination or collection of the issuer's tax liability. Accordingly, issuers are, technically, not covered by the third-party notification requirements found in section 7602(c). However, the underlying purpose of the advance notice and record keeping requirements of section 7602(c) will more often than not be better served by treating the issuer as the taxpayer and providing the issuer with the advance notice and a record of persons contacted;

    2. When a determination is made during an examination that it is necessary to make a third party contact, the agent should give the issuer notice that the Service might contact third parties. Generally, the agent will include this notice with the opening letter. In the case of pool obligations, the best application of the third-party notification provisions is to treat the issuer of the pool obligation as the sole taxpayer regardless of whether the underlying notes are treated as taxable or tax-exempt obligations; and

    3. In determining whether an issuer should be treated as a taxpayer for purposes of section 7602(c) for any particular examination, a careful review of the facts and circumstances surrounding such examination should be made. In most instances, the issuer should be treated as the taxpayer for purposes of section 7602(c). The final determination should be based on the adopted approach that balances the taxpayer's business and reputational interests with the third party privacy interests and the IRS's responsibility to administer the internal revenue laws effectively.

  4. Conduit Borrowers

    1. If the examination of the bond issuance uncovers a problem with the bond, the conduit borrower may have a liability, independent from the bondholders, for additional taxes pursuant to the provisions of section 150(b). Accordingly, in the case of private activity bonds, the agent will treat the conduit borrower as the taxpayer for purposes of the third party record keeping requirements not later than the date that the agent opens a separate examination for purposes of determining the conduit borrower's liability under section 150(b) of the Code; and

    2. If another operating division has an open examination of the conduit borrower, use the Specialist Referral System to request assistance with the TEB examination.

  5. Certificates of Participation

    1. The tax-exempt status of the interest paid on certificates of participation is derived from the flow-through of tax-exempt interest paid on underlying notes or other tax-exempt obligations that are issued by one or more qualified issuers;

    2. In the case of certificates of participation that represent proportionate interests in an underlying note of only one qualified issuer, the issuer of the underlying note should be treated as the taxpayer for purposes of section 7602(c);

    3. When the certificates represent undivided and proportionate interests in more than one underlying tax-exempt obligation, the possibility exists for both the certificate issuer and the issuer of the underlying notes to be treated as deemed taxpayers for purposes of section 7602(c); and

    4. The agent should exercise good judgement in the determination as to how or to whom the agent should apply the third-party notice requirements of section 7602(c) of the Code and should seek guidance, where appropriate. For example, if the examination is primarily focused on the status of the certificates, and not the tax exempt status of the underlying notes, the agent would generally treat the certificate issuer as the only taxpayer for purposes of section 7602(c).

  6. Abusive Tax Shelters - TEB

    1. In examinations where the sole adjustment is the potential application of the section 6700 penalty to an abusive arrangement (where one or more underlying bond examinations have not been opened), the agent should apply the third party notice requirements to the taxpayer under examination for potential liability under section 6700. Generally, the agent should apply the rules discussed above, regarding the application of the third party notification requirements to issuers, to the bond issuances only after such date that any such issuance is separately opened for examination.

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