Taxpayer assistance order may expedite review but not compel refund

Plain-English summary

Chief Counsel advised the Taxpayer Advocate Service to continue communicating with the responsible IRS office or consider an operations assistance request before issuing a taxpayer assistance order. If a TAO was necessary, there was no identified legal bar to directing Appeals to expedite its review of a refund claim that Appeals was required to consider. The TAO could not order Appeals to grant the refund because that would be a substantive determination. The advocate could still explain in the order why the law and facts supported allowing the claim and address Counsel's concerns about its merits.

Ruling snapshot

• Question: May the Taxpayer Advocate Service order Appeals to expedite review of a refund claim?
• Outcome: advice given
• Key authorities: IRC § 7811; Treas. Reg. § 301.7811-1(c); IRM 13.1.20.2(5), 13.1.20.3.1(2)

Full text (IRS public release)

ID:         CCA_2017080109224553
UILC:       7811.01-00

Number: 201739012
Release Date: 9/29/2017
From:
Sent: Tuesday, August 01, 2017 9:22:45 AM
To:
Cc:
Bcc:
Subject: FW: Counsel Opinion


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---------- forwarded me your email and asked me to respond to you. Since I don’t know
anything more about the case than what you have written below, it might be easier to
discuss this. However, based on IRM 13.1.20.2(5), TAS generally has conversations
with the IRS office before issuing a TAO. It sounds like you have done that, but I wasn’t
sure how long it’s been or whether you and ------ had a settled response date. If not, I’d
try to reach out to her again and explain that if you don’t hear from her by a certain date,
then you will issue a TAO. Alternatively, before issuing a TAO, you could issue an OAR
asking her to review the refund request.

Otherwise, if you want to issue a TAO, I don’t see any legal prohibition to ordering
Appeals to expedite review of the refund claim. Counsel’s opinion questions the merits
of the refund claim, but nonetheless, agrees that Appeals must consider it. Based on
Counsel’s advice below, treas. Reg. Section 301-7811-1(c), and IRM 13.1.20.3.1(2), it
appears that you have the law supporting you. If you decide to issue a TAO, you
cannot order Appeals to grant the refund claim (a substantive determination), but you
could order Appeals to expedite their review of the refund claim. Although you cannot
order Appeals to grant the refund claim, in your TAO you should advocate for the
taxpayer and explain why the refund claim should be granted based on the law and
facts of the case. In particular, you should focus on the issues Counsel raised with
respect to the merits of the claim.

If you’d like to discuss, please let me know. We should probably wait, though, until ------
returns, unless this needs immediate attention.

Best Regards,

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