IRS may restrict employer identification number issuance

Plain-English summary

Chief Counsel considered whether the IRS could deny an employer identification number when the responsible party lacked a Social Security number or individual taxpayer identification number, or had not filed a return. It concluded that sections 6011 and 6109 and their regulations gave the IRS broad authority to require identifying information and impose those restrictions. The advice said such limits would reasonably connect EIN issuance to its statutory identification purposes. It also warned that the policy would be controversial and recommended a risk assessment before implementation.

Ruling snapshot

• Question: May the IRS restrict EIN issuance based on the responsible party's identifying number or return-filing history?
• Outcome: advice given
• Key authorities: IRC §§ 6011(b), 6109(a)(1), 6109(c); Treas. Reg. § 301.6109-1(d)(4)(ii)

Full text (IRS public release)

ID: CCA_2016102509455541
UILC: 6011.04-02, 6109.03-00

Number: 201650020
Release Date: 12/9/2016
From:
Sent: Tuesday, October 25, 2016 9:45:56 AM
To:
Cc:
Bcc:
Subject: RE: EIN Issuance Volume

Hello --------;

You have asked whether Accounts Management could restrict the issuance of Employer
Identification Numbers (EINs) to applicants that have a Social Security Number or an
Individual Tax Identification Number. You have also asked whether it would be legally
permissible for Accounts Management to deny an EIN request if the responsible party
has not filed a return.

It is our view that I.R.C. §§ 6011(b), 6109(a)(1) and 6109(c) and the underlying
Treasury regulations give the Internal Revenue Service (Service) broad authority to
deny an EIN request if the applicant does not have a Social Security Number (SSN), an
Individual Taxpayer Identification Number (ITIN), or has not filed a return.

I.R.C. § 6109(a)(1) generally provides that any person required to file a return,
statement, or other document shall include such identifying number as may be
prescribed for securing proper identification. See also Treas. Reg. § 301.6109-
1(d)(4)(ii). I.R.C. § 6011(b) authorizes the Service to require such information with
respect to persons subject to taxes as is necessary or helpful in securing proper
identification of such persons. I.R.C. § 6109(c) of the Code provides that the Secretary
or his delegate is authorized to require such information as may be necessary to assign
an identifying number to any person.

The broad language contained in sections 6011(b) and 6109(a)(1) and 6109(c) taken
together indicates that Congress has vested in the Service broad discretionary authority
deemed necessary or helpful for the proper identification of a taxpayer, employer,
employee, or other person for purposes of filing returns and documents. Cf. Rev. Rul.
73-526, 1973-2 C.B. 404 (a new EIN should be requested by the new corporation in a
consolidation and in any reincorporation transaction not qualifying as a section
368(a)(1)(F) reorganization). Adoption of rules that would limit issuance of an EIN to a
human being that has a SSN or ITIN and has filed a return reasonably restricts use of
EINs to its statutory purposes.
2

Although it is our view that this policy is supportable under the Code, it is bound to be
controversial. Please consider conducting a risk assessment to determine if it is
advisable to implement this proposal.

Please contact this office if we can be of further assistance.